In Re Anari E. ( 2021 )

05/07/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 1, 2021
IN RE ANARI E., ET AL.
Appeal from the Juvenile Court for Hickman County
No. 20-JV-12 Amy Cook Puckett, Judge
No. M2020-01051-COA-R3-PT
This appeal concerns the termination of a father’s parental rights to his two minor children.
Thomas Miller (“Petitioner”), guardian ad litem, filed a petition in the Juvenile Court for
Hickman County (“the Juvenile Court”) seeking to terminate the parental rights of Desia
E. (“Father”) to Anari E. and Chrifayni O. (“the Children,” collectively). After a trial, the
Juvenile Court entered an order terminating Father’s parental rights on six grounds and
finding that termination of Father’s parental rights is in the Children’s best interest, all by
clear and convincing evidence. Father appeals, arguing Petitioner failed to meet his burden
as to any of the grounds and as to best interest. We affirm the judgment of the Juvenile
Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Kelli Barr Summers, Brentwood, Tennessee, for the appellant, Desia E.
Thomas H. Miller, Franklin, Tennessee, appellee-guardian ad litem.
Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
In May 2012, Anari was born out of wedlock to Christian O. (“Mother”) and Father.
In January 2018, Chrifayni was born to Mother. No father was listed on Chrifayni’s birth
certificate, but Father held himself out as Chrifayni’s father. On April 30, 2019, Mother
died of a drug overdose. Father was incarcerated at the time of Mother’s death. Before
Father’s incarceration, he lived with Mother and the Children. The Children thereafter
entered the custody of the Tennessee Department of Children’s Services (“DCS”). The
Children were placed in the care of Cathy O. (“Great Aunt”), their maternal great aunt.
In May 2019, Petitioner, the Children’s guardian ad litem, filed a petition in the
Juvenile Court seeking to adjudicate the Children dependent and neglected. In July 2019,
Petitioner filed an amended petition. Petitioner alleged, among other things, that “Anari
will point out ‘bad people’ who used to ‘do ice’ or other drugs at her home.” Petitioner
alleged also that Anari said that “Daddy would hit ‘Fayni’ in the face when she wouldn’t
stop crying and that once he ‘busted her lip.’” A permanency plan was crafted for Father,
with his participation, to include goals of return to parent and exit custody with relative.
In July 2019, the permanency plan was ratified. The Juvenile Court found the plan’s
requirements reasonable and related to remedying the conditions necessitating foster care
and in the best interest of the Children.
In August 2019, the Juvenile Court heard, and granted, an emergency motion to
suspend Father’s visitation with the Children. The Juvenile Court found that on an
attempted visit in July, Anari was “inconsolable” at the sight of Father. The Juvenile Court
stated: “It is not necessary for the Court to decide today the reason for Anari’s conduct. It
is enough to find that this grieving child is clearly not ready to have visitation with her
father.” In November 2019, the Juvenile Court heard Petitioner’s amended dependency
and neglect petition. Father did not appear for the hearing. Afterward, the Juvenile Court
entered an order finding the Children dependent and neglected. The Juvenile Court found,
in part:
6. Today [Great Aunt] testified that Anari has told her that she saw her father
drag her mother down the hall by her hair, witnessed physical altercations
between her parents, and saw him push her mother out of the car and shove
her head into the side of a car window.
7. Anari told [DCS worker] Ms. Thomas that her father had raped her mother
and other women. Anari correctly told her that rape was sex without consent.
8. Anari and Chrifayni have been exposed to drug use by both parents.
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9. Anari’s vocabulary is consistent with a child who has been exposed to
drug use and sales; e.g., she can identify what different kinds of drugs are.
She knows what drugs and drug paraphernalia are.
10. [Father] abused Chrifayni when he struck her in the face because she
would not stop crying.
11. Ms. Thomas testified that Anari’s statements regarding domestic violence
and witnessing drug use and sales were consistent.
***
13. [Great Aunt] testified that Anari knows too much and has experienced
too much for her age. The Cour[t] agrees. Some of her innocence has been
lost due to her exposure to the drug culture, domestic violence and her
knowledge of rape.
14. The fact that Anari’s cumulative life experience has resulted in a
diagnosis of PTSD is relevant to both adjudication and disposition.
In a separate dispositional order, the Juvenile Court found that Great Aunt was
providing proper care for the Children and that the Children’s needs were being met by
her. The Children were to remain in DCS custody, and Father was barred from contacting
them. Before he could petition to change the order, Father was to provide proof of
completion of domestic violence courses, proof of completion of alcohol and drug
rehabilitation, and submit to drug screens. A revised permanency plan was ratified in
January 2020. This time, Father did not participate in the plan’s development. This revised
plan added two additional requirements: (1) complete a full psychological assessment and
follow recommendations and (2) submit to a parenting assessment and follow
recommendations.
On January 21, 2020, Petitioner filed his petition seeking to terminate Father’s
parental rights to the Children. After the petition was filed, Father went to jail again. On
February 28, 2020, Petitioner filed an amended petition to terminate parental rights, this
time to include abandonment grounds concerning an incarcerated parent such as wanton
disregard. In June 2020, Petitioner filed a second amended petition, this time to correct an
error concerning his consultation of the putative father registry, for which the Juvenile
Court granted leave. In addition, Father filed an answer to Petitioner’s February amended
petition.
In June 2020, this matter was tried. Father did not appear. Alexus Thomas
(“Thomas”), DCS family services worker on the Children’s case since May 1, 2019,
testified first. When the Children first entered state custody, they were placed with a cousin
through an expedited placement. This placement did not last long as the cousin and her
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mother were unwilling to comply with all of the necessary requirements. On May 15,
2019, DCS placed the Children with Great Aunt, who previously sought custody of them.
Father was incarcerated at this time. Thomas was able to reach Father in June 2019 to
inform him that she was assigned the Children’s case and invite him to a permanency plan
meeting. Father inquired as to how the Children were doing at that time. Father, by now
out of jail, participated in the development of the permanency plan. Father expressed a
desire to have the Children placed with him. Under the permanency plan, Father was to
submit to an alcohol and drug assessment and follow the recommendations; complete a
mental health assessment and follow recommendations; obtain a legal source of income
and provide proof of it; have a safe and stable home and provide proof of it; and establish
paternity of Chrifayni and participate in therapeutic supervised visitation. As it happened,
Father never completed an alcohol and drug assessment. DCS scheduled an assessment
for June, but Father was incarcerated for a three-week span and could not participate. DCS
then set up another drug and alcohol assessment that could be completed in August or
September. Father, however, did not complete an assessment in those months.
