IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 28, 2014 Session
IN RE V.L.J. ET AL.
Appeal from the Circuit Court for Blount County
No. E-24813 Tammy M. Harrington, Judge
No. E2013-02815-COA-R3-PT-FILED-DECEMBER 30, 2014
This is a parental termination case. It focuses on the three children of a married couple,
D.G.B. (Mother) and D.C.B. (Father), and Mother’s child (V.L.J.) from an earlier
relationship. The four children came into the custody of the Department of Children’s
Services (DCS) in 2009. Nearly four years later, DCS filed a petition to terminate the rights
of the parents. Following a trial, the court granted the petition based upon its finding (1) that
multiple grounds for termination exist and (2) that termination is in the best interest of the
children. Both findings were said by the trial court to be made by clear and convincing
evidence. Mother and Father appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which J OHN W.
M CC LARTY and T HOMAS R. F RIERSON, II, JJ., joined.
Andrew O. Beamer, Knoxville, Tennessee, for the appellant, D.G.B.
John T. Sholly, Knoxville, Tennessee, for the appellant, D.C.B.
Robert E. Cooper, Attorney General & Reporter, and Kathryn A. Baker, Assistant Attorney
General, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.
OPINION
I.
At the center of this case are four minor children – siblings E.B., I.B., and S.B., and
their older half-sister, V.L.J.1 (collectively, the Children). Mother and Father are the parents
of the younger three children, and Father is the stepfather of V.L.J. In 2008, Mother, Father
and the Children moved to Tennessee. DCS first became involved with the family in March
2009. V.L.J., then nine, threatened to commit suicide. In response, Mother admittedly
handed the child a knife and encouraged her to “go ahead” and do it. Mother explained it
was her attempt at “reverse psychology.” Following the incident, DCS took V.L.J. into
temporary, protective custody, and placed her in foster care. In the course of its ensuing
investigation, DCS discovered that Mother had an outstanding felony warrant out of Texas.
She was arrested, extradited and subsequently incarcerated there from April 2009 until
September 2010.
In Mother’s absence, Father maintained custody of the three remaining children. In
July 2009, DCS received a referral alleging that Father had physically abused I.B. E.B.
corroborated his brother’s assertion that Father was responsible for red marks observed on
I.B.’s back and neck, including a hand-shaped print. In its petition for temporary custody,
DCS further alleged that, in Father’s care, the children were living in “deplorable”
conditions. More specifically, DCS alleged that their home was filthy, with trash everywhere
and feces on the floors. Father’s rent was three months past due. The Children were removed
into protective custody. In juvenile court, they were adjudicated dependent and neglected
after Mother and Father waived a hearing and stipulated that the children were dependent and
neglected based on their living conditions.2
After all four children had entered state custody, a DCS team, together with Mother
and Father, developed permanency plans. The first plans, one for V.L.J. and another for the
other three children, were implemented in 2009 and had a goal of reunification or exit
custody with a relative. Several revised plans followed that essentially contained the same
requirements. Generally summarized, Mother and Father were required to obtain and
maintain appropriate housing; promptly notify DCS of any changes in circumstances; attend
the Children’s various appointments; obtain and maintain transportation and insurance;
1
In the same proceeding, the trial court terminated the parental rights of V.L.J.’s biological father,
J.J., whom the child had never met. At the time the petition was filed, J.J. was incarcerated for attempted
murder and child abuse. He did not participate in the termination proceeding. His case is not before us.
2
Father denied physically abusing I.B.
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obtain and maintain a legal income source for at least six months with verification provided
to DCS; provide child support; participate in mental health assessments; follow all related
recommendations and provide verification to DCS; follow all court orders; address any legal
issues; refrain from any illegal activity; and avoid any new criminal charges. In addition, the
plan required Father to complete anger management classes and provide documentation to
DCS, while Mother was required to complete an alcohol and drug assessment; submit to
random drug screens; and remain drug-free. Mother and Father signed the plans as well as
the criteria and procedures for termination that were provided to them. In 2011, the plans
were consolidated into a family plan covering all four children. Between 2009 and the time
of trial in 2013, the plan was updated five times. With the exception of a plan dated October
3, 2012, each plan was approved by the trial court, which expressly found that “the
responsibilities outlined in the plan are reasonably related to the achievement of the goal, are
related to remedying the conditions which necessitated foster care, and are in the best
interests of the [Children].”
In the summer of 2009, within weeks of the Children’s entry into foster care, Father
moved to Texas. He failed to notify DCS of his move. While in Texas, Father drove a truck
for a concrete company for over seven months and completed anger management classes.
In prison, Mother completed her GED and kept in contact with the Children by writing letters
to them as often as she could. After serving eighteen months, she was released in September
2010. By November 2010, Mother and Father had returned to Tennessee. They moved from
place to place – from the home of Father’s brother, to a one-bedroom and then a two-
bedroom apartment. Back in Tennessee, Father completed parenting classes and underwent
a mental health assessment which made no further recommendations.
