In Re: I.E.A. , 2016 Tenn. App. LEXIS 503 ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 1, 2016
IN RE I.E.A., ET AL.
Appeal from the Juvenile Court for Shelby County
No. AA3892 Dan H. Michael, Judge
___________________________________
No. W2016-00304-COA-R3-PT – Filed July 20, 2016
___________________________________
The case involves the termination of Mother‘s parental rights on the ground of severe abuse.
The trial court terminated Mother‘s parental rights to the two children at issue based on two
previous severe abuse findings against Mother: (1) a finding as to the children at issue during
the dependency and neglect portion of the underlying proceedings; and (2) a finding that the
children‘s older half-sibling was the victim of severe abuse prior to the children at issue‘s
birth. The trial court further found clear and convincing evidence that termination was in the
children‘s best interest. Although we conclude that the trial court erred in relying on a non-
final order as res judicata of the ground of severe abuse, we find that the trial court did not
err in relying on a prior final order of severe abuse as to the children at issue‘s half-sibling.
We also affirm the trial court‘s finding that termination of Mother‘s parental rights is in the
children‘s best interests.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in
Part; Affirmed in Part; and Remanded.
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO, and RICHARD H. DINKINS, JJ., joined.
James Franklin, Jr., Memphis, Tennessee, for the appellant, Melissa G. A.
Herbert H. Slatery, III, Attorney General and Reporter; and Alexander S. Rieger, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children=s Services.
OPINION
Background
This case involves the termination of Respondent/Appellant Melissa G.A.‘s
(―Mother‖) parental rights to her twin daughters, I.E.A. and I.L.A. (―the children‖ or ―the
twins‖), born in 2014. On August 7, 2014, Petitioner/Appellee Tennessee Department of
Children‘s Services (―DCS‖) filed a petition in the Shelby County Juvenile Court to find the
twins dependent and neglected.1 The petition alleged that the children were taken into DCS
custody immediately after their birth when Mother tested positive for marijuana during the
delivery. The petition indicated that Mother denied using marijuana, but admitted to using
cocaine prior to learning about her pregnancy. According to the petition, the children were
administered meconium tests, which tested positive for cocaine.2 The petition alleged that, as
a result, the children were the victims of severe abuse.
On April 9, 2015, E.F.T. (―Intervening Petitioner‖), a non-relative who had previously
had custody of the twins‘ half-sibling, filed a petition to intervene. The intervening petition
asked that custody of the twins be awarded to her, rather than DCS.
On June 28, 2015, a juvenile court magistrate held a hearing on the dependency and
neglect petition. The magistrate‘s findings and recommendations were filed on August 13,
2015. Relevant to this appeal, the magistrate adjudicated the children dependent and
neglected and the victims of severe abuse based upon clear and convincing evidence. The
magistrate also denied the intervening petition. The findings and recommendation outlined
the procedure for appealing the finding to the juvenile court judge.
Intervening Petitioner filed a timely motion for rehearing of the magistrate‘s findings
and recommendations, and a de novo hearing was scheduled on DCS‘s dependency and
neglect petition. In the meantime, on August 15, 2015, DCS filed a petition for termination of
parental rights in the Shelby County Juvenile Court, under the same docket number as the
dependency and neglect action, asserting that Mother‘s parental rights to both children be
terminated on the ground of severe abuse.3 The petition generally alleged the same facts as
1
The documents in the record from the dependent and neglect portion of the trial court proceedings are
not in chronological order. In addition, neither party provides appropriate references to where specific
documents from the dependency and neglect proceedings, which were submitted as exhibits during trial, may
be found in the record on appeal. In order to fully comply with Rules 24 and 27 of the Tennessee Rules of
Appellate Procedure, as well as promote judicial economy, especially in expedited termination cases, all parties
should make a better effort to identify specific documents and organize the appellate record.
2
Meconium is ―a material that collects in the intestines of a fetus and forms the first stools of a
newborn.‖ Mosby’s Dictionary of Medicine, Nursing, & Health Professions 1105 (9th ed. 2013).
3
The petition also asserted that the children‘s biological father‘s parental rights should be terminated
on other grounds. The children‘s father‘s parental rights were terminated by order of December 29, 2015. The
children‘s father, however, is not a party to this appeal; therefore, we will generally omit any reference to the
proceedings as they relate solely to him.