On January 29, 2020, Father went to jail and remained there through April 2020.
Upon Father’s release, Thomas contacted him about finally completing an alcohol and drug
assessment. Thomas testified that Father told her he used marijuana daily and was never
going to stop. Thomas stated that Father later said he would “handle it through his own
provider.” Asked if Father knew about the trial date, Thomas stated that Father had
confirmed the trial date with her and he knew when the trial was taking place. Thomas
testified that, two days before trial, Father reiterated to her that “he uses marijuana daily
and would use it until he died and he was not going to take the -- or complete the alcohol
and drug assessment.” In July 2019, Father refused to undergo an oral swab drug screen
and insisted on a urine screen instead. Father never acknowledged to Thomas that he used
any other drugs besides marijuana.
In October 2019, Father completed a mental health assessment. It was
recommended that Father complete therapy two to four times a month. Father had a follow-
up appointment but, as of April, he had no additional follow-up appointments. Asked why,
Thomas stated: “I asked him to follow up with Centerstone to see if he could schedule
through telehealth and to let me know if they were able to get appointments for him, and
he said he would.” Father never let Thomas know whether he followed up. Upon Father’s
first release from custody during this case, he was living with his mother. Father told
Thomas he wanted the Children to live at his mother’s residence. Father had inquired about
setting up a home walk-through in August 2019. However, Thomas could not reach Father
after August 14th as his phone was disconnected. When Father was released from jail in
April 2020, Thomas asked him if he would like to schedule a walk-through at his mother’s
home. At this point, Father stated his mother’s home was not appropriate. Thomas testified
that, as best she knew, Father lived on and off with his mother. The week before trial,
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Father told Thomas he had gotten approval for housing with Buffalo Valley. In the past
year, Thomas had offered to assist Father with housing. Father asked Thomas for housing
guides for Hickman County. In June or July last, Thomas offered Father options for
housing in surrounding counties because there were better options there for low income
people. Father replied that those options were unacceptable, and he was adamant about
living in Hickman County. Father had not shown Thomas a lease for his new housing, and
she had been unable to verify he had been accepted by Buffalo Valley.
Regarding what Father does for a living, Thomas testified that on two occasions
Father reported working for a painting company. In April 2020, Father provided Thomas
with a written note stating: “[Father] works here. He works 40 hours a week.” The note
said nothing about an hourly rate or how much Father makes. Father never told Thomas
he had another source of income, or that he had any disability that prevented him from
working a job. Thomas stated that Father never raised a work schedule as a reason why he
could not make a particular appointment or see the Children. Father also never mentioned
any expenses he had.
Continuing her testimony, Thomas stated that Father never paid any child support.
Father had offered to buy the Children clothes and asked for their sizes. However, Father
never followed up. In April, Father gave Anari a cake and a doll for her birthday; that was
the extent of the support. Thomas and Father had a difficult state of relations over the case.
Father would tell Thomas she needed to do her job and get his kids back. At one point,
Father even sued Thomas. However, Thomas stated their relations later improved.
Thomas testified further that Father never established paternity of Chrifayni. In November
2019, a new permanency plan was developed. Father did not participate in the plan’s
development even though he was informed about it. New goals under this plan were
“return to parent” and “adoption,” with “exit to relative” replaced. Thomas explained:
“Due to the little to no progress towards the goal of return to parent and the girls doing so
well in that home, we then decided that adoption would be better to provide them a more
stable form of permanency.”
Thomas was asked if there were any areas in which Father completed any action
steps on the permanency plan. Thomas stated that Father signed a release reflecting he had
a mental health assessment. Father also purportedly found housing as of the week before,
although he had not shown Thomas a lease agreement or arranged for a walk-through.
Father did not describe the residence to Thomas in any detail. Thomas testified that, to her
knowledge, there was no four-month stretch during the custodial period in which Father
showed residential stability. Thomas testified that, despite her efforts, Father never met
her halfway in the case. Criminal records entered as an exhibit reflected that in October
2019, Father tested positive for amphetamines, methamphetamines, and THC. Thomas
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stated that in her view, terminating Father’s parental rights would be in the Children’s best
interest.
On cross-examination, Thomas acknowledged that records from 2015 of earlier
DCS involvement with the family showed that Anari seemed to have a good bond with
Father. Thomas testified also that Great Aunt had to get a waiver for placement because
she had a criminal history, although Thomas did not know what the charges were or how
old they were. With respect to visitation, Thomas was asked why Anari could determine
whether Father could visit her. Thomas stated this was because “[Anari] was
uncomfortable with visiting and said that she did not want to.” Regarding the incident
wherein Father refused an oral swab drug screen in favor of a urine screen, Thomas stated
that the results of that screen were negative. On the subject of Anari’s health, Thomas
stated that Anari saw a therapist twice a month. Asked whether Father’s bid for housing
was a legitimate effort to meet the goal of suitable housing under the permanency plan
whether he had obtained it yet or not, Thomas agreed that Father was seeking housing.
As cross-examination carried forward, Thomas testified that Anari told her in March
2020 that she wanted to go to a father/daughter dance but Great Aunt said no. Anari said
that Great Aunt “doesn’t let her do anything.” Thomas stated that, from August 2019,
Father could only visit Anari if the therapist recommended it was appropriate. With regard
to Chrifayni, Thomas stated that Father’s visitation with her was halted after an incident in
which Anari slapped his hand as he reached in to get Chrifayni out of her car seat. Thomas
acknowledged that she never affirmatively followed up on Father’s initial suggestion that
the Children live with his mother. Thomas never personally called Father’s mother and
asked her about a walk-through. Thomas then was asked about some phone calls between
Father and Anari from earlier in the custodial period. Thomas testified: “[Father] reported
to me that when he tried to speak to Anari, that she said she didn’t want to talk to him
because he was the reason that her mother was dead and he got her hooked on drugs.”
