12/27/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 2, 2017
IN RE M.E.N.J., ET AL.
Appeal from the Juvenile Court for Knox County
No. 160106 Timothy E. Irwin, Judge
No. E2017-01074-COA-R3-PT
This is a termination of parental rights case. The Department of Children’s Services filed
a petition to terminate the parental rights of M.L.D.N. (mother) with respect to her first-
born child, M.E.N.J. While that petition was pending, mother had a second child. The
guardian ad litem for the two children later filed a petition to terminate the parental rights
of mother with respect to her second-born child, M.A.L.D.1 The trial court found clear
and convincing evidence supporting the termination of mother’s rights with respect to
both children based on three grounds. The court found (1) substantial noncompliance
with a permanency plan; (2) persistence of conditions that led to removal of the children;
and (3) failure to manifest an ability and willingness to personally assume custody or
financial responsibility of the children. The trial court also found clear and convincing
evidence that termination is in the best interest of the children. Mother appeals. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.
Ben H. Houston, II, Knoxville, Tennessee, for the appellant, M.L.D.N.
1
The children have different fathers. The rights of the fathers were terminated in previous
proceedings. They are not before us in this appeal.
1
Herbert H. Slatery, III, Attorney General and Reporter, and Michael C. Polovich,
Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.
OPINION
I.
M.E.N.J. was taken into custody on the motion of DCS. The trial court found that
M.E.N.J.’s safety could not be ensured while mother was living with a female friend of
hers. The children’s case worker testified that mother’s friend had an extensive history
with DCS. The friend’s parental rights with respect to two children had previously been
terminated. Mother was warned by DCS that M.E.N.J. would likely be taken from her if
she could not make other housing arrangements. Despite this warning, mother failed to
make other arrangements.
The permanency plan with respect to M.E.N.J. was developed with mother’s
participation. There were numerous requirements. The plan required that mother: (1)
obtain and maintain safe, clean, stable housing free from environmental hazards,
domestic violence, drug abuse, illegal activity, or other risks to the child; (2) complete a
mental health assessment and follow all resulting recommendations (based in part on
mother’s bipolar disorder for which she was not taking medication due to being
pregnant); (3) finish domestic violence classes for victims; (4) submit to random drug
screens and, upon failing a drug screen, complete an alcohol and drug assessment; (5)
openly and honestly disclose her history of substance use, and follow any resulting
recommendations until successfully finishing same; (6) refrain from associating with
drug users or dealers; (7) pass random drug screens to demonstrate sobriety (based in part
on mother’s admission of previous cocaine use); (8) resolve her then-pending criminal
charges for shoplifting and avoid further charges; (9) participate in therapeutic visitation
to develop parenting skills and an understanding of the impact of domestic violence on
children; (10) visit regularly; (11) obtain a stable source of legal income by completing
several job applications per week and obtaining employment for at least four months;
(12) obtain and maintain a reliable source of transportation, including public or third-
party transportation; (13) pay child support; (14) cooperate with court orders, DCS, and
other officials; and (15) maintain contact with the child’s case manager. Although this
plan has been periodically updated, most of the goals had stayed the same.
M.A.L.D. was born two months after M.E.N.J. was taken into DCS custody. On
the motion of the children’s guardian ad litem, M.A.L.D. was taken into DCS custody
when mother was discharged from the hospital. The juvenile court found that mother had
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not remedied the issues that led to M.E.N.J.’s removal. The court ruled that this
necessitated M.A.L.D.’s removal, as well.
Mother continued to reside with her female friend after her children were
removed. She brought her then-boyfriend, M.A.L.D.’s father, into her friend’s house.
However, her boyfriend’s drinking ultimately led to mother and her boyfriend being
asked to leave. Mother and her then-boyfriend went on to stay with various friends in the
Western Heights Housing Project or at the Knoxville Area Rescue Ministry. They also
briefly stayed with the girlfriend of her boyfriend’s brother. Mother’s relationship with
that boyfriend later ended. Mother then stayed briefly with another friend in Western
Heights.