A revised permanency plan dated January 2011 noted that the “parents do not have
a stable home, income, transportation or a concrete plan to obtain these essential items.” In
August 2011, Mother was ordered to pay child support. By September 2011, two years after
the initial permanency plan was established, Mother was employed and she and Father had
found housing. Transportation remained an issue and each was advised to maintain the
progress they had made, and avoid any new legal/criminal issues or otherwise engage in
illegal activity. The September 2011 revised plan expressly stated: “Should . . . each of the
parents fail to fully complete any and all of the tasks set forth in this Plan . . . [DCS] will
finalize in seeking permanent homes for each of the children.” Mother and Father signed to
indicate their understanding of and agreement with the plan. In ratifying the plan following
a November 2011 hearing, the juvenile court found that both parents were then in substantial
compliance with the plan requirements, but noted that the lack of a transportation plan still
presented a barrier to the Children exiting foster care.
In March 2012, Mother twice failed drug screens administered by DCS. The next
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month, Mother left Father and moved back to Texas. According to Mother, she did so
because her case worker had advised her that she would never regain custody of the Children
if she continued to live with Father. She remained in Texas until August 2012. On her return
to Tennessee, their case worker, Ms. Haley, met with Mother and Father and personally
reviewed the latest revised plan with them. Mother refused to submit to a drug screen at the
meeting. At trial, Ms. Haley testified that Mother told her she had been on various drugs
while in Texas. At the time of the meeting, Mother and Father were unemployed and did not
have stable housing. Since Mother had returned from Texas, she and Father briefly lived in
a tent in a friend’s backyard, then moved into a motel, and finally leased a room from an
elderly man to whom they provided assistance. The latter home, located on Grandview
Avenue, was, by all accounts, unsuitable for the Children. Mother testified that despite their
efforts at cleaning, the smell of cat urine lingered. In October 2012, both parents, who had
been regularly visiting the Children, were granted unsupervised visits. Some weeks later, the
privilege was revoked after Mother failed a drug screen.
On January 16, 2013, DCS filed a petition to terminate parents’ rights. At that time,
Mother and Father continued to reside in the Grandview Avenue home for several more
months. Father, who had been unemployed since leaving Texas three years earlier, had just
begun working for the same company as Mother. In February 2013, Father was ordered to
pay child support.
Trial began in September 2013. At that time, the Children ranged in age from six to
fifteen. All four had been in state custody since 2009. Mother denied that she was using
marijuana, but tested positive for the substance on the first day of trial. Between the time the
petition was filed and the time of trial, both parents became employed and moved from
Grandview Avenue to a suitable home. In June 2013, Mother enrolled in an intensive
outpatient drug treatment program. She said she had recently seen a mental health counselor
and had an appointment to see a psychiatrist in November 2013.
After trial, the court found, as to Mother, that she abandoned the Children by failing
to support them and that she failed to comply substantially with the terms of the parenting
plan. As to Father, the court found these same grounds plus abandonment by failure to
provide a suitable home and persistence of conditions applied. The court further determined
that termination of both Mother’s and Father’s rights was in the Children’s best interest.
Mother and Father, represented by separate counsel, filed timely notices of appeal.
II.
Mother and Father each filed an appellate brief. They present issues for our review
which we have restated slightly. As to Mother, the issues are as follows:
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1. Whether the trial court erred by terminating Mother’s parental
rights for failure to pay child support.
2. Whether the trial court erred by terminating Mother’s parental
rights for failure to comply substantially with the permanency
plan.
3. Whether there is clear and convincing evidence to support the
trial court’s finding that termination of Mother’s parental rights
is in the best interest of the Children.
Father presents the following issues:
1. There is insufficient evidence to support the trial court’s
finding that multiple statutory grounds exist to terminate
Father’s parental rights.
2. The trial court erred in terminating Father’s rights on the
ground of “persistence of conditions” absent a finding of
dependency, neglect, or abuse based on clear and convincing
evidence.
3. The trial court erred by finding that it was in the Children’s
best interest to terminate Father’s parental rights.
III.
With respect to parental termination cases, this Court has observed:
It is well established that parents have a fundamental right to the
care, custody, and control of their children. While parental rights
are superior to the claims of other persons and the government,
they are not absolute, and they may be terminated upon
appropriate statutory grounds. A parent’s rights may be
terminated only upon “(1) [a] finding by the court by clear and
convincing evidence that the grounds for termination of parental
or guardianship rights have been established; and (2) [t]hat
termination of the parent’s or guardian’s rights is in the best
interest[] of the child.” Both of these elements must be
established by clear and convincing evidence. Evidence
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satisfying the clear and convincing evidence standard establishes
that the truth of the facts asserted is highly probable, and
eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.
In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 at *11-12 (Tenn. Ct. App.
E.S., filed Oct. 4, 2011) (citations omitted).