Thomas stated that Anari has PTSD. Thomas testified further that Anari was sitting in her
Mother’s lap at the time Mother died of a drug overdose. On the issue of responsibility for
poor communications, Thomas acknowledged that Father was not supposed to call her from
August 13th through November 7th of the past year. Thomas stated that she had verified
that Father was on a waiting list for Buffalo Valley and had enrolled with Centerstone.
On redirect, Thomas was asked about the incident the previous year that led to the
suspension of Father’s visitation. Thomas stated that when Anari saw Father: “She became
upset. She started to cry and scream. As he came closer to the car, she would scream, ‘Get
away.’”
Next to testify was Dana Nicholson (“Nicholson”), Hickman County Court Clerk.
Nicholson stated that a capias was issued for Father on December 3, 2019 because Father
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failed to appear in the General Sessions Court for Hickman County on December 2, 2019
to answer to a number of charges including habitual motor vehicle offender and domestic
violence. The charges, which stemmed from 2017 to 2019, were still pending. According
to Nicholson, when the capias is executed, Father will be incarcerated until he appears in
court, with bond set at $12,000.
The final witness to testify was Great Aunt. Great Aunt testified that Mother was
her brother’s daughter, thus the Children were her great nieces. Great Aunt testified that
Anari was, and remains, “an emotional wreck.” Regarding Anari’s emotional state, Great
Aunt stated: “She has good days, she has bad days.” Great Aunt testified that Anari
nevertheless had shown improvement overall. Great Aunt stated that Anari has a constant
fear of being made to go back with Father. When asked if she had ever said or done
anything to turn Anari against Father, Great Aunt testified: “Never.” Great Aunt testified
that Anari does not sleep well, and sees a counselor. Anari takes medication to help her
sleep. Great Aunt testified that she had a child by a cousin of Father’s. Regarding her
relations with Father generally, Great Aunt testified: “[F]rom my … experiences knowing
his relationship with my niece, it’s not been good. I don’t approve of things he’s done.
Her, either. But the domestic violence was the worst.” Great Aunt testified that Father
never inquired as to how the Children were doing. As for child support, Great Aunt
testified that the only things Father ever provided were a birthday cake and gift for Anari
on her most recent birthday. Great Aunt testified that Anari was smart but began having
behavioral problems towards the end of the year. Great Aunt stated that Anari wanted to
be near her, especially at night. Asked what the likely effect would be were Anari required
to live somewhere else, Great Aunt stated: “Devastating, traumatic.” Great Aunt testified
that she was willing to adopt the Children. Great Aunt stated: “I have had five of Chrissy’s
six children at some point in their lives. This isn’t the first time.” Asked on cross-
examination if it were fair to say she was not a “fan” of Father, Great Aunt testified: “I
wouldn’t hang out with him.”
In July 2020, the Juvenile Court entered its final judgment. The Juvenile Court
found that Petitioner had proven against Father by clear and convincing evidence the
following grounds: (1) abandonment by failure to support; (2) abandonment by wanton
disregard; (3) abandonment by failure to provide a suitable home; (4) substantial
noncompliance with the permanency plans; (5) persistent conditions; and, (6) failure to
manifest an ability and willingness to assume custody. The Juvenile Court found further
by clear and convincing evidence that termination of Father’s parental rights is in the
Children’s best interest. In its detailed final judgment, the Juvenile Court found, in part:
[Failure to support]
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[Father] has been incarcerated during all or part of the four (4) months
immediately preceding the filing of the guardian ad litem’s amended
termination of parental rights petition on February 28, 2020. Certified copies
of convictions from Davidson County reflect that on July 12, 2019, [Father]
was convicted of driving on revoked license second offense and was
sentenced to serve eleven months and 29 days in Davidson County. That
sentence was suspended to supervised probation. On February 5, 2020, his
Davidson County probation was revoked and that sentence was placed into
effect. On April 1, 2020, [Father’s] motion to suspend sentence was granted,
and he was released to probation through Davidson County.
Upon finding that [Father] was incarcerated during all or part of the
four months immediately preceding the guardian ad litem’s amended
petition, the statute also requires the court to consider whether Father has
failed to visit or has failed to make reasonable payments toward the support
of the children. Father has not visited with the children since July of 2019.
Until recommended by Anari’s therapist, visitation between the
children and [Father] was suspended by the Court. [Father], who has been
afforded four court-appointed attorneys since June of 2019, has not filed a
motion with the Court to resume visitation. In fact, [Father] did not appear
at the dependency and neglect adjudication and dispositional hearing on
November 7, 2019, and he did not appear at the termination of parental rights
trial on June 4, 2020. Still, the Court does not find willfulness on the part of
[Father] for not visiting with the children given that a court order requires the
recommendation of Anari’s therapist to resume visitation.
The statute further requires the Court to consider whether Father has
failed to make reasonable payments toward the support of the children.
[Father] clearly and convincingly has not supported his children. Other than
a birthday cake and gift sent to Anari for her birthday in May of 2020,
[Father] has provided no financial support to the children while they have
been in foster care. He has not provided in-kind support either such as
clothes, school supplies, diapers, food, etc. He did not appear at trial to offer
an affirmative defense.
Additionally, during the respective time frames that [Father] has not
been incarcerated while the children have been in foster care, he has been
buying drugs. Ms. Thomas testified that [Father] told her that he will use
marijuana until he dies. The Court finds by clear and convincing evidence
that [Father’s] incarceration during the relevant statutory period and his
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failure to make reasonable payments toward the support of his children
constitute abandonment by clear and convincing evidence.
[Wanton disregard]
Another statutory ground for termination of parental rights is
abandonment by the parent pursuant to Tenn. Code. Ann. § 36-1-102(g)(1),
Tenn. Code Ann. § 36-1-102(1)(A)(iv). The Court finds by clear and
convincing evidence that Respondent [Father] has engaged in conduct that
exhibits a wanton disregard for the children’s welfare. While the children
have been in foster care, [Father] has been incarcerated multiple times and
has pending charges. Mr. Miller filed his petition on February 28, 2020, at
that time [Father] had been incarcerated in Davidson County. He was
released from there in April of 2020. He has an outstanding arrest warrant
in Hickman County.
