In Re Da'Moni J. ( 2022 )

01/25/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 30, 2021 Session
IN RE DA’MONI J. ET AL.
Appeal from the Juvenile Court for Knox County
No. 186481 Timothy E. Irwin, Judge
___________________________________
No. E2021-00477-COA-R3-PT
___________________________________
This appeal arises from the termination of a mother’s parental rights to her minor children
upon the juvenile court’s finding the statutory grounds of abandonment by failure to
provide a suitable home, substantial noncompliance with the permanency plan, persistent
conditions, and failure to manifest an ability and willingness to assume custody of and
financial responsibility for the children. The juvenile court further found that termination
of the mother’s parental rights was in the children’s best interest. We vacate the statutory
ground of persistent conditions because we are unable to verify that this finding was the
independent judgment of the juvenile court. We affirm the remaining grounds for the
termination of the mother’s parental rights, as well as the juvenile court’s determination
that termination of the mother’s parental rights was in the children’s best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed as Modified; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.
Anna East Corcoran, Knoxville, Tennessee, for the appellant, Atiya L.
Herbert H. Slatery, III, Attorney General and Reporter, and Kathryn A. Baker, Senior
Assistant Attorney General, for the appellee, the Tennessee Department of Children’s
Services.
OPINION
Background
Da’Moni J. and Di’Amir J. (“the Children”) were born in 2015 and 2017
respectively to Atiya L. (“Mother”) and Michael J. (“Father”). Mother testified that she
first became involved with the Tennessee Department of Children’s Services (“DCS”)
when she was asleep in the home and the Children were found walking around in the
parking lot outside the home. At that time, DCS assisted Mother in putting door alarms
and door locks on the home. In October 2018, Mother’s electricity had been cut off after
she failed to pay her bill, and the DCS case manager offered to pay the bill. Mother testified
that she declined DCS’s offer to pay her bill and the electricity was off only for
approximately a day. According to Mother, she had lost her job because she did not have
a vehicle and had no money to ride the bus. Subsequently, Mother and the Children were
about to be evicted from their home after damage to the apartment that she stated was
caused by the Children. A DCS child protective services case manager went to the home
and found the Children left alone in the apartment. According to Mother, the Children
were asleep when she left and Mother had been in a building across the street talking to an
associate about a job opportunity. At the time, the Children were ages three and one-and-
a-half.
DCS initially filed a petition with Knox County Juvenile Court (“the Juvenile
Court”) on November 2, 2018, alleging that the Children were dependent and neglected
and requesting that the Children be placed into the custody of the maternal grandmother.
On the same day, the Juvenile Court entered an ex parte order, placing the Children into
the temporary legal custody of the maternal grandmother, pending a preliminary hearing.
Less than a week later, the Juvenile Court entered a bench order, placing the Children into
the custody of DCS on November 6, 2018, “upon the report of harm by a CPS Investigator
and the oral motion of the attorney for the Tennessee Department of Children’s Services
requesting that the above styled children be placed in the foster care.” In its bench order,
the Juvenile Court found that probable cause existed to believe the Children were
dependent and neglected because the Children had been found by the CPS Investigator to
be left alone in the home. The bench order found that DCS had made reasonable efforts to
prevent removal of the Children from the home.
At the adjudicatory hearing, the parents stipulated that the Children were dependent
and neglected “due to the mother’s failure to provide appropriate care and supervision as
evidenced by the mother leaving them alone in the home and the father’s incarceration
throughout the case.” The Juvenile Court ordered that the parents would be allowed
supervised visitation with the Children, with DCS having the authority to eliminate the
supervision requirement at their discretion.
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Mother signed a copy of the “Criteria & Procedures for Termination of Parental
Rights” in November 2018. DCS developed a family permanency plan regarding the
Children on November 26, 2018, which was ratified by the Juvenile Court in January 2019.