On our review, this Court has a duty to determine “whether the trial court’s findings,
made under a clear and convincing standard, are supported by a preponderance of the
evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court’s findings
of fact are reviewed de novo upon the record accompanied by a presumption of correctness
unless the preponderance of the evidence is against those findings. Id.; Tenn. R. App. P.
13(d). Great weight is accorded the trial court’s determinations of witness credibility, which
will not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de novo with no
presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002). We
proceed mindful that only a single statutory ground must be clearly and convincingly
established in order to justify a basis for termination. In re Audrey S., 182 S.W.3d 838, 862
(Tenn. Ct. App. 2005).
IV.
As earlier noted, the trial court found that multiple grounds for termination exist as
to both Mother and Father. As previously noted, they each challenge the sufficiency of the
evidence to support grounds for termination. Two grounds are applicable to both parents
–abandonment by failure to provide child support and substantial non-compliance with a
permanency plan. With respect to these grounds, Tenn. Code Ann. § 36-1-113 provides as
follows:
(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this subsection
(g). The following grounds are cumulative and non-exclusive,
so that listing conditions, acts or omissions in one ground does
not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in §
36-1-102, has occurred;
(2) There has been substantial noncompliance by the parent or
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guardian with the statement of responsibilities in a permanency
plan pursuant to the provisions of title 37, chapter 2, part 4;
Tenn. Code Ann. § 36-1-113(g)(1), (2). In turn, Section 36-1-102, for purposes of subsection
(1), defines “abandonment,” in relevant part, to mean that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the
parental rights of a parent or parents or a guardian or guardians
of the child who is the subject of the petition for termination of
parental rights or adoption, that the a parent or parents or a
guardian or guardians either have willfully failed to visit or have
willfully failed to support or have willfully failed to make
reasonable payments toward the support of the child;
Tenn. Code Ann. § 36-1-102(1)(A)(i). Further, “token support” means that the support,
under the circumstances of an individual case, is not significant considering the parent’s
means. See Tenn. Code Ann. § 36-1-102(1)(B). We examine the grounds for termination in
light of the proof at trial.
V.
A.
We focus on the ground of abandonment by failure to pay child support. See Tenn.
Code Ann. §§ 36-1-113(g)(1); 36-1-102(1)(A)(i). In the present case, the four-month period
for purposes of establishing abandonment by non-support is September 16, 2012 until
January 15, 2013, the day before the petition was filed.
B.
The trial court found that Mother “abandoned the [C]hildren to the foster care system
by failing to support the [C]hildren.” In support of its finding, the court stated:
There are four children in custody, and the amount paid by
[Mother] is around $40 in the four months prior to the filing of
this petition. Based upon the testimony as to [Mother’s]
employment history, the Court finds that she willfully did not
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support the [C]hildren and made token payments. . . . The Court
also finds by clear and convincing evidence that she was advised
of the consequences of a failure to support.
Mother was ordered to pay child support of $423 per month, or $105.75 per child, to
begin in September 2011. The payment history reflects that, during the relevant four months
leading to the filing of the termination petition, Mother paid $41.97 per child, for a total of
$167.88 for all four children. Mother does not dispute the payment record, but submits that
the amount paid is not a “token” amount and that her failure to pay more was not willful
because she was unemployed during part of the time in question.
At trial, Mother testified that in September 2012, she returned to Tennessee and
resumed her employment at Waffle House. She had held the same job for over a year in
2011. Mother testified that she left Waffle House at the end of November 2012 because, she
said, her boss was “stealing from the company.” The proof thus shows that even while she
was earning an income, Mother paid zero child support in September, $21 per child in
October, and $14.75 per child in November. In this manner, and despite being aware that
the Children remained in state custody and that termination was a potential consequence of
her failure to provide support, Mother chose to voluntarily quit working. Even so, Mother
was without work for only about a month before she started a new job, with D & S
Residential, on January 3, 2013. During this time, Mother paid $5.69 per child in December
2012. In January 2013, she paid nothing.
The evidence does not preponderate against the trial court’s finding that Mother failed
to meet her child support obligation or, at best, made only sporadic, token payments. Clear
and convincing evidence exists to support the trial court’s finding of abandonment by failure
to pay support as a ground for terminating Mother’s parental rights.
C.
With respect to Father, he worked in Texas during 2009-10, and thereafter was
unemployed until 2013. He testified that during that time, he applied for 30 jobs a week,
including trucking companies and fast food places, and “nobody was hiring.” In January
2013, prompted by Mother’s employment, Father applied and was hired by the company by
whom she was employed.
Father does not dispute that he paid nothing during the critical four months. Instead,
before this Court, he asserts that he was unaware that he had to pay child support until he was
ordered to do so. In February 2013, a month after the petition was filed, Father was ordered
to begin paying child support of $420 per month, or $140 for each of his three children. At
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that time, Father had been employed for about a month and began paying as ordered with the
payments being deducted from his wages.
The position Father takes on appeal contradicts his testimony at trial. He was cross-
examined regarding his awareness of his child support obligation as follows:
[Counsel for DCS]: [Father], did you not think you ought to be
paying child support for your children prior to February of
2013?