The petition also alleged the ground of abandonment as to Mother; however, DCS abandoned that
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had been alleged in the dependency and neglect petition and indicated the dependency and
neglect matter was ―currently set for a rehearing.‖ The petition further alleged that one of
Mother‘s older children had previously been adjudicated the victim of severe child abuse for
drug exposure on February 3, 2010.
On November 23, 2015, the juvenile court, with Substitute Judge David S. Walker
sitting as special judge, conducted a de novo hearing on the dependency and neglect petition.
The appellate record does not contain a transcript from that hearing.
The juvenile court, again with Substitute Judge David S. Walker sitting as special
judge, conducted a hearing on the termination of parental rights petition on December 10,
2015. A DCS worker testified regarding Mother‘s positive drug test for marijuana during the
children‘s delivery and the children‘s later meconium test showing cocaine exposure.
According to the DCS worker, a meconium test on the children immediately after their birth
revealed that they had been exposed to cocaine. The DCS worker could not explain how
Mother tested positive for only marijuana, while the children tested positive for only cocaine.
Mother admitted that cocaine was her ―drug of choice,‖ but denied that she had used
cocaine once she learned of her pregnancy. In addition, Mother adamantly denied that she
used marijuana during her pregnancy. Mother also testified to her ongoing efforts to refrain
from drugs, her success at drug rehabilitation programs, and the fact that she had been sober
for two years at the time of trial. A DCS worker also testified that after the children‘s births,
all of the urine drug screenings that were administered to Mother came back negative for
illegal drug use. Testimony showed, however, that Mother failed two hair follicle drug tests
administered in February and June 2015, both of which tested positive for cocaine. Mother
testified that in order to dispute the February 2015 positive result, she obtained a private hair
follicle drug screen in March 2015, which was negative for illegal drug use.
After the children were removed from Mother‘s custody, she was allowed supervised
visitation. A DCS worker testified that Mother participated in supervised visitation with the
children, but that Mother often needed breaks and assistance in caring for the children, that
Mother accepted phone calls rather than interacting with the children at times, and that
Mother was often hostile and aggressive with adults at the visitations. According to a DCS
worker, the children had only a ―small bond‖ with Mother, and it would therefore be
detrimental to remove the children from their current home. The children‘s pre-adoptive
father testified to his love for the children, their health and stability in his home, and his
desire to adopt the children. At the conclusion of the proof, DCS asked that Mother‘s
parental rights be terminated based upon ―two prior severe abuse findings against her,‖ the
2010 severe abuse finding with regard to an older child and the 2015 severe abuse finding by
the juvenile magistrate.
ground at trial.
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On December 29, 2015, the special judge entered an order on the rehearing in the
dependency and neglect action. Relevant to this appeal, the special judge found that:
The June 18, 2015 order—specifically the ruling of dependency
and neglect and severe abuse against [Mother]—was not
challenged, and therefore that order is certified as final as to the
findings made against [Mother].4 All parties, including
[Intervening Petitioner] and [Mother], stipulated to this on the
record.
The special judge also confirmed the denial of the intervening petition.
On the same day, December 29, 2015, the special judge entered a final order on the
termination of parental rights petition, terminating Mother‘s parental rights on the ground of
severe abuse. The special judge found clear and convincing evidence that the children were
the victims of severe abuse, based upon the prior finding made by the magistrate at the June
18, 2015 hearing. According to the special judge, because Mother ―did not file for a
rehearing or appeal that matter[,] the order is final as to that issue.‖ The trial court also cited
the 2010 finding of severe abuse as to Mother‘s older child. Finally, the trial court found
clear and convincing evidence that termination of Mother‘s parental rights was in the
children‘s best interests. Mother thereafter filed a timely notice of appeal.
Issues Presented
Mother raises three issues for our review, which are taken from her appellate brief:
1. Whether the August 13, 2015 order finding severe abuse was a
final judgment, considering that a de novo hearing held in
juvenile court on November 23, 2015, requiring the attendance
of all the parties, and de novo dispositional hearing?