Mother participated in the development of the permanency plan and was in agreement with
the plan, as evidenced by the Juvenile Court’s order. In its order, the Juvenile Court found
that the responsibilities in the permanency plan were reasonable, related to remedying the
reasons the Children were in foster care, and in the Children’s best interest. According to
the Juvenile Court’s termination order, those responsibilities were “designed to fix those
problems by helping [Mother] develop parenting abilities.” This permanency plan listed
several responsibilities for Mother, including requiring Mother to (1) complete a mental
health assessment and follow all recommendations therefrom; (2) complete an alcohol and
drug assessment and follow all recommendations therefrom; (3) provide DCS with
documentation to show completion of any recommended services from the assessments;
(4) comply with and pass random drug screens; (5) obtain and maintain an appropriate
home; (6) obtain and maintain a legal source of income to adequately support the family
and provide proof thereof or provide proof of efforts to obtain income; (7) visit with the
Children; (8) refrain from operating a motor vehicle without a driver’s license; (9) complete
parenting classes; (10) demonstrate learned parenting skills necessary to parent the
Children during visits; (11) refrain from leaving the Children alone at home for any period
of time; (12) be a law-abiding citizen and refrain from incurring new criminal charges; (13)
comply with all court orders; (14) cooperate with DCS and all service providers; (15) sign
releases to allow direct contact between DCS and providers; (16) refrain from associating
with known drug users; and (17) pay child support. The June 2020 permanency plan
reflected that Mother had complied with the mental health requirements of the permanency
plan, had completed parenting education classes, had stated to DCS that she had been
employed but provided no documentation for several of her statements, had no vehicle for
transportation, had been provided several bus passes, and was currently utilizing public
transportation.
Three subsequent revised permanency plans were developed in June 2019, January
2020, and June 2020, and all three plans included essentially the same responsibilities as
the initial permanency plan. Those permanency plans each were approved by the Juvenile
Court, with the Court finding that the responsibilities in the plans were reasonable, related
to remedying the reasons the Children were in foster care, and in the Children’s best
interest.
In January 2020, Mother was arrested for vandalizing a car. She pled guilty in
November 2020 to misdemeanor vandalism. During trial, Mother acknowledged that she
had pled guilty to vandalism and stated: “I ain’t worried about that. My kids was getting
abused in their home.” The affidavit of complaint identifies Jordan L., who is apparently
a sister of Ramone L., as the victim and states that Mother had punctured all four tires on
the vehicle, destroying them. It states that she also “scratched and scribbled deep the word
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‘bitch’” onto the side of the vehicle and placed long scratches “all around in several areas,”
which had destroyed the paint on the vehicle.
On October 1, 2020, DCS filed a petition to terminate Mother’s and Father’s
parental rights to the Child.1 DCS filed a motion for default judgment or to conduct a
scheduling conference. The Juvenile Court subsequently entered a continuance order,
scheduling a trial date. The continuance order stated that Mother had filed an answer to
the petition prior to the default judgment hearing and requested appointment of counsel;
however, that answer does not appear to be included in the record.
The Juvenile Court conducted a trial in April 2021. On that date, the Juvenile Court
first addressed the maternal grandmother’s pending petition for custody of the Children,
heard testimony as relevant to the pending petition, and ultimately denied the maternal
grandmother’s petition for custody. The Juvenile Court then proceeded to address the
petition to terminate Mother’s parental rights to the Children, in which the following
witnesses testified: (1) Mother; (2) Michael Cohan, a licensed private investigator hired by
DCS; (3) Mark Akers, director of Child Help foster care programs in Tennessee; (4) Walter
Ramirez, a representative of Child Help; (5) Father; and (6) Stasi Friedrich, the DCS family
services worker for the Children.
During trial, Mother testified that she made a mistake when she left the Children
unattended but “nobody is perfect.” According to Mother, she was just asking a few
questions and planned to come back to the house. Mother testified that she had consistently
visited with the Children and had a strong bond with them. According to Mother, when
she was late for visits, she was coming from work and had to ride the bus. She further
testified that she had participated in play therapy with Da’Moni. Mother stated that she
loves the Children. Mother acknowledged that she had not paid child support during the
four months prior to the petition’s filing but stated that she had been laid off from her job
due to the Covid-19 pandemic.