[Father]: Yes, I thought I should be, but nobody ever said for me to do it.
[Q]: But you knew you should have been paying support?
[A]: Yes.
[Q]: And you didn’t do it?
[A]: No.
“In Tennessee, . . . the obligation to pay support exists even in the absence of a court
order to do so.” State v. Culbertson, 152 S.W.3d 513, 523-524 (Tenn. Ct. App. 2004) (citing
State v. Manier, No. 01A01-9703-JV-00116, 1997 WL 675209, at *5 (Tenn. Ct. App. Oct.
31, 1997)) (“The statute does not require the parent to first be placed under a court order.”).
In Culbertson, we elaborated on a parent’s duty of support, as follows:
Although the absence of a court order does not negate a parent’s
obligation to support his or her children, in order to safeguard a
parent’s fundamental right to the care and custody of his or her
child, parental rights may not be terminated based on
abandonment for failure to support unless clear and convincing
evidence shows that the parent’s failure to make reasonable
payments toward the support of his or her child was willful.
* * *
Failure of a parent to pay support under the termination statutes
is “willful” if the parent “is aware of his or her duty to support,
has the capacity to provide the support, makes no attempt to
provide support, and has no justifiable excuse for not providing
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the support.” “The willfulness of particular conduct depends
upon the actor’s intent. Intent is seldom capable of direct proof,
and triers-of-fact lack the ability to peer into a person’s mind to
assess intentions or motivations…. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a
person’s actions or conduct.”
Culbertson, at 524 (internal citations omitted). In the present case, the trial court found that
Father willfully failed to provide child support. The court stated:
This case has been going four years, and the only support that
has come in only came in after the filing of the termination
petition.
[Father has] done a lot, but as far as the issue of support, there
hasn’t been anything. And I do find it incredible, the testimony
about the number of applications and not being able to find a
job.
And further it is now obvious based upon the testimony that he
was able to be employed. During this four-year period of time
this could have happened, and it did not until the petition was
filed, and I find that extremely significant. Four years is a long
time to give him a chance to do what he only did after the
petition was filed.
In weighing the preponderance of the evidence, great weight is accorded the trial
court’s determinations of witness credibility, which shall not be reversed absent clear and
convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
The proof at trial showed that Father was able-bodied and otherwise capable of being
employed, as demonstrated by his work history before and after the filing of the petition. He
was admittedly aware of his duty to support the children, but chose not to secure a job and
make payments.
The evidence does not preponderate against the trial court’s findings in support of its
conclusion that Father abandoned the children by his willful failure to pay child support
throughout the four years leading up to the filing of the petition. The trial court did not err
in terminating Father’s parental rights on the ground of abandonment by non-support.
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VI.
A.
The trial court terminated both parents’ rights based on its finding that they failed to
comply substantially with the permanency plan. At trial, DCS presented evidence of the
2009 initial plan as well as multiple revised versions that contained essentially the same
requirements. At the time the plan was revised in July 2010, Mother remained incarcerated
and Father had followed her to Texas. As to strengths, the plan noted that Father “loves his
children,” and is bonded with them, maintains regular contact with DCS, does not abuse
alcohol or drugs, completed his mental health assessment and parenting classes, had
supervised contact with the children and had been “a great support for [Mother] in the past
in helping her straighten up her own life.” As for Mother, she completed her GED in jail and
wrote letters to the children as often as possible.
The trial court found that the parents did not have reliable transportation. Regarding
other responsibilities, Mother and Father were ordered to provide documentation reflecting
the disposition of all criminal cases and were ordered to participate in family therapy with
the Children. Mother was charged with going to DCS to schedule a mental health
assessment. A revised plan, dated September 2011, included the requirement for both
parents to abide by any child support orders. This plan added adoption as a permanency goal.
The plan noted that Mother and Father had secured housing, but had not yet lived in the home
for six months; and Mother was employed, but the parents “continue to struggle with
finances and transportation.” The parents were charged with maintaining their newly
obtained housing and employment, working vigilantly toward a consistent transportation
plan, and completing the steps outlined in earlier plans, including resolving and refraining
from incurring new legal/criminal issues; refraining from engaging in any illegal activity; and
completing required assessments and classes, with verification to DCS.
In April 2012, Mother moved back to Texas, where she remained until returning to
Tennessee in August. Upon her return, she and Father met with Ms. Haley, who personally
reviewed an updated plan with them. In September 2012, Mother returned to her job at
Waffle House, but then quit two months later. In October 2012, Mother and Father met with
DCS and Ms. Haley again and the plan requirements remained essentially the same. The plan
noted that Mother had paid only “minimal” child support and Father had paid none. As
strengths, the plan noted that the parents were “united” in their relationship again, that V.L.J.
was cooperative in counseling, and that Father had “cleared up all legal issues.” At the same
time, Mother had just been jailed again, the parents had been unable to maintain appropriate,
stable housing or employment, and they had not secured reliable transportation. In addition,
the plan noted that Mother needed to remain sober and drug free.