When the guardian ad litem filed his dependency and neglect petition
on May 7, 2019, [Father] was incarcerated in Davidson County for contempt
for failure to pay child support. Ms. Dana Nicholson, Hickman County
Circuit Clerk, testified that a capias was issued for [Father’s] arrest on
December 3, 2019, in Hickman County. She stated that the outstanding
capias resulted from [Father’s] failure to appear in Court on December 2,
2019, for the following charges: driving on revoked driver’s license, driving
after declared Habitual Motor Vehicle Offender, violation of bond
conditions, traffic citations, domestic violence, and violation of order of
protection. Ms. Nicholson explained that all charges are pending in Hickman
County.
Respondent [Father] has engaged in conduct that exhibits a wanton
disregard for the children’s welfare by engaging in ongoing criminal acts.
While incarceration alone is insufficient for the Court to find this ground,
incarceration is a triggering mechanism that allows the Court to look into
Father’s past conduct. In re Audrey S. 182 S.W.3d 838 (Tenn. Ct. App.
2005). In re Audrey S. provides examples of conduct that demonstrate
wanton disregard: probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or
supervision for a child (182 S.W.3d 838 Tenn. Ct. App. 2005).
Certified copies reflect criminal convictions of Respondent [Father]
in Rutherford County, Tennessee. On January 9, 2012, [Father] pled guilty
to DUI and Contraband in a Penal Facility. For the DUI, he received a
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sentence of eleven months and 29 days to be served on probation; for
Contraband in a Penal Facility, he received a sentence of three years
concurrent with the DUI. He was also sentenced to 118 days, time served.
For Schedule II Drugs: Cocaine/Meth, [Father] received three years
consecutive to Contraband in a Penal Facility, for a total of six years
probation. Certified copies of a June 23, 2017, Rutherford County Violation
of Probation/Supervision Order reflect that [Father] served thirty-eight days
for a probation violation.
Ms. Alexus Thomas testified that when she offered [Father] help with
completing an alcohol and drug assessment, he declined help from DCS and
informed her that he would use marijuana until he dies. Ms. Thomas also
testified that [Father] has not financially supported the children while they
have been in foster care.
The examples of wanton disregard described in In re Audrey are
comparable to [Father’s] behavior, and this Court findings by clear and
convincing evidence abandonment by wanton disregard for the welfare of
the children. [Father’s] poor judgment and bad acts demonstrate willful
abandonment pursuant to Tennessee Code Annotated by clear and
convincing evidence.
[Failure to provide a suitable home]
Pursuant to Tenn. Code Annotated §§ 36-1-113(g)(1) and 36-1-
102(1)(A)(ii), the children were removed from [Father’s] home or his
physical or legal custody by a Court order after a petition was filed alleging
that the children were dependent or neglected children, and the children were
placed in DCS custody; the Court found that the Department of Children’s
Services made reasonable efforts to prevent removal of the children or that
the circumstances of the children’s situation prevented reasonable efforts
from being made prior to the children’s removal; and for a period of four (4)
months following the physical removal, the Department made reasonable
efforts to assist [Father] to establish a suitable home for the children, but
[Father] has not made reciprocal reasonable efforts to provide a suitable
home and has demonstrated a lack of concern for the children to such a
degree that it appears unlikely that he will be able to provide a suitable home
for the children at an early date. [Father] was aware that the children were
in the custody of the DCS, and the Department’s efforts to assist [Father] in
establishing a suitable home for the children equaled or exceeded [Father’s]
efforts toward that same goal.
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On July 16, 2019; November 7, 2019; January 21, 2020; and on April
14, 2020, the Juvenile Court found that DCS has been making reasonable
efforts towards remedying the conditions that necessitate foster care. Ms.
Alexus Thomas, DCS, has served as the Department’s Family Service’s
Worker (FSW) throughout the entire period that the children have been in
foster care. Ms. Thomas testified that she offered appropriate services to help
him get his children back but that [Father] did not meet her half way.
***
Ms. Thomas testified that she verified that Father is on a waiting list
for housing through Buffalo Valley. She explained this housing program is
not part of the Buffalo Valley drug and alcohol rehabilitation program. Ms.
Thomas testified that she does not know when [Father] will obtain housing
but that [Father] told her he would have a home within a week. Ms. Thomas
testified that she has not seen a lease agreement or a residence of [Father].
Despite having notice of the trial, [Father] did not appear in Court to offer
proof of suitable housing.
In considering whether Father demonstrated a lack of concern for the
children such that it was unlikely he would be able to provide a suitable home
at an early date, the Court “may consider the parents’ more recent behavior.”
In re Billy T.W., No. E2016-02298-COA-R3-PT, 2017 WL 4317656, at [*]9
(Tenn. Ct. App. Sept. 26, 2017). [Father] admitted to using marijuana daily
to Ms. Thomas as recently as June 2, 2020. She testified that he stated to her
that he would never stop using marijuana. She stated that she set up
authorization for an assessment beginning in June of 2019. She stated that
she set up the assessment again in August 2019, but that [Father] never
completed it. She stated that he agreed to call back to schedule but that he
did not follow through.
Ms. Thomas testified that [Father] has not provided proof of
completion of an alcohol and drug assessment. Ms. Thomas testified that
[Father] has not provided proof of completion. In the context of this statute,
a “suitable home” means “‘more than a proper physical living location’” it
must also “be free of drugs and domestic violence.” In re Billy T.W. at *8
(quoting In re Hannah H., No. E2013-0123-01211-COA-R3-PT, 2014 WL
2587497, [at] *9 (Tenn. Ct. App. June 10, 2014)). Father has not made
reciprocal reasonable efforts to provide a suitable home, and the Court finds
by clear and convincing evidence that [Father] has abandoned the children
pursuant to this ground.
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***
[Substantial noncompliance with the permanency plans]
The Respondent has not substantially complied with the
responsibilities of the permanency plans. Father did not appear to testify or
offer proof of compliance with the permanency plan. Even if father acquires
housing soon, he would need additional time to comply with the permanency
plans that have been developed since June 2019. Father needs to demonstrate
stable housing, employment and sobriety. He needs to provide proof of
completing a parenting assessment and compliance with mental health
recommendations. Furthermore, he would need to restart visitation with the
children. The Court did not hear proof or testimony from anyone to verify
Father’s housing plans. Additionally, [Father] needs to resolve pending
criminal charges in Hickman County.