Mother initially denied knowing anyone named Ramone L. After admitting to
knowing Ramone L., Mother denied being in a romantic relationship with Ramone L. and
stated he was a friend. According to the records admitted at trial, Ramone L. is a man who
was charged in December 2020 with aggravated assault after Mother was struck with a
bullet from what police believed to be a .380 caliber gun. Mother described it as “a whole
misunderstanding.” According to Mother, she was walking and a bullet bounced on her leg
and Ramone L. and two other individuals had helped her. Ramone L. ultimately pled guilty
to assault in January 2021, although Mother denied that she had a tumultuous relationship
with him.
1
Although the termination proceedings involved both Mother’s and Father’s parental rights, only Mother
has appealed the termination of her parental rights.
-4-
Mother stated that Ramone L. was last at her home in March 2021 to bring some of
her money back to her. However, Michael Cohan testified that he observed a man outside
at Mother’s residence on two occasions in April 2021, who he believed to be Ramone L.
Prior to arriving at Mother’s home, Mr. Cohan had obtained information about a vehicle
jointly owned by Mother and Ramone L. Mr. Cohan testified that while outside Mother’s
home, he had observed a vehicle consistent with the vehicle’s description on multiple
occasions, observed Mother driving the vehicle, and saw Ramone L. working on the
vehicle. Mother stated that she and Ramone had shared a car at one point when they were
“around each other” but that she did not currently have a car. Although Mother testified
that she and Ramone L. were not living together, Ms. Friedrich spoke to Mother’s landlord
and the landlord confirmed to her that Mother and her boyfriend, Ramone L., were still
living in the apartment.
Regarding the allegations that Mother had not put the youngest child in a proper car
seat during an unsupervised visit, Mother explained that if you tell ETHRA Transportation
that a child has an appointment, they will provide a car seat; however, they had not provided
a car seat for the youngest child and she did not have access to her car seat at the time.
Mother said she felt like it would count against her if she did not show up so she placed
the child in a seat with a seat belt. Mother and the child were going to the DCS office at
that time.
Mother testified that she had completed therapy, an intensive outpatient program,
and her mental health assessment by February 2020. According to Mother, she had to
complete another alcohol and drug assessment because she had failed a drug screen for
THC. Mother stated that she completed a new alcohol and drug assessment and it had
recommended that she complete intensive outpatient treatment. She testified that she
completed the treatment requested and had provided a certificate to DCS.
Additionally, Mother’s attorney referred to a new mental health assessment and a
new parenting assessment that Mother had completed in late 2020. Mother did not recall
the recommendations from the recent parenting assessment. Moreover, Mother testified
that she did not recall any recommendations from the new mental health assessment.
However, Mother testified that DCS paid for her to receive mental health treatment at
Health Connect and that she had last spoken with that provider in December 2020. Mother
acknowledged that there was a six-month period right before the petition was filed when
she had no therapy. Mother testified that she was currently in therapy through Cherokee
Health and that she had attended her second appointment recently. She said it took so long
because of Covid-19 and lack of availability at a lot of places. However, Ms. Friedrich
testified that when she reached out to the service provider with whom Mother reported
working, they informed her that Mother was not in their system. They stated that Mother
had never been seen for any services at Cherokee Health Systems.
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Mother stated that at the time of trial, she had been working for approximately six
months and that she had been at her current job at a hotel for two weeks. Mother testified
that she did not have personal transportation but gets around with Uber or a bus. Mother
acknowledged that she had recently been to court because she was being evicted.
According to Mother, she was getting evicted because of complaints about her and
“apparently [she] committed fraud” because she had filled out her housing application for
Knoxville’s Community Development Corporation in 2017 when she had custody of her
oldest son and had not changed it.
Mark Akers, the director of Child Help foster care programs in Tennessee, testified
that he was the Children’s case manager for the first year and a half they were in foster
care. According to Mr. Akers, he attended several of the visits between Mother and the
Children and opined that the Children’s behavior during the visits was “all over the place,”
with them sometimes being attentive and sometimes dysregulated. Mr. Akers further
testified that after the visits with the biological parents and sometimes during the visits, the
Children