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The final revised plan was dated May 2013. At the time, both parents were employed
and had appropriate housing. Father and Mother continued to live together, and Mother
admitted to illegal drug use and had failed a drug screen on a court date that month.
B.
We quote pertinent portions of the court’s findings. As to Mother, the court stated:
Specifically, all the permanency plans included in one way or
another that there was appropriate housing to be maintained and
that transportation was to be stable. [Mother] was to participate
in a mental health assessment, follow the recommendations,
. . . and maintain negative drug screens, and also she was to
enter and successfully complete an intensive out-patient
program. Preceding the filing of this petition the Court does
find that there was not appropriate housing; there was not stable
housing; the mental health assessment had not been completed;
that IOP has only been entered into May of 2013; and that she
has not abstained from using illegal substances. The Court also
finds by clear and convincing evidence that [DCS] made
reasonable efforts to assist [Mother] in the permanency plan.
In further support of its finding that Mother failed to comply substantially with the
permanency plan requirements, the trial court addressed the fact that Mother had made
progress with the plan since the petition was filed. The court observed:
And so I find that by clear and convincing evidence as far as
[Mother] that there has been substantial noncompliance with the
Permanency Plan that relates to all four children.
The Court’s concerns as far as – I understand that [Mother] is
employed now. I understand that there has been testimony that
there is stable housing, and . . . that she is in intensive out-
patient.
[W]hat is most concerning for the Court is that it appears that
she is capable apparently of doing the things that were on the
Permanency Plan.
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However, these children have languished in custody for four
years before that was demonstrated. And the problem that the
Court has with that and the finding that she’s not been in
substantial compliance is, to paraphrase, it’s too little too late.
The children came into custody at a very young age. There has
been multiple attempts, even despite her incarceration periods,
to have effected the goals that were on the parenting plan.
Turning to Father, the trial court credited him with doing “just about everything that
was asked of him – “the Mental Health Assessment, he did it; parenting class, he did it;
visitation, is doing it,” and “[c]ounseling; he was there.” The court found, however, that
leading to the filing of the petition, “there was substantial noncompliance . . . once again with
housing and transportation.” In its final order, the court elaborated that the lack of stable and
suitable housing, stable employment, and transportation were the issues “that brought the
children into state’s custody and the biggest safety risk . . . .” The court thereby found clear
and convincing evidence of Father’s failure to comply substantially with the permanency
plan.
C.
We have reviewed the court’s findings in light of the entire record. We conclude that
the evidence does not preponderate against the trial court’s finding that both Mother and
Father failed to comply substantially with the permanency plan. In this Court, both parents
suggest that this ground was not sufficiently proven because, at one point, both DCS and the
trial court considered them to be in substantial compliance with the plan. They point to the
plan dated September 2011, which stated that “Mother and Father have completed most tasks
on previous plans” and were cooperative in working with DCS toward the goal of promoting
the Children’s best interest. At that point, the parents were essentially charged with
maintaining the progress they had made, forming a plan for consistent, safe, and legal
transportation, and working on any ongoing responsibilities such as completing all
assessments and following recommendations, paying child support, and implementing
parenting techniques they had learned. On ratifying the plan in November 2011, the juvenile
court found that Mother and Father were in substantial compliance, but noted that the lack
of transportation remained as a barrier to the Children being returned at that time.
Beginning in early 2012, much of Mother’s and Father’s forward momentum was
seemingly lost. In March 2012, Mother failed two random drug screens. She then quit her
job and moved back to Texas. Otherwise, throughout the pendency of the case, Mother and
Father remained together. After Mother returned in August, she and Father had no income,
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no stable housing, and still, no reliable transportation. Mother never completed a mental
health assessment and neither parent attended the younger children’s counseling and therapy
sessions. Both parents regularly visited the Children and were granted unsupervised
visitation in October 2012. Within weeks, the privilege was revoked afer Mother failed
another drug screen. Mother’s return to employment was also short-lived; she was employed
again at Waffle House in September 2012 and quit in November. Around the same time,
Mother and Father rented space in the Grandview Avenue home, but it was unsuitable for the
Children.
As we see it, the compliance required with a permanency plan is that which is
necessary to overcome the reasons that children are removed from a parent and placed in
foster care. Regaining custody requires parents to complete certain tasks and maintain
compliance with the plan to the point that it is appropriate and safe to return the children to
them. In our view, a permanency plan is not simply a list of tasks with boxes to be checked
off before custody is automatically restored. Rather, it is an outline for doing the things that
are necessary to achieve the goal of permanency in children’s lives. We think that where
“return to parent” is the goal, parents must complete their responsibilities in a manner that
demonstrates that they are willing and able to resume caring for their children in the long-
term, not on a month-to-month basis. In the present case, Mother and Father fell short when
they failed to maintain the significant strides they had made.