***
[Persistent conditions]
[Father] has missed multiple opportunities to be heard in court
proceedings and to engage in social services offered by DCS. The entire time
that the children have been in DCS custody, Father has not had any periods
of residential stability that Ms. Thomas could verify. Ms. Thomas testified
that [Father] lived with his mother; however, [Father] did not provide consent
from his mother for Ms. Thomas to do a homestudy report. Ms. Thomas
testified that [Father] later told her that his mother’s home was not
appropriate. Ms. Thomas testified of periods of weeks and months when she
did not know where he was living. She stated that she assumed where he
lived but did not know with certainty. Ms. Thomas testified that during the
periods when [Father] was not incarcerated, he did not work services with
DCS to become available to parent the children or provide financial support
to the children.
The persistence of conditions ground for termination of parental rights
applies to conditions at the time of the children’s removal from their parent’s
custody and to conditions that have developed since their removal. [Father]
has been incarcerated for a probation violation since the children came into
foster care. He has not used the opportunity between incarcerations to get
treatment, despite having the resources of DCS at his disposal.
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The conditions persist that prevent the children’s safe return to the
care of the father because he does [not] have a stable residence. Ms. Thomas
stated that Father told her that he anticipates having housing within a week,
though she has not seen a lease agreement. Upon [Father’s] acquiring
housing, he will need several months to demonstrate sobriety and stability.
Father has not appeared to testify as to having a job. Ms. Thomas
stated that he had provided her with a note from an employer stating that
[Father] works forty hours. She stated that she does not know how much he
earns. This Court did not hear any testimony from [Father’s] support
network or potential employer.
Continuing the parent/child relationship diminishes the children’s
opportunities of early integration into a stable and permanent home. The
existence of the legal bond between the children and their father prevents
them from adoption. Focusing on the results of [Father’s] efforts, he has not
demonstrated his ability to provide a safe environment for his children.
***
While the father’s incarcerations in 2019 led to the children’s
removal, the children’s prolonged stay in foster care is the result of decisions
made by father after his release from jail to resume criminal activity. There
is little likelihood that these conditions will be remedied at an early date so
that these children can be returned to their father’s care soon. When Father
acquires housing, he would need considerable time to demonstrate sobriety
and stability.
***
[Failure to manifest an ability and willingness to assume custody]
As of the date of the filing of the TPR petition or the hearing, [Father]
had not manifested an ability and willingness to assume legal and physical
custody of his children. Father did not appear in court to express his desire
to personally assume responsibility of the children. Father continues to put
off addressing substance abuse issues. He has been re-arrested and
incarcerated during the time the children have been in foster care. At the
time he began serving a probation violation in Davidson County in February
of 2020, the children had been in foster care for approximately nine months.
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It is unsafe to return the children to [Father’s] care until he has
demonstrated stability and sobriety. Father’s refusal to address substance
abuse issues and to support his children reveals neither a willingness nor
ability to assume legal and physical custody of or financial responsibility of
them. DCS FSW Alexus Thomas testified of concerns with Father’s
anticipated plans for housing: she had not seen a lease or home yet. Even if
father’s anticipated home were to be approved, [Father] would need to
establish sober and stable living for a meaningful period. He would need to
agree to take drug screens and pass drug screens upon request by DCS.
[Father] would also need to provide support to and bond with his children.
***
[Best interest]
Since May of 2019, father’s residential instability, drug abuse,
criminal activity, and repeated incarceration have led to a prolonged absence
from the children. Father did not appear at the termination proceeding to
acknowledge a desire to regain custody. Even if he does desire to regain
custody, he would require time to demonstrate that he has made adjustments
for sober and stable living. Father’s unstable living situation is not in the
children’s best interests. These children deserve permanency….
***
Father was unavailable to parent the children when they came into
custody due to incarceration. During the time the children have been living
in foster care, he has been incarcerated again and has pending charges. The
children need a safe, stable home. Thirteen months is more than enough time
for Father to have demonstrated a meaningful period of stability….
***
Though Father has expressed an interest in the children’s well being
to Ms. Thomas, visitation with the children has been delayed since July of
2019. This delay is partly due to a recommendation from Anari’s therapist
and partly due to father’s actions. The Final Order of Adjudication and
Disposition entered on November 12, 2019 requires that [Father] provide
proof of completion of domestic violence courses and alcohol and drug
rehabilitation and submit to drug screens. Father has not provided proof of
completion of domestic violence classes and alcohol and drug treatment.
Father did not appear at that hearing, and Father has not testified at the
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termination trial of a desire to visit with the children and to re-establish a
bond with the children….
***
The Court has not heard proof that a meaningful relationship exists
between Father and the children. Father has not made it possible for the
children to go home with him. Father did not appear at trial to testify about
his relationship with his children…
***
The children have been placed with a relative caregiver for over a
year. Ms. Thomas testified that the children have lived with [Great Aunt]
since May of 2019. Ms. Thomas testified that her home is suitable for the
children and that termination of [Father’s] parental rights is in the children’s
best interests…
It is not in the children’s best interests to delay permanency for
another six months to see if things are going to [be] different with Father.
They are living the life that the legislature opposes: foster care beyond that
which is reasonably necessary….
***
This Court has previously found that the children were dependent and
neglected due to Father’s incarceration and their exposure to domestic
violence by their caregivers and their exposure to drug use in their home by
the parents and other persons. The Court found that Chrifayni is an abused
child due to injuries sustained and risk of injuries sustained when [Father]
struck her on the face causing her lip to bleed….
***
Father has not presented a suitable home for the children. Ms.
Thomas has offered help with drug and alcohol assessments. Father has
declined, and he told DCS FSW, Alexus Thomas, that he will never stop
using marijuana. Father has refused drug screens from DCS. Prior to the
children’s entering foster care, the parents had [been] using drugs in their
home. [Father] has had repeated incarcerations while the children have been
in foster care, and he has pending criminal charges for which he has failed to
appear in court….
-15-
***
The Court did not hear sufficient proof concerning Father’s mental
and/or emotional status…
***
Father has not financially supported the children….
***
All factors except number eight support termination of parental rights.