Mother then met her new and seemingly-current boyfriend, T.R., who has an
extensive criminal record involving drugs and violence. Mother also began sleeping on a
pile of cardboard boxes behind the Tennessee Theatre. Mother stated in her answer that
she is not in a relationship with anyone, and that T.R. only watches her sleep in the alley
to protect her. However, the children’s case worker testified that in mother’s Facebook
postings, she described T.R. as her fiancé and the love of her life.
In order to bring mother a bus pass, the children’s caseworker met with her in the
alley where she was living. Mother told the case worker that her own mother had sent
her $250 for a hotel room for a week. Mother then returned to the alley, where she was
arrested for failing to pay child support. She told the case worker that, since her release,
“we” have been living with another couple in a tent. The case worker assumed that the
“we” was referring to herself and T.R.
The children’s case worker has made repeated attempts to find mother suitable
housing. She suggested to mother that she go to Knoxville Area Rescue Ministries,
where she could receive services and enter their transitional living program. Mother told
the case worker she did not want to go to KARM for fear of getting scabies, but she
allegedly told the children’s foster mother that she would not go to KARM because T.R.
was not allowed to stay with her there. The children’s case worker offered to assist
mother in filling out housing applications, and she told mother that she would drive her to
submit them. Mother, however, declined the case worker’s help, stating that she could
take care of any applications herself and that she was only interested in moving into
Western Heights. Despite being homeless at the time, mother would not consider any
other location.
Mother completed a mental health assessment and began attending the
recommended individual therapy and case management. However, she stopped attending
a few months later and also stopped working with her case manager a month later. She
3
claimed that she had been taken off her psychotropic medication due to her pregnancy.
However, when confronted with her medical records, mother admitted that she had not
returned for her psychiatric appointments and had voluntarily stopped taking her
medication. She completed another medical evaluation, but again failed to return. A few
months later, mother told the children’s case worker that she could not access therapy or
medication because she no longer had insurance. However, when the case worker made
mother an appointment for an updated mental health assessment at no cost to her, she had
great difficulty locating mother, who missed the scheduled appointments. Mother
eventually completed the evaluation a few months later, which recommended individual
therapy and medication. Mother has attended a few therapy appointments since then, but
has not begun taking any medication.
Mother has not failed any drug screenings since her children were taken into DCS
custody. However, most of her significant others have had serious alcohol or drug abuse
issues. Mother acknowledged that her previous boyfriend’s substance abuse issues were
a barrier to the return of her children. Despite this knowledge, mother chose to
subsequently become involved with T.R., an individual with substance abuse and
violence issues.
DCS filed a petition to terminate mother’s parental rights as to both children,
asserting that it had been six months since the children were taken from mother’s
custody, but that (1) mother’s conditions that led to the children’s removal still persist;
(2) mother has failed to substantially comply with the permanency plan; and (3) mother
failed to manifest an ability and willingness to personally assume custody or financial
responsibility of the children. DCS also asserted that termination of mother’s parental
rights is in the children’s best interest. It was the desire of DCS to place the children for
adoption. The children’s case worker testified that the children are “doing very well” in
the prospective adoptive home and that they have remained in the same home since they
entered foster care.
Mother responded with a handwritten answer, asserting that she was attempting to
get an apartment and is working to pay child support. She argues that she is not in a
relationship and has done everything requested of her by the case worker. She also
asserted that she asked her case worker for help with “fixing” her identification, and that
she began working after it was fixed. She argued that T.R. protects her in the alley and
that he has helped her “more than any of [her] friends have.” Mother states in her answer
that
[m]y children are better off with me than anyone else. The
foster mom is good but she is not their birth mom! No one is
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going to love my kids like I do. My children belong with
me[,] no one else. I am doing my hardest to get them back!
The children’s case worker testified that mother had visited the children and that the
visits overall went well.
The trial court found clear and convincing evidence supporting the termination of
mother’s rights based on DCS’s three asserted grounds. The trial court also found, by
clear and convincing evidence, that termination of mother’s rights was in the best interest
of the children. Mother appeals.
II.