2. Whether the termination of parental rights is in the best interests
of the minor children?
3. Whether it was reversible error for Special Judge Walker to sit
as a substitute judge, though the procedures set forth in
Tennessee Code Annotated Section 17-2-118 were not
followed?
4
The juvenile court and DCS consistently refer to the findings and recommendations of the juvenile
magistrate on the dependency and neglect petition as the ―June 18, 2015 order.‖ While the order was signed by
the trial court on June 18, 2015, it was not filed, nor was a certificate of service affixed thereto, until August
13, 2015.
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Discussion
As recently explained by the Tennessee Supreme Court:
A parent‘s right to the care and custody of her child is
among the oldest of the judicially recognized fundamental
liberty interests protected by the Due Process Clauses of the
federal and state constitutions. Troxel v. Granville, 530 U.S. 57,
65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption
of Female Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk
v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental
rights, although fundamental and constitutionally protected, are
not absolute. In re Angela E., 303 S.W.3d at 250. ―‗[T]he
[S]tate as parens patriae has a special duty to protect minors . . .
.‘ Tennessee law, thus, upholds the [S]tate‘s authority as parens
patriae when interference with parenting is necessary to prevent
serious harm to a child.‖ Hawk, 855 S.W.2d at 580 (quoting In
re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see
also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re
Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).
Our termination statutes identify ―those situations in which the state‘s interest in the
welfare of a child justifies interference with a parent‘s constitutional rights by setting forth
grounds on which termination proceedings can be brought.‖ In re Jacobe M.J., 434 S.W.3d
565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)). A
person seeking to terminate parental rights must prove both the existence of 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 D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent‘s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination
and the best interest inquiry must be established by clear and convincing evidence. Tenn.
Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing
evidence ―establishes that the truth of the facts asserted is highly probable . . . and eliminates
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any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.‖ In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
―produces in a fact-finder‘s mind a firm belief or conviction regarding the truth of the facts
sought to be established.‖ Id. at 653.
In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review as set forth in Tennessee Rule
of Appellate Procedure 13(d). As to the trial court‘s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or as
supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002).
When the resolution of an issue in a case depends upon the truthfulness of witnesses,
the trial judge, who has had the opportunity to observe the witnesses and their manner and
demeanor while testifying, is in a far better position than this Court to decide those issues.
See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any
witness‘s testimony lies in the first instance with the trier of fact, and the credibility accorded
will be given great weight by the appellate court. Walton v. Young, 950 S.W.2d 956, 959
(Tenn. 1997).
I.
Here, only one ground for termination of parental rights was alleged against Mother at
trial: severe abuse pursuant to Tennessee Code Annotated Section 36-1-113(g)(4), which
provides that:
The parent or guardian has been found to have committed severe
child abuse as defined in § 37-1-102, under any prior order of a
court or is found by the court hearing the petition to terminate
parental rights or the petition for adoption to have committed
severe child abuse against the child who is the subject of the
petition or against any sibling or half-sibling of such child, or
any other child residing temporarily or permanently in the home
of such parent or guardian; . . . .
Severe child abuse is defined as, inter alia: ―The knowing exposure of a child to or the
knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily
injury or death and the knowing use of force on a child that is likely to cause serious bodily
injury or death[.]‖ Tenn. Code Ann. § 37-1-102(b)(21).
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Here, the juvenile court specifically cited its prior finding of severe abuse at the June
18, 2015 adjudicatory hearing, memorialized in an order filed August 13, 2015, in finding
that there was a prior order finding that Mother had committed severe child abuse against the
children. Mother argues, however, that because the magistrate‘s initial finding of severe
abuse was pending at the time of the trial on the termination of parental rights petition, the
trial court was not entitled to rely on the prior non-final order of severe abuse. In support,
Mother cites this Court‘s Opinion in In re Shyronne D.H., No. W2011-00328-COA-R3-PT,
2011 WL 2651097 (Tenn. Ct. App. July 7, 2011), where we held that a finding of severe
abuse in a dependency and neglect adjudication was not entitled to preclusive effect in a
subsequent termination proceeding where an appeal from the dependency and neglect
adjudication was still pending. Id. at *7 (noting the general rule that ―a judgment is not final
and res judicata where an appeal is pending‖).