The evidence suggests that by the time of trial, some four years after the Children
were removed, Mother and Father had made some recent progress. As the trial court found,
however, it was by then simply “too little, too late,” to require these children to start over
again with no assurances that the parents’ latest changes in circumstances would last. Based
on the foregoing, we conclude that the evidence does not preponderate against the trial
court’s finding that there was substantial noncompliance with a permanency plan by both
Mother and Father as grounds for terminating their respective rights to the Children.
Lastly, as to this issue, Father asserts that DCS failed to use reasonable efforts to assist
him and Mother to make it possible for the Children to be returned. The proof at trial belies
Father’s assertion. Initially, DCS provided in-home services to assist Father with budgeting,
grocery shopping and cleaning. Ms. Haley took over as the family’s case worker in
November 2011. Prior to that time, DCS on three occasions provided Mother and Father
financial assistance to pay their utility bills. When DCS denied later requests for more
money, Ms. Haley contacted local churches and community organizations for assistance. In
addition, she made repeated referrals for an alcohol and drug assessment for Mother, and
provided information to Mother by which she was able to undergo one at no cost. Ms. Haley
twice procured housing applications and hand-delivered them to Mother and Father; took
Mother and Father to pay their bills; and supervised visits with the Children.
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For his part, Father testified that he could not recall receiving housing applications
from Ms. Haley or DCS sending anyone to his home to help with budgeting, cleaning or
shopping. Father did acknowledge that DCS provided help with the payment of the family’s
utilities. Father points out that in the November 2011 order ratifying the permanency plan,
the juvenile court stated that the “issue of whether DCS made reasonable efforts from
December 2010 and March 2011 is reserved.” The court did not further elaborate but, in the
same order, found that DCS, Mother, and Father were in substantial compliance with the
permanency plan. Moreover, the court found that, through the services or referrals it was
providing, DCS was “making reasonable efforts toward finalizing the permanency goal(s)”
of returning the Children to Mother and Father or to exit custody to live with a relative.
The evidence supports the trial court’s finding that DCS utilized reasonable efforts
to assist the parents toward regaining custody of the Children. Ultimately, Mother’s and
Father’s own efforts failed to match the assistance, knowledge, and encouragement that DCS
provided, and they were unable to maintain any sort of stability in their lives until it was too
late.
VII.
A.
The trial court terminated Father’s rights on two additional grounds – abandonment
by failure to provide a suitable home and persistence of conditions. We address each ground
in turn.
B.
Pursuant to Tenn. Code Ann. § 36-1-113(g)(1), as further defined in Section 36-1-
102(1)(A)(ii), abandonment by failure to provide a suitable home means that:
The child has been removed from the home of . . . a parent or
parents or a guardian or guardians as the result of a petition filed
in the juvenile court in which the child was found to be a
dependent and neglected child, as defined in § 37-1-102, and the
child was placed in the custody of the department or a licensed
child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds,
that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the
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circumstances of the child’s situation prevented reasonable
efforts from being made prior to the child’s removal; and for a
period of four (4) months following the removal, the department
or agency has made reasonable efforts to assist [] a parent or
parents or a guardian or guardians to establish a suitable home
for the child, but that the parent or parents or a guardian or
guardians have made no reasonable efforts to provide a suitable
home and have demonstrated a lack of concern for the child to
such a degree that it appears unlikely that they will be able to
provide a suitable home for the child at an early date. The efforts
of the department or agency to assist a parent or guardian in
establishing a suitable home for the child may be found to be
reasonable if such efforts exceed the efforts of the parent or
guardian toward the same goal, when the parent or guardian is
aware that the child is in the custody of the department[.]
In the present case, the applicable period is the four months after the younger three children’s
removal – July 21, 2009 until November 21, 2009.3 The trial court found as follows:
The children . . . were removed from the physical custody of
[Father] for environmental neglect. His plan and his issues
involved safe, suitable, and clean housing. First and foremost,
when the children first came into custody or soon thereafter
[Father] moved to Texas so there was no suitable home here in
the state of Tennessee to be evaluated. Once he returned with
[Mother] . . . they lived in a tent followed by a hotel and then the
house on Grandview. The Court finds by clear and convincing
evidence that none of these places constitute suitable housing
for children. The Court also finds by clear and convincing
evidence that [DCS] did make reasonable efforts to assist
[Father] in obtaining suitable housing including giving him
housing applications, helping with bills, etc.
As the court observed, the children were removed from Father’s care as a result of
living conditions described as “deplorable” and “filthy.” Father conceded that soon after the
children were placed in foster care, he moved to Texas. Clearly, this decision left Father
3
In his brief, Father incorrectly focuses on the four months immediately preceding the filing of the
termination petition.
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unable to establish a suitable home for the children in Tennessee, and there was no evidence
to suggest that he did so in Texas. When he finally returned, with Mother, in 2010,
appropriate housing remained a primary obstacle to the reunification of the family. Fast
forward two more years, and Mother and Father were living in a room in the Grandview
Avenue house surrounded by cats and the “horrendous” stench of cat urine. At trial, Mother
corroborated Ms. Haley’s testimony that the home was not suitable for the children.