Mother raises the following issues on appeal as taken verbatim from her brief:
Did the trial court err by terminating the Respondent’s
parental rights on the basis of persistent conditions pursuant
to Tenn. Code Ann. § 36-1-113(g)(3) where the Department
of Children’s Services failed to introduce sufficient evidence
into the record to prove persistent conditions as a ground for
termination by clear and convincing evidence?
Did the trial court err by terminating the Respondent’s
parental rights on the basis of substantial noncompliance with
the terms of the permanency plan pursuant to Tenn. Code
Ann. § 36-1-113(g)(2) where the Department of Children’s
Services failed to introduce sufficient evidence into the record
to prove substantial noncompliance as a ground for
termination by clear and convincing evidence?
Did the trial court err by terminating the Respondent’s
parental rights pursuant to Tenn. Code Ann. § 36-1-
113(g)(14) where the Department of Children’s Services
failed to introduce sufficient evidence into the record to prove
Tenn. Code Ann. § 36-1-113(g)(14) as a ground for
termination by clear and convincing evidence?
Did the trial court err by finding by clear and convincing
evidence that it was in the best interest of the minor child to
terminate the Respondent’s parental rights?
5
(Paragraph numbering in original omitted.)
III.
A parent has a fundamental right, based upon the federal and state constitutions, to
the care, custody, and control of his/her children. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174–75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent’s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings
are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).
To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables
the fact-finder to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these factual
findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
Once a ground for termination is established by clear and convincing evidence, the
trial court is tasked with conducting a best interest analysis. In re Angela E., 303 S.W.3d
at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best
interest[ ] analysis is separate from and subsequent to the determination that there is clear
and convincing evidence of grounds for termination.” Id. at 254. The existence of a
ground for termination “does not inexorably lead to the conclusion that termination of a
parent’s rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-
COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).
We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525–26 (Tenn. 2016) (“[W]e hold
that 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
6
termination is in the child’s best interest [ ], regardless of whether the parent challenges
these findings on appeal.”)
The Supreme Court has stated our standard of review:
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn.
R. App. P. 13(d). Under Rule 13(d), appellate courts review
factual findings de novo on the record and accord these
findings a presumption of correctness unless the evidence
preponderates otherwise. In light of the heightened burden of
proof in termination proceedings, however, the reviewing
court must make its own determination as to whether the
facts, either as found by the trial court or as supported by a
preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate
parental rights. The trial court’s ruling that the evidence
sufficiently supports termination of parental rights is a
conclusion of law, which appellate courts review de novo
with no presumption of correctness. Additionally, all other
questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of
correctness.
Id. at 523–24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)).
IV.
A.
Tenn. Code Ann. § 36-1-113(g) provides a cumulative, non-exhaustive listing of
the potential grounds upon which termination of parental rights may be based. Tenn.
Code Ann. § 36-1-113(g)(3) allows a court to terminate parental rights when
[t]he child has been removed from the home of the parent . . .
by order of a court for a period of six (6) months and:
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(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 . . . , 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 . . . in the near future; and
(C) The continuation of the parent . . . and child relationship
greatly diminishes the child’s chances of early integration
into a safe, stable and permanent home . . . .
With respect to subsection (g)(3) of § 36-1-113, the trial court found clear and
convincing evidence to support this ground of termination. The court observed as
follows:
the children have been removed by order of this Court for a
period of six (6) months; the conditions which led to their
removal still persist; other conditions persist which in all
probability would cause the children to be subjected to further
abuse and neglect and which, therefore, prevent the children’s
return to the care of Respondent; there is little likelihood that
these conditions will be remedied at an early date so that
these children can be returned to Respondent in the near
future; the continuation of the legal parent and child
relationship greatly diminishes the children’s chances of early
integration into a stable and permanent home.
Mother argues on appeal the only condition which led to removal of her children
that still existed at the time of trial was mother’s lack of appropriate housing. She asserts
that she has addressed her mental health issues by attending therapy regularly. She notes
that she has obtained a legal source of income. Mother argues that there is no evidence
beyond mere speculation that she will not be able to remedy her lack of appropriate
housing at an early date. Mother also asserts that the continuation of her relationship
with the children does not greatly diminish their chances of early integration into a safe,
stable and permanent home, since the only remaining stumbling block to reunification
with her children is a lack of stable housing.