We need not tax the length of this Opinion with an analysis of whether the trial court
was actually entitled to rely on the magistrate‘s previous finding of severe abuse, as DCS
concedes in its appellate brief that the trial court erred in relying on the prior finding of
dependency and neglect from the June 18, 2015 hearing before the magistrate. According to
DCS‘s brief:
[DCS] does not defend the trial court‘s use of the order of
severe abuse against [the children] as res judicata. . . . While it is
understandable that the trial court acted upon Mother‘s
stipulation that she did not challenge the severe abuse finding,
the dependency-and-neglect order was nonetheless non-final. It
could not be used as res judicata [to support the trial court‘s
finding of severe abuse in the termination proceeding.]
Based upon DCS‘s concession, we will assume, arguendo for purposes of this appeal, that
the trial court was not entitled to rely on the previous finding of severe abuse made by the
magistrate in the dependency and neglect portion of the proceedings.5
5
We note that the issue in this case concerning the finality of the severe abuse finding as part of the
dependency and neglect adjudication is further complicated by the fact that, unlike the typical case, the
termination of parental rights petition was filed in the juvenile court under the same docket number as the
dependency and neglect action. See e.g., In re Eric J.P., No. M2012-02082-COA-R3-PT, 2013 WL 1788547,
at *1 (Tenn. Ct. App. Apr. 24, 2013) (involving separate proceedings for the dependency and neglect action
and the termination action, one filed in juvenile court and one filed in chancery court); In re Dakota C.R., 404
S.W.3d 484, 497 (Tenn. Ct. App. 2012 (involving separate proceedings, both filed in juvenile court, but
separately docketed and appealed); Shyronne, 2011 WL 2651097, at *7 (involving separate proceedings for
the dependency and neglect action and the termination action, one filed in juvenile court and one filed in
circuit court); In re Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App. 2010) (same).Thus, while a
dependency and neglect adjudication and disposition may become final prior to a hearing on a separately filed
and docketed termination petition, it does not appear that any final order could result from the this case until
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DCS asserts, however, that the trial court‘s error is not fatal to this appeal, as the trial
court was presented with a prior finding of severe abuse as to the children‘s half-sibling that
was final for purposes of res judicata. Specifically, DCS cites a February 3, 2010 order
adjudicating the children‘s older half-sibling as the victim of severe abuse by Mother due to
drug exposure. According to DCS, the February 3, 2010 final order is sufficient to support
the severe abuse finding against the children at issue in this case because Tennessee Code
Annotated Section 36-1-113(g)(4) merely requires a severe abuse finding against either ―the
child who is the subject of the petition or against any sibling or half-sibling of such child.‖
DCS therefore argues that because the February 3, 2010 severe abuse finding is undisputedly
a final order against Mother with regard to the severe abuse of the children‘s half-sibling, the
order is entitled to preclusive effect with regard to the severe abuse of the children subject to
this appeal.
Neither party offers any caselaw or argument in their briefs regarding the effect of a
years-old severe abuse finding during a proceeding to terminate the parental rights of
children that were not yet born at the time of the prior abuse and order. We are reluctant to
agree with DCS‘s apparent contention that once a parent is found to have committed severe
abuse against one child, that finding may be used ad infinitum to support a finding of severe
abuse against any children born years later. Caselaw demonstrates that the severe abuse
ground is typically applied to a child‘s sibling where the child who is not the victim of direct
abuse had been born prior to the instances of abuse against his or her younger sibling. See,
e.g., In re Eric J.P., No. M2012-02082-COA-R3-PT, 2013 WL 1788547, at *1 (Tenn. Ct.
App. Apr. 24, 2013); State, Dep’t of Human Servs. v. Hauck, 872 S.W.2d 916, 921 (Tenn.