The evidence does not preponderate against the trial court’s finding that Father
abandoned the children by failing to provide them with a suitable home in the months after
they were removed to foster care and for years afterward. The trial court did not err in
terminating Father’s rights pursuant to Tenn. Code Ann. § 36-1-113(g)(1), as further defined
in Section 36-1-102(1)(A)(ii).
C.
The trial court terminated Father’s rights pursuant to Tenn. Code Ann. § 36-1-
113(g)(3), on the ground commonly referred to as “persistence of conditions.” That section
provides as follows:
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 a
parent or parents or a guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned
to the a parent or parents or a 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;
Father takes the position that this ground cannot support termination of his rights
because there is no underlying finding of dependency, neglect, or abuse to support its
application. In short, we disagree. Father correctly recites the law: “Tenn. Code Ann. §
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36-1-113(g)(3) applies as a ground for termination of parental rights only where the prior
court order removing the child from the parent’s home was based on a judicial finding of
dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d 838, 874 (Tenn. Ct. App.
2005). He is incorrect, however, when he contends that no such finding exists here. The
record before us contains an April 2010 hearing order in which Mother and Father waived
an adjudicatory hearing following the removal of the younger three children. The order
provides, in relevant part, as follows:
The Parties waive the Adjudicatory Hearing and agree that there
is clear and convincing evidence . . . to sustain the emergency
removal and admits that the Department could substantially
prove the allegations in the Petition and that the child or children
were dependent and neglected at the time of the removal.
* * *
The father denies the allegations of physical abuse. . . . The
father admits the children were dependent and neglected due to
the conditions of the house at the time of the removal.
We think the hearing order certainly qualifies as a judicial finding of dependency and
neglect based on clear and convincing evidence. We next consider the sufficiency of the
evidence of persistence of conditions. Regarding Father, the trial court found that “during
the period of time that is almost the four years that the children have been in custody that the
significant issue that really brought them into custody persisted . . . the lack of an ability to
maintain stable employment and provide a home and support . . . .” As we have already
discussed, DCS allowed the parents some four years to achieve and maintain the level of
stability needed to bring the children home. In that time, Father failed to obtain suitable
housing, an income, or transportation. And, as the trial court repeatedly emphasized, Father
continued to stand by Mother, rather than standing up for the children. The trial court
returned to the subject of persistence of conditions as a part of its determination of the
children’s best interest. The court observed:
As far as [Father] is concerned, whether he has made an
adjustment of circumstance, conduct or conditions to make it
safe and in the [children’s] best interest to be in the home of the
parent . . . .
* * *
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I really go back to that when the children were young, two, three
and five and [Mother] . . . went into custody, [Father]
maintained for awhile. But then when the children went into
custody, he went to Texas, and he went to her instead of staying
here with the children.
As so I go back to that to sort of look to determine is he going
to fix the issue of knowing that she abuses drugs, knowing that
she has failed these drug screens, knowing that their supervised
visitation is tied together, knowing that he lost his unsupervised
visitation because of her, knowing that all of these issues
continue to persist. . . .
* * *
I think he’s done a good job of really trying to maintain by
attending the counseling sessions4 and attending visitation and
really trying, but it just doesn’t get there. It just doesn’t hold for
the Court that an adjustment enough has been made to his
circumstances in housing and his circumstances with [Mother]
and her issues to make it safe or in their best interests to be in
that home.
At trial, Father testified that he would leave Mother and move to his own home with the
children if that was required. In our view, the trial court implicitly rejected Father’s
testimony based on his conduct the last time he chose to join Mother rather than working to
resolve the issues that forced the children into foster care.
The evidence does not preponderate against the trial court’s finding of persistence of
conditions as a ground for terminating Father’s rights. Between the time the petition was
filed and the trial, Father became employed and was thereby able to pay child support as
ordered. At the same time, suitable housing continued to be a question – although the new
home he moved into may have been otherwise suitable for the children, Father and Mother
continued to live there together, and there was no evidence to show that Mother had ended
her long-term drug habit. The trial court did not err in terminating Father’s rights pursuant
to Tenn. Code Ann. § 36-1-113(g)(3).
4
The proof at trial indicated that Father had attended nearly all of V.L.J.’s counseling sessions, but
not those of the other three children.
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VIII.
Having found clear and convincing evidence that grounds for termination exist, we
next review the trial court’s determination of the Children’s best interest. Our review is
guided by reference to the non-exclusive list of statutory factors set out at Tenn. Code Ann.