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There is clear and convincing evidence in the record contradicting mother’s
arguments. The children have been in the care of their foster parents for well over one
year. The conditions that led to the children’s removal or other conditions that in all
reasonable probability would cause the children to be subjected to further abuse or
neglect and prevent the children’s safe return still also persist. Since leaving her friend’s
home – which was found by the court to be inappropriate housing – mother has resided
(1) with other friends, (2) in an alley in downtown Knoxville, (3) in a hotel for a week,
(4) in jail, and most recently, (5) in a tent, presumably with T.R., who has an extensive
criminal record involving drugs and violence. The children’s case worker has attempted
on multiple occasions to assist mother in finding appropriate housing. The case worker
urged her to go to Knoxville Areas Rescue Ministries. Mother, however, has rejected the
case worker’s help, apparently because T.R. could not reside with her at KARM. Mother
had begun attending her mental therapy appointments, but had not begun medication to
help with her bipolar disorder.
The record as described above demonstrates that there is little likelihood that
mother will remedy her housing situation or end her associations with individuals who
have histories of violence and drug use at an early date in the near future. The children
have both resided in the same foster home, where M.A.L.D. has resided since his birth.
Their foster parents have expressed interest in adopting the children. Allowing the
parent/child relationship to continue threatens the children’s chances of early integration
into a safe, stable, and permanent home. As a result, we hold that the evidence does not
preponderate against the trial court’s judgment with respect to persistence of conditions.
Furthermore, we hold, as a matter of law, that there is clear and convincing evidence
supporting the trial court’s judgment on this point.
B.
Tenn. Code Ann. § 36-1-113(g)(2) allows a court to terminate a parent’s rights
when the parent has failed to substantially comply with the statement of responsibilities
in a permanency plan. The Supreme Court has stated that, “[i]n the context of the
requirements of a permanency plan, the real worth and importance of noncompliance
should be measured by both the degree of noncompliance and the weight assigned to that
requirement.” In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002). “A trial court must
[also] find that the requirements of a permanency plan are ‘reasonable and related to
remedying the conditions which necessitate foster care placement.’ ” Id. at 547 (citing
Tenn. Code Ann. § 37-2-403(a)(2)(C)).
The trial court found that mother
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failed to comply in a substantial manner with those
reasonable responsibilities set out in the permanency plan
related to remedying the conditions which necessitate foster
care placement. She has not followed anything through to the
end. She did an alcohol and drug assessment and a mental
health assessment and then stopped participating in treatment;
the Department of Children’s Services arranged for her to
receive updated assessments and, once again, she failed to
complete treatment.
Mother argues that she had substantially completed almost all of the reasonable
requirements set out in the permanency plan. Mother asserts that, by the time of trial, she
had obtained a mental health assessment and began attending individual therapy sessions
regularly; visited with her children in an appropriate manner; and submitted to and passed
all drug screens. Mother also argues that DCS failed to present evidence in the record
demonstrating that she did not complete any classes requested of her by DCS or that she
was in need of medication to manage her mental health. Mother acknowledged that she
lacked safe and appropriate housing at the time of trial, but argues that she was in the
process of obtaining housing at the time of trial and that she has a high likelihood of
success in doing so in the near future, given her substantial progress on the other tasks set
forth in the permanency plan.
Despite mother’s protestations, the record indicates that mother was not in
substantial compliance with the permanency plan. Mother’s permanency plan required
that she obtain and maintain safe, clean, stable housing free from environmental hazards,
domestic violence, drug abuse, illegal activity, and other risks to the child. Not only has
mother failed to obtain such housing, she has actively refused assistance from the
children’s case worker to begin the process of applying for and obtaining such housing.
This refusal likely arises from her desire to remain with T.R., who, as previously stated,
has an extensive record of drug abuse and criminal activity.
Mother argues that she has substantially complied with her plan requirements as of
the time of trial. This is not the issue. The issue on grounds is whether she had
substantially complied prior to the filing of the petition to terminate. She clearly had not.