Ct. App. 1993). Furthermore, while this Court has held that ―the statutory language defining
severe child abuse clearly reflects an intent that actions before a child is born can constitute
abuse to a child that is born injured by those actions,‖ see In re Benjamin M., 310 S.W.3d
844, 850 (Tenn. Ct. App. 2009), it stretches credulity to suggest that the children at issue in
this appeal were ―injured by‖ Mother‘s ―actions [in committing severe child abuse in 2010]
before [the] child[ren] [were] born[.]‖ Id.In interpreting a statute, however, we are constrained to apply the plain meaning of the
words used by the General Assembly. As explained by the Tennessee Supreme Court:
A court should presume that ―the Legislature used each word in
the statute purposely and that the use of these words conveys
some intent and had a meaning and purpose.‖ Locust v. State,
912 S.W.2d 716, 718 (Tenn.Ct.App.1995) (citation omitted); see
the pending termination petition was finally adjudicated. See Tenn. R. App. P. 3(a) (noting that an order that
―adjudicated fewer than all the claims‖ is not a final judgment for purposes of appeal).
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also Bryant v. HCA Health Services of No. Tennessee, Inc., 15
S.W.3d at 809. In sum, ―[w]here words of the statute are clear
and plain and fully express the legislature‘s intent, there is no
room to resort to auxiliary rules of construction, and we need
only enforce the statute as written.‖ Browder v. Morris, 975
S.W.2d at 311 (citations omitted).
State v. Johnson, 79 S.W.3d 522, 526 (Tenn. 2002). Here, Tennessee Code Annotated
Section 36-1-113(g)(4) specifically states that a ground for termination exists if the parent
has been found to have committed severe abuse ―under any prior order of a court . . . against
the child who is the subject of the petition or against any sibling or half-sibling of such
child.‖ (Emphasis added). The plain language of the statute does not require that the prior
order have any specific temporal proximity or nexus to the current child at issue or the
proceedings currently being adjudicated.6 Based upon the plain language of the statute, there
can be no dispute that Mother was found to have committed severe child abuse against the
child‘s half-sibling in the 2010 court order.
In support of our conclusion regarding the plain language of the statute, we note that
at least two reported cases have construed Tennessee Code Annotated Section 36-1-113(g)(4)
to support a severe abuse finding of the child at issue when the actual abuse of the child‘s
sibling or child residing in the same home occurred prior to the birth of the child at issue in
the termination proceeding. See In re Keara J., 376 S.W.3d 86 (Tenn. Ct. App. 2012); In re
H.E.J., 124 S.W.3d 110 (Tenn. Ct. App. 2003). In Keara, an older child was removed from
the parents‘ home due to allegations that the mother failed to disclose her HIV status during
the pregnancy with the child and that parents failed to provide the child with proper nutrition
and essential care. Id. at 89. Mother gave birth to a second child one month after the removal,
which child was also removed from the home. Id. The trial court eventually terminated
parents‘ parental rights based upon severe abuse as to both children. Id. at 93. On appeal, the
Court of Appeals first analyzed the evidence presented regarding the severe abuse of the
older child, concluding that there was ample evidence that she was the victim of severe abuse
at both parents‘ hands. Id. at 102. The Court of Appeals also affirmed the ground of severe
abuse as to the younger child due to the severe abuse that parents had committed against the
older child prior to the younger child‘s birth. Id. at *107.
6
As previously discussed, termination proceedings implicate parents‘ fundamental rights. See
Carrington, 483 S.W.3d at 522–23. Where a statute is subject to more than one interpretation, we must
interpret the statute so as to sustain its constitutionality. See Ellenburg v. State, 215 Tenn. 153, 157, 384
S.W.2d 29, 31 (Tenn. 1964). In this case, Mother raises no argument regarding the ambiguity of Tennessee
Code Annotated Section 36-1-113(g)(4) or the constitutionality of utilizing the 2010 severe abuse finding as a
ground for termination in this case. Accordingly, we need not address these issues. See Tenn. R. App. P. 13(b)
(―Review generally will extend only to those issues presented for review.‖).
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Another case, H.E.J., involved rather horrific facts. See H.E.J., 124 S.W.3d at 111–
12. In H.E.J., a private adoption agency sought to terminate the parental rights of the
biological father of twins on the ground of severe abuse to a child that had previously lived in
father‘s home. Id. at 111. The petition alleged that the twins were the product of an
incestuous relationship between mother and father, who was mother‘s step-father. Id. at 112.