§ 36-1-113(i). The stated factors are:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol,
controlled substances or controlled substance analogues as may
render the parent or guardian consistently unable to care for the
child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional
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status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
In undertaking its “best interest” analysis, the trial court considered each parent
individually. The court expressly found that factors (1), (2), (4), (7), and (9) applied in favor
of terminating both Mother’s and Father’s parental rights. We summarize pertinent portions
of the court’s findings:
First, based on Mother’s continued use of drugs, the trial court had “no difficulty in
finding by clear and convincing evidence that [Mother] has not made such an adjustment of
circumstance, conduct or conditions as to make it safe and in the [Children’s] best interest”
to be in the parents’ home. See Tenn. Code Ann. § 36-1-113(i)(1). The court found that this
factor applied equally to Father. Despite Father’s admitted awareness of Mother’s continuing
drug use, and its effect on his own rights to and relationship with the Children, the court
found that “there’s been no adjustment made by him whatsoever . . . to put the [C]hildren
before [Mother].”
Regarding factor (2) – whether the parents had effected a “lasting adjustment,” the
court similarly found that “again, there’s not been any significant time that anything has been
maintained. Efforts that were made by social service agencies have not been taken advantage
of to the full extent they could have, and the proof bears that out.”
Next, the court found that neither parent had a “meaningful” relationship with the
[C]hildren. While particularly acknowledging Father’s regular contact and visitation with
the Children, the court further found as follows:
These children have had someone there to take care of their
daily needs, the schoolwork, the feeding, the clothing, the
maintaining of the home, the setting of the boundaries, but that
meaningful relationship as far as those things that we think of as
the normal parental role has been the role of the foster family.
That has not been the role of the biological parents.
The court further found that neither parent had created a physical living environment
that was healthy and safe for the Children. As to Mother, the court found that “there has
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been a consistent history of the use of controlled substances on behalf of [Mother] to the
point that even when she got unsupervised contact she was not even able to abstain from the
use of drugs to maintain that for any significant period of time.” As to Father, the court
pointed to “a consistent history of the use of controlled substances on behalf of [Mother]
which is criminal activity and [Father] has had knowledge of it.” Lastly, the court reiterated
its finding that neither parent had consistently paid child support. Based on the evidence at
trial, and the recommendations of the Guardian ad litem, the trial court found that termination
of both parents’ rights was in the Children’s best interest.
In our view, the evidence paints a picture of two parents who undoubtedly love their
Children, but could not maintain stability in their own lives to the point that they could bring
the Children home. Nearly four years after the first child entered foster care, and the other
three soon followed, Mother and Father were unable or unwilling to remain employed,
provide a safe, suitable home and transportation system for the Children, or provide child
support. In other areas, Mother demonstrated that her drug use continued, and Father simply
accepted it. Moreover, Mother refused throughout the case to seek a mental health
assessment and treatment. For his part, Father seemingly placed his relationship with Mother
above his responsibilities for the Children. Just after they went to a foster home, Father left
Tennessee for Texas, where they both remained until Mother was released from prison. In
2012, Father, along with Mother, lost his right to unsupervised visits with the Children at
home after Mother failed another drug screen. The two remained together, and neither was
able to maintain the progress they had made under the permanency plans.
The trial court found it troubling, and telling, as do we, that by the time of trial,
Mother and Father showed that they were fully capable of completing many of the tasks
assigned to them. Unfortunately, for years, they failed to do enough to reunite the family.
By then, the three younger children were fully integrated into a foster home where they found
the love, support and stability they needed. Foster mother testified that, when they first
arrived, they all demonstrated hyperactivity, would not listen, and seemed unable to
comprehend directions on how to do basic tasks. In the years since, their behavior improved
and they understood there were consequences for their actions. All three were doing well in
school, participated in sports, and had monthly therapy sessions. Although theirs was not
a preadoptive home when the three siblings were taken in, the foster parents had since
decided they wanted to provide them with a “forever home.”
V.L.J., then fourteen, testified at trial. She was raised by her maternal grandmother
until she was nine because Mother had a drug problem. She returned to Mother’s custody
for less than a year before her removal. In the ensuing years, V.L.J. was in and out of
multiple foster homes with her stays often being short-lived because of her disruptive
behavior. V.L.J. had made progress in her continued counseling and therapy. Despite the
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difficulties she had experienced in foster care, V.L.J. was not interested in returning to
Mother, whom she had not seen in the three months before trial. She testified to her desire
to be adopted. V.L.J. reasoned that Mother and Father belonged together and “couldn’t take
care of each other without each other.” V.L.J. said she loved Mother, but did not think it
would be “the appropriate thing” for them to live together because they did not get along,
and, as the child put it, Mother “can barely keep up with herself. . . .”
On our review, we conclude that the evidence preponderates strongly in favor of the
trial court’s best interest determination. There was clear and convincing evidence to show
that, after four years in state custody, the Children’s interest was best-served by severing
Mother’s and Father’s ties to them, and freeing them to find permanent homes at an earlier
opportunity. The trial court did not err in its determination of the best interest of the
Children.
IX.
The judgment of the trial court terminating Mother’s and Father’s parental rights is
affirmed. Costs on appeal are taxed to the appellants, D.G.B. and D.C.B. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the court’s
judgment and the collection of costs assessed below.
_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE
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In Re V.L.J.
Combined Opinion