The evidence does not preponderate against the trial court’s findings with respect
to compliance with the permanency plan. Furthermore, we hold, as a matter of law, that
there is clear and convincing evidence to support the trial court’s determination on this
issue.
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C.
Tenn. Code Ann. § 36-1-113(g)(14) allows a court to terminate a parent’s rights
when
[a] legal parent . . . has failed to manifest, by act or omission,
an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child, and
placing the child in the person’s legal and physical custody
would pose a risk of substantial harm to the physical or
psychological welfare of the child.
Mother argues that, as of the time of trial, she had remedied almost all of the
conditions that initially led to the children’s removal. She asserted that she has been
attending therapy regularly and has obtained a legal source of income. She also argues
that there is no evidence beyond speculation that she will not obtain appropriate housing
at an early date, which is, according to her, the “last stumbling block remaining in [her]
path toward[s] reunification.” Additionally, mother asserts that the parent under (g)(14)
must fail to manifest an ability and willingness to assume custody or financial
responsibility. She argues that there is no evidence to support that she lacks a willingness
to assume custody or financial responsibility, since she has been working to pay her child
support.
We would again point out that the issue is not what the situation was at time of
trial but rather what the record shows at the time the petition was filed. The record
demonstrates that the elements of subsection (g)(14) have been established in this case.
Mother has failed to manifest an ability to personally assume legal and physical custody
or financial responsibility of the children, as she was living in a tent with several other
individuals at the time of trial and had only recently begun making child support
payments. She has also failed to manifest a willingness to do so, considering that she has
refused multiple attempts from her children’s case worker to help her apply for
transitional or low-income housing. Additionally, although mother does seem to love her
children and desire to see them during visits, placing the children in her custody would
pose a risk of substantial harm to the physical or psychological welfare of the children for
several reasons. The children are very young and have lived with their foster parents for
over a year now. Their foster parents have provided a clean, safe, stable, loving, and
supportive environment for the children. Removing the children from their current home
and placing them back in mother’s care would expose them to a high risk of mother either
failing to obtain or again losing appropriate housing or associating with individuals that
would potentially expose the children to drug use, domestic violence, or other illegal
activity. We hold as a matter of law that the evidence does not preponderate against the
11
trial court’s finding of clear and convincing evidence that mother failed to manifest an
ability and willingness to assume custody or responsibility of her children and that
placing the children in her care would pose a risk of substantial harm to the physical or
psychological welfare of the children.
V.
Based on our finding that statutory grounds warrant terminating mother’s parental
rights, we now focus on whether termination of her rights is in the best interest of the
children. When considering the issue of “best interest,” we are guided by the following
statutory factors set forth in Tenn. Code Ann. § 36-1-113(i), which provides that
[i]n determining whether termination of parental . . . rights is
in the best interest of the child pursuant to this part, the court
shall consider, but is not limited to, the following:
(1) Whether the parent . . . 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 . . . ;
(2) Whether the parent . . . 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 . . . has maintained regular visitation
or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent . . . 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 other person residing with the
parent . . . , has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or
another child or adult in the family or household;
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(7) Whether the physical environment of the parent’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 . . . consistently unable to care for the child in a
safe and stable manner;
(8) Whether the parent’s . . . mental and/or emotional status
would be detrimental to the child or prevent the parent . . .
from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent . . . has paid child support consistent
with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
“The above list is not exhaustive[,] and there is no requirement that all of the factors must
be present before a trial court can determine that termination of parental rights is in a
child’s best interest.” State Dep’t of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502
(Tenn. Ct. App. 2007) (citing State Dep’t of Children’s Servs. v. P.M.T., No. E2006-
00057-COA-R3-PT, 2006 WL 2644373, at *9 (Tenn. Ct. App., filed Sept. 15, 2006)). In
addition, “[t]he child’s best interest[] must be viewed from the child’s, rather than the
parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005) (citing
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).