There was no testimony presented that father abused the twins. Instead, although testimony at
trial indicated that while the twins were born after the mother came of age, father initiated the
incestuous relationship when mother was a minor living in his home. Id. at 114. The trial
court found that clear and convincing evidence existed that father committed severe child
abuse against mother while she was a minor living in his home. Id. (citing Tenn. Code Ann. §
36-1-113(g)(4) (considering abuse not only to a sibling or half-sibling of the child at issue,
but also to ―any other child residing temporarily or permanently in the home of such parent or
guardian‖). On appeal, father argued that the finding of severe abuse with regard to mother
was insufficient to sustain a severe abuse finding with regard to the twins because the abuse
―did not occur during the lifetime of the twins.‖ The Court of Appeals rejected this argument,
however, based upon the plain language of the statute. As the Court explained, father‘s
argument was ―an attempt to read into the statute a limitation that is not supported by its text,
or by any case of which we are aware.‖ Id. at 115. The Court of Appeals therefore affirmed
the finding of severe abuse against father as a ground for termination of his parental rights to
the twins. Id.
Based on the foregoing, we conclude that the severe abuse that Mother committed
against her oldest child is sufficient to constitute severe abuse against the children at issue
pursuant to Tennessee Code Annotated Section 36-1-113(g)(4). Mother does not assert that
the February 3, 2010 order containing the severe abuse finding against her is not final or that
her older child should not be considered the child‘s sibling or half-sibling. See Tenn. Code
Ann. § 36-1-102(b)(45) (defining a ―[s]ibling‖ as ―anyone having a sibling relationship‖); -
102(46) (defining ―[s]ibling relationship‖ as the biological or legal relationship between
persons who have a common biological or legal parent‖). As such, the February 3, 2010 order
is res judicata that Mother committed severe abuse against the twins‘ sibling or half-sibling.
See In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012) (holding that ―the
doctrine of res judicata [] prevent[s] a parent from re-litigating whether she committed
severe child abuse in a later termination of parental rights proceeding, when such a finding
had been made in a previous dependency and neglect action‖). Because a final order of
severe abuse against the twins‘ sibling or half-sibling is sufficient under Tennessee Code
Annotated Section 36-1-113(g)(4) to also find that severe abuse has been met as to them, the
trial court did not err in finding that the ground of severe abuse had been proven by clear and
convincing evidence in this case.
II.
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When at least one ground for termination of parental rights has been established, the
petitioner must then prove by clear and convincing evidence that termination of the parent‘s
rights is in the child‘s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). When a parent has been found to be unfit (upon establishment of ground(s) for
termination of parental rights), the interests of parent and child diverge. In re Audrey S., 182
S.W.3d at 877. The focus shifts to the child‘s best interest. Id. Because not all parental
conduct is irredeemable, Tennessee‘s termination of parental rights statutes recognize the
possibility that terminating an unfit parent‘s parental rights is not always in the child‘s best
interest. Id. However, when the interests of the parent and the child conflict, courts are to
resolve the conflict in favor of the rights and best interest of the child. Tenn. Code Ann. §
36-1-101(d). Further, ―[t]he child‘s best interest must be viewed from the child‘s, rather than
the parent‘s, perspective.‖ Moody, 171 S.W.3d at 194.
The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:
(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 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;
(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 or
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
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(8) Whether the parent‘s or guardian‘s mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i). This Court has noted that, ―this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent‘s rights is in the best
interest of a child.‖ In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending
on the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child‘s best interests does not call for a rote
examination of each of Tenn. Code Ann. § 36-1-113(i)‘s nine
factors and then a determination of whether the sum of the
factors tips in favor of or against the parent. The relevancy and
weight to be given each factor depends on the unique facts of
each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one
factor may very well dictate the outcome of the analysis.
In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
Here, the trial court found that Mother has failed to make an ―adjustment of
circumstances‖ or a ―lasting adjustment‖ that would make it safe for the children to return to
her care. See Tenn. Code Ann. § 36-1-113(i)(1),(2). The evidence does not preponderate
against this finding. Specifically, while Mother maintained that she has been sober since
completing drug rehabilitation, the trial court specifically found that Mother was not credible.
Furthermore, Mother failed two hair follicle drug tests in February 2015 and June 2015.