The proof clearly and convincingly supports a finding that termination of
Father’s parental rights is in the best interest of [the Children].
Father timely appealed to this Court.
Discussion
Although not stated exactly as such, Father raises the following issues on appeal: 1)
whether the Juvenile Court erred in finding the ground of failure to support; 2) whether the
Juvenile Court erred in finding the ground of wanton disregard; 3) whether the Juvenile
Court erred in finding the ground of failure to provide a suitable home; 4) whether the
Juvenile Court erred in finding the ground of persistent conditions; 5) whether the Juvenile
Court erred in finding the ground of substantial noncompliance with the permanency plan;
6) whether the Juvenile Court erred in finding the ground of failure to manifest an ability
and willingness to assume custody; and, 7) whether the Juvenile Court erred in finding that
termination of Father’s parental rights is in the Children’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
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.1 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
1
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
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v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388.
Termination of parental rights has the legal effect of reducing the parent to
the role of a complete stranger and of “severing forever all legal rights and
obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-
113(l)(1); see also Santosky, 455 U.S. at 759, 102 S.Ct. 1388 (recognizing
that a decision terminating parental rights is “final and irrevocable”). In light
of the interests and consequences at stake, parents are constitutionally
entitled to “fundamentally fair procedures” in termination proceedings.
Santosky, 455 U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). “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 at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than not.
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In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R.,
183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
Termination of parental or guardianship rights must be based
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) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds2 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is separate
from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
Although several factors relevant to the best interests analysis are statutorily
enumerated,3 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
2
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
3
Tenn. Code Ann. § 36-1-113(i).
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petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n. 15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate 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). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. 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 re Bernard T., 319 S.W.3d at 596; In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). 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.
In re Bernard T., 319 S.W.3d at 596-97. 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. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
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In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
We begin with the three abandonment grounds at issue. The ground of
abandonment is set forth in statute 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 nonexclusive, 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;
Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2020).
As to the specific types of abandonment found by the Juvenile Court in this case,
the Tennessee code defines them as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a parent
or parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
***
(ii)(a) The child has been removed from the home or the physical or legal
custody of a parent or parents or guardian or guardians by a court order at
any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and the child
was placed in the custody of the department or a licensed child-placing
agency;
(b) 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
circumstances of the child’s situation prevented reasonable efforts from
being made prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent or parents
or the guardian or guardians to establish a suitable home for the child, but
that the parent or parents or the guardian or guardians have not made
reciprocal reasonable efforts to provide a suitable home and have
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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 shall be found to be
reasonable if such efforts equal or 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;
***
(iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the parent
or guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and either
has failed to visit or has failed to support or has failed to make reasonable
payments toward the support of the child for four (4) consecutive months
immediately preceding such parent’s or guardian’s incarceration, or the
parent or guardian has engaged in conduct prior to incarceration that exhibits
a wanton disregard for the welfare of the child. If the four-month period
immediately preceding the institution of the action or the four-month period
immediately preceding such parent’s incarceration is interrupted by a period
or periods of incarceration, and there are not four (4) consecutive months
without incarceration immediately preceding either event, a four-month
period shall be created by aggregating the shorter periods of nonincarceration
beginning with the most recent period of nonincarceration prior to
commencement of the action and moving back in time. Periods of
incarceration of less than seven (7) days duration shall be counted as periods
of nonincarceration. Periods of incarceration not discovered by the petitioner
and concealed, denied, or forgotten by the parent shall also be counted as
periods of nonincarceration. A finding that the parent has abandoned the
child for a defined period in excess of four (4) months that would necessarily
include the four (4) months of nonincarceration immediately prior to the
institution of the action, but which does not precisely define the relevant four-
month period, shall be sufficient to establish abandonment;
***
(B) For purposes of this subdivision (1), “token support” means that the
support, under the circumstances of the individual case, is insignificant given
the parent’s means;
***
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(D) For purposes of this subdivision (1), “failed to support” or “failed to
make reasonable payments toward such child’s support” means the failure,
for a period of four (4) consecutive months, to provide monetary support or
the failure to provide more than token payments toward the support of the
child. That the parent had only the means or ability to make small payments
is not a defense to failure to support if no payments were made during the
relevant four-month period;
***
(H) Every parent who is eighteen (18) years of age or older is presumed to
have knowledge of a parent’s legal obligation to support such parent’s child
or children; and
(I) For purposes of this subdivision (1), it shall be a defense to abandonment
for failure to visit or failure to support that a parent or guardian’s failure to
visit or support was not willful. The parent or guardian shall bear the burden
of proof that the failure to visit or support was not willful. Such defense must
be established by a preponderance of evidence. The absence of willfulness
is an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of
Civil Procedure;
Tenn. Code Ann. § 36-1-102 (West July 1, 2019 to March 5, 2020).
We first address whether the Juvenile Court erred in finding the ground of failure to
support. In his brief, Father asserts: “The [Juvenile] Court … uses the wrong four-month
period. It should not be calculated from the time of the filing of the first amended petition
but from the date of the filing of the original petition.” According to Father, the
abandonment grounds for an incarcerated parent do not apply here. Father cites to no
authority on this point. Petitioner argues, in response, that a 2018 amendment to Tenn.
Code Ann. § 36-1-102 expressly provides for the four-month window to be triggered by
the date of the filing of an amended petition. However, that 2018 amendment was to Tenn.
Code Ann. § 36-1-102(1)(A)(i), failure to support by non-incarcerated parents. Tenn. Code
Ann. § 36-1-102(1)(A)(iv), failure to support by incarcerated parents, was only amended
to expressly account for amended petitions by 2020 Pub.Acts, c. 525, § 1, eff. March 6,
2020, which was after both the original petition and amended petition were filed.
In In re Chase L., No. M2017-02362-COA-R3-PT, 2018 WL 3203109, at *9 (Tenn.
Ct. App. June 29, 2018), no appl. perm. appeal filed, a parent was incarcerated after the
filing of the first petition and DCS filed an amended petition to include the ground of
wanton disregard. On appeal, this Court held that where an amendment raises an entirely
new ground or grounds based upon events that occur after the filing of the original petition,
-22-
it is in fact a supplemental pleading governed by Tenn. R. Civ. P. 15.04, thus requiring
leave of court. Id. at *11.4 No such leave was obtained. Id. However, this Court found
nevertheless that the ground was tried by implied consent as the parent had the benefit of
DCS’s supplemental pleading and DCS’s announcement in opening statements at the
hearing that it intended to rely upon the ground of wanton disregard and still did not object.