The trial court found 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 her home despite reasonable efforts by available
social services agencies for such duration of time that lasting
adjustment does not reasonably appear possible. She has
maintained regular visitation with the children and she [does]
not use drugs; the Court gives her that. But she has no home
for the children. It is not just that she is without a healthy and
safe physical environment to offer the children, she is not in a
position to obtain one. These children are doing great. A
change of caretakers and physical environment is likely to
have a detrimental effect on their emotional and
psychological condition. [M.A.L.D.] is in the only home he
has ever known. [Mother] has shown neglect toward these
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children. It is apparent that [mother’s] mental and/or
emotional status would be detrimental to the children or
prevent [mother] from effectively providing safe and stable
care and supervision for the children. And [mother] has not
paid child support consistent with the child support guidelines
promulgated by the Department of Human Services pursuant
to T.C.A. [§] 36-5-101. She had a job for two weeks but was
fired for not showing up. She cannot support herself[,] let
alone provide for her children.
* * *
The Department of Children’s Services has made reasonable
efforts toward achieving permanency for these children.
The children are entitled to a safe, secure and loving home.
They are now thriving and have the opportunity to achieve
permanency through adoption. They deserve to know where
they will lay their heads at night. They should not have to
rely on somebody who is unreliable, to depend on somebody
who is undependable.
It is, therefore, in the best interest of [M.E.N.J.] and
[M.A.L.D.] and the public that all of [mother’s] parental
rights to these children be terminated and the complete
custody, control, and full guardianship of the children be
awarded to the State of Tennessee, Department of Children’s
Services, with the right to place them for adoption and to
consent to such adoption in loco parentis.
(Numbering in original omitted.)
Mother argues that the preponderance of these facts weigh in her favor. She
asserts that she has regularly visited with her children; that the oldest child lived the
majority of his life in her care; and that there is no evidence that the children are not
closely bonded with her. She also argues that she has made significant strides toward
addressing DCS’s concerns by obtaining a mental health assessment, beginning to attend
therapy on a regular basis, visiting consistently with her children, and passing her drug
screens. Mother further asserts that she has never abused or neglected the children and
that their removal was based solely on her mental health and housing issues as stated by
the juvenile court at the time of the children’s removal. She also argues that she is now
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paying her child support and that there is no testimony from a mental health professional
asserting that the children would be harmed emotionally, psychologically, or medically
by entering her care. Finally, mother asserts that, given her progress in other areas, it is
reasonable to assume that she will obtain safe and appropriate housing in the near future.
However, the factors in Tenn. Code Ann. § 36-1-113(i) indicate that it is in the
children’s best interest that mother’s rights be terminated. Mother has not made such an
adjustment in her circumstances, conduct, or conditions as to make it safe or in the
children’s best interest to be in her home, as she has failed to locate or attempt to locate
safe, clean housing for herself and the children and still associates with inappropriate
individuals. Mother has also failed to effect a lasting adjustment after reasonable efforts
by available social services agencies. She has not made a lasting adjustment to her
circumstances and those of the children. She does not have appropriate housing; she does
not regularly attend mental health sessions, and she has not provided an appropriate
environment for the children. Mother has maintained regular visitation and contact with
the children, and could very reasonably have a meaningful relationship with them, even
though they have not lived with her for over a year. However, the change of caretakers
and physical environment would likely detrimentally impact the children’s emotional,
psychological, and medical condition, considering how long they have lived with their
foster family and how successfully they have thrived in the foster home. Mother never
showed brutality, abuse, or neglect to the children outside of having inappropriate
housing, but she continues to associate with individuals like T.R., who has a record
indicating that he would expose the children to such conduct. The physical environment
of mother’s home is not healthy and safe, as mother currently does not reside in a house.
This Court recognizes mother’s efforts in obtaining a job and sympathizes with her
very difficult situation. Mother obviously cares about her children based on her efforts at
the trial level and in this appeal, as well as her recent steps toward seeking mental health
treatment and paying her child support. The issue, however, is what is in the best interest
of the children. We hold that the evidence does not preponderate against the trial court’s
finding that termination is in the best interest of the children. Furthermore, we hold, as a
matter of law, that there is clear and convincing evidence to support the trial court’s best
interest determination.
VI.
The judgment of the trial court is affirmed. Costs of appeal are assessed to the
appellant, M.L.D.N. The case is remanded to the trial court for enforcement of that
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court’s judgment and for collection of costs assessed below.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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