Mother testified that she had ―theories‖ as to why the tests resulted in positive findings
despite her testimony that she was not using drugs, but she declined to explain these theories
to the trial court. Mother‘s failure to maintain her sobriety is heightened by her testimony that
she has abused drugs on and off since she was a teenager and that her older child was
likewise removed from her custody due to drug use. Under these circumstances, the trial
court did not err in finding that Mother had not made a lasting adjustment in circumstances.
The trial court also found that the children have no meaningful relationship with
Mother, despite the fact that she has maintained regular visitation with the twins. See Tenn.
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Code Ann. § 36-1-113(i)(3),(4). The trial court further found that changing caretakers would
have a detrimental effect on the twins. See Tenn. Code Ann. § 36-1-113(i)(5). Again, we
agree. Here, Mother has attended supervised visitation with the children as allowed by DCS.
The children, however, were removed from Mother‘s care almost immediately after their
births. A DCS worker testified that during the visits Mother often requires multiple breaks
and assistance in taking care of the children. Once, because one child was ―fussy,‖ the child
was ―left behind‖ by Mother with another adult while Mother attended only to the other
child. The children now reside with a foster family who hopes to adopt the children and who
consider the children part of their family. Nothing in the record indicates that the foster
family is unable to care for both children. A DCS worker testified that the twins have a
―small bond‖ with Mother, but that changing caretakers would have a detrimental effect on
the children.
Based on the totality of the circumstances, we cannot conclude that the trial court
erred in finding that termination of Mother‘s parental rights was in the children‘s best
interests. Here, the children were removed from Mother at such a young age that no
meaningful parent-child relationship has formed. Additionally, DCS presented ample
evidence that Mother‘s attempts to remain drug-free have not yet resulted in a lasting change.
Finally, the evidence shows that the twins are in a healthy and loving home that presents an
excellent hope for stability. As such, the trial court correctly determined that termination of
Mother‘s parental rights was appropriate.
III.
Finally, Mother asserts that the juvenile court proceedings were fatally flawed because
they were presided over by a substitute judge that was not properly appointed pursuant to
Tennessee Code Annotated Section 17-2-118. In Mother‘s brief, however, Mother states that:
Considering the authority [on this issue previously cited in
Mother‘s brief], [Mother] has been unable to find one case in
which a defective appointment of the ―Special Judge‖ in the
Juvenile Court of Shelby County has been found to be reversible
error. In fact, it appears that every time it is challenged, th[e]
Court [of Appeals] finds that the substitute Judge is acting as a
de[]facto Judge. In light of the foregoing, it is the position of
[Mother] that Special Judge Walker was acting as a de[]facto
Judge.
The Tennessee Supreme Court defined a de facto judge in Ferrell v. Cigna Property
& Casualty Insurance Co., 33 S.W.3d 731 (Tenn. 2000), stating:
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A judge de facto is one acting with color of right and who is
regarded as, and has the reputation of, exercising the judicial
function he assumes. . . . A judge who actively assumes the
duties of his office after he has been appointed by the governor
of the state, or has been elected by the people, is at least a de
facto judge even though facts aliunde might disclose
irregularities in the appointment or the election. A judge de facto
is a judge de jure as to all parties except the state, and his
official acts are binding on third persons and the public.
Ferrell, 33 S.W.3d at 739 (quoting State ex rel. Newsom v. Biggers, 911 S.W.2d 715, 718
(Tenn.1995) (internal citations and quotation marks omitted)). The Ferrell Court further
held that because of the special judge‘s de facto power, any irregularity in his appointment
did not constitute reversible error. Ferrell, 33 S.W.3d at 739. Accordingly, it appears that
Mother concedes that, although Special Judge Walker was purportedly not properly
appointed, he had de facto power to preside over this case and his appointment is not
reversible error. As such, any argument that Special Judge Walker‘s appointment does in fact
constitute reversible error is waived.
Conclusion
The judgment of the Shelby County Juvenile Court is reversed in part and affirmed in
part. The termination of Mother‘s parental rights is affirmed and this cause is remanded to
the trial court for all further proceedings as are necessary and consistent with this Opinion.
Costs of this appeal are taxed to Appellant, Melissa G.A., for which execution may issue if
necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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