Id. at *12. The facts of the instant case are quite similar. The original petition was filed
on January 21, 2020. Father went to jail on January 29, 2020. Petitioner filed his amended
petition based upon new factual allegations on February 28, 2020. DCS concedes, and the
record reflects, that Petitioner never obtained leave of court under Rule 15.04 for a
supplemental pleading. Father filed an answer to the amended petition. At the beginning
of trial in this matter, Petitioner stated that he intended to rely upon the incarcerated parent
ground, including wanton disregard, and Father did not object. Under these circumstances,
we find the additional grounds were tried by implied consent.
On failure to support, Father states that “[i]t is uncontroverted that the father was
indigent.” However, Father did not raise lack of willfulness as a defense to his failure to
support, either in his answer or at trial. In addition, Thomas testified that Father showed
her a note reflecting he worked 40 hours per week. Thomas testified that there was never
any indication Father was unable to work. Despite this, Father never rendered any
monetary support of any kind throughout the whole custodial period. Father’s only
examples of support were a birthday cake and a doll for Anari. These minimal gestures
constitute token support. We find, as did the Juvenile Court, that the ground of failure to
support was proven against Father by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of wanton
disregard. The Juvenile Court made findings relative to Father’s history of repeated
incarceration and drug abuse during the Children’s lives, and the evidence does not
preponderate against those findings. Father’s only argument on this ground is that his more
recent incarcerations were based on probation violations rather than “additional crimes.”
However, this Court has held repeatedly that “probation violations, repeated incarceration,
criminal behavior, substance abuse, and the failure to provide adequate support or
supervision for a child can, alone or in combination, constitute conduct that exhibits a
wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d 838, 867-68
(Tenn. Ct. App. 2005). Father’s repeated incarcerations, including on the basis of violation
of probation, combined with his defiant attitude on the issue of his drug abuse, together
4
Tenn. R. Civ. P. 15.04 provides: “Upon motion of a party the court may, upon reasonable notice and upon
such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or
occurrences or events which have happened since the date of the pleading sought to be supplemented.
Permission may be granted even though the original pleading is defective in its statement of a claim for
relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading,
it shall so order, specifying the time therefor.”
-23-
qualify as conduct showing wanton disregard for the Children’s welfare. We find, as did
the Juvenile Court, that the ground of wanton disregard was proven by clear and convincing
evidence.
Continuing our review of grounds, we next address whether the Juvenile Court erred
in finding the ground of failure to provide a suitable home. On this issue, Father argues
that DCS failed to engage in reasonable efforts to assist him in the four months immediately
following removal. Father states:
Petitioner has failed to establish by clear and convincing evidence that during
the period of April 30, 2019 to August 30, 2019 that DCS made reasonable
efforts to assist [Father] in obtaining housing other than to provide him with
a list of housing possibilities within Hickman County. It was based upon this
list that [Father] contacted Buffalo Valley and placed his name on the waiting
list for housing. If DCS, with their superior knowledge is unable to provide
parents with housing options that will materialize within the first 4 (four)
months of children being placed in foster care then it is impractical to believe
parents facing housing issues due to poverty would have any better luck.
The Juvenile Court’s findings relative to this issue addressed DCS’s efforts
throughout the custodial period but also specifically encompassed the four months
immediately following the Children’s removal. The evidence does not preponderate
against the Juvenile Court’s finding that DCS’s efforts were reasonable. Father’s efforts,
in contrast, were sporadic. When Thomas presented Father with housing options outside
of Hickman County, he rejected them as unacceptable. Father also failed to ever follow up
on a walk-through at his mother’s house. In addition, Father failed to complete a drug and
alcohol assessment, which bears directly on whether any housing he obtains would be
suitable for the Children. While Father told Thomas shortly before trial that he had been
accepted into housing at Buffalo Valley, this tardy development is insufficient to establish
that Father has provided a suitable home for the Children. The Juvenile Court correctly
stated that a suitable home is not just a good physical space. We find, as did the Juvenile
Court, that the ground of failure to provide a suitable home was proven by clear and
convincing evidence.
Moving from the abandonment grounds, we next address whether the Juvenile Court
erred in finding the ground of persistent conditions. This ground is set forth in statute as
follows:
(3)(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a court order
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entered at any stage of proceedings in which a petition has been filed in the
juvenile court alleging that a child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist, preventing the
child’s safe return to the care of the parent or guardian, or other conditions
exist that, in all reasonable probability, would cause the child to be subjected
to further abuse or neglect, preventing the child’s safe return to the care of
the parent or guardian;
(ii) 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 guardian in the
near future; and
(iii) 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;
(B) The six (6) months must accrue on or before the first date the termination
of parental rights petition is set to be heard;
Tenn. Code Ann. § 36-1-113(g)(3) (Supp. 2020).
There is no dispute that the Children were removed from Father’s custody for a
period longer than six months or that a petition for dependency and neglect was filed in the
Juvenile Court. Father argues, however, that “there was no evidence presented to satisfy
the requirement that the children would be subjected to further abuse or neglect if returned
to the father.” To revisit, the record reflects that Father has a drug problem. Father, in
refusing a drug and alcohol assessment, informed Thomas that he would not complete a
drug and alcohol assessment and that he would smoke marijuana until he died. We note
here that the record contains evidence that Father’s drug abuse went beyond marijuana, as
he tested positive in October 2019 for amphetamines and methamphetamine in addition to
THC. Father’s brazen refusal to cooperate when real concerns exist about the Children’s
exposure to drug abuse in his care reflects a flippancy and lack of seriousness for the
Children’s well-being on Father’s part. Beyond the issue of drugs, Father has never
demonstrated residential stability. Father has been in and out of jail. Father is subject to a
pending capias. Given Father’s lack of improvement, in all reasonable probability the
Children would be subjected to abuse or neglect were they to be returned to Father’s care,
as the conditions in Father’s life regrettably are unstable and centered on drugs. We find,
as did the Juvenile Court, that the ground of persistent conditions was proven by clear and
convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of
substantial noncompliance with the permanency plan. This ground is set forth in statute as
follows: “(2) There has been substantial noncompliance by the parent or guardian with the
statement of responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4[.]”
-25-
Tenn. Code Ann. § 36-1-113(g)(2) (Supp. 2020). Father asserts that he “completed several
tasks on the permanency plan including safe and stable housing, legal source of income,
and seeking mental health treatment with Centerstone.” Indeed, Father made certain efforts
to comply with the permanency plan. However, Father flatly refused a drug and alcohol
assessment, a significant failure given Father’s undisputed illegal drug use. Father never
maintained residential stability. Father never rendered any support to the Children. Father
never established paternity of Chrifayni. Father’s instances of compliance with his
responsibilities under the permanency plan were eclipsed by his major failures to comply
in other areas, most notably his staunch refusal to submit to a drug and alcohol assessment.
We find, as did the Juvenile Court, that the ground of substantial noncompliance with the
permanency plan was proven by clear and convincing evidence.
Concluding our review of grounds, we address whether the Juvenile Court erred in
finding the ground of failure to manifest an ability and willingness to assume custody. This
ground is set forth in statute as follows:
(14) A parent or guardian 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;
Tenn. Code Ann. § 36-1-113(g)(14) (Supp. 2020). With respect to this ground, our
Supreme Court has explained that “[i]f a person seeking to terminate parental rights proves
by clear and convincing proof that a parent or guardian has failed to manifest either ability
or willingness, then the first prong of the statute is satisfied.” In re Neveah M., 614 S.W.3d
659, 677 (Tenn. 2020) (emphasis in original). On this ground, Father makes the conclusory
argument that “[t]he testimony did not establish by clear and convincing evidence either
prong of the statute.” On this first prong of the ground, the Juvenile Court found that Father
manifested neither the ability nor the willingness to assume legal and physical custody of
the Children, even though a finding as to either would be sufficient. The evidence does
not preponderate against these findings. Father never obtained suitable or stable housing,
never addressed his drug issues, and never paid a dime in child support despite purporting
to work 40 hours per work and apparently having sufficient resources to use marijuana
daily. Father has been incarcerated repeatedly. Notably, Father never bothered to establish
paternity of Chrifayni. Taken as a whole, Father’s actions in this case have manifested
neither an ability or willingness on his part to assume custody of the Children, his
statements to the contrary notwithstanding. We find, as did the Juvenile Court, that Father
manifested neither the ability nor willingness to assume custody of the Children.
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The second prong of this ground concerns whether 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. The evidence reflects, as found by the Juvenile Court,
that it would be unsafe for the Children to return to Father’s care. Father has failed to
demonstrate sobriety or stability despite his record of drug abuse. On the contrary, Father
insisted unequivocally to Thomas that he would not complete a drug and alcohol
assessment and would never stop using marijuana. Under these circumstances, the risk to
the Children’s well-being is clear. If Father refuses even an assessment, there can be no
confidence that he can maintain sobriety in order to safely parent the Children. Given
Father’s unabashed drug use, as well as his continual failure to achieve stability, an
unacceptable risk of harm would inhere were the Children returned to Father’s care. The
evidence does not preponderate against the Juvenile Court’s findings relative to this issue.
We find, as did the Juvenile Court, that the ground of failure to manifest an ability and
willingness to assume custody was proven by clear and convincing evidence.
The final issue we address is whether the Juvenile Court erred in finding that
termination of Father’s parental rights is in the Children’s best interest. In a parental rights
termination case, Tennessee courts look to the following non-exclusive factors in rendering
a best interest determination:
(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;
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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) (Supp. 2020).
Father asserts that he “has established a safe and stable home, has fulltime
employment to meet the needs of the family, and [is] addressing his mental health needs.”
Father states further that DCS’s efforts to assist him were not reasonable. Regarding
Anari’s allegations against him of physical abuse toward her sister, Father contends that
these allegations are suspect and that Anari is in therapy in part to address behaviors such
as lying. Father argues also that he could not develop a relationship with the Children
because his visitations were suspended. With regard to his failure to pay child support,
Father states it was because “he has been trying to use his financial resources to better his
situation for the benefit of the children.” Father does not cite to the record for that assertion,
nor any of his assertions as to best interest.
We are mindful that Father’s visitations were suspended. The Juvenile Court
declined to find the ground of failure to visit in view of the restrictions on Father’s ability
to visit. However, Father was not helpless, either in helping create the conditions in which
visitation could resume or in improving conditions in his life generally. Father never
displayed residential stability, instead living on and off with his mother. Father has been
in jail a number of times, and had a pending capias as of trial. Despite purporting to work
a full-time job, Father has never paid any child support. These facts, as found by the
Juvenile Court, reveal that Father is unable and/or unwilling to parent the Children at this
time, or any time soon. In contrast, the evidence shows that the Children are getting on
well with Great Aunt, who intends to adopt the Children if given the chance. The record
reflects that a change in caregiver would be especially traumatic for Anari, who has
endured exceptional hardship including the tragic death of her mother which she witnessed.
As found by the Juvenile Court: “It is not in the children’s best interests to delay
permanency for another six months to see if things are going to [be] different with Father.
They are living the life that the legislature opposes: foster care beyond that which is
reasonably necessary.” In the final analysis, Father’s refusal to address his drug use is the
overarching obstacle to his resuming custody of the Children in any kind of healthy and
safe manner. Father told Thomas that “he uses marijuana daily and would use it until he
died and he was not going to take the -- or complete the alcohol and drug assessment.” In
essence, Father chose drugs over a chance to resume custody of the Children.
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The Juvenile Court made its detailed findings, quoted above, as to the Children’s
best interest. The Juvenile Court found that all statutory best interest factors, save for factor
(8), favored termination of Father’s parental rights to the Children. The evidence does not
preponderate against these findings. We find, as did the Juvenile Court, that termination
of Father’s parental rights is in the Children’s best interest.
Conclusion
The judgment of the Juvenile Court terminating Father’s parental rights is affirmed,
and this cause is remanded to the Juvenile Court for collection of the costs below. The
costs on appeal are assessed against the Appellant, Desia E., and his surety, if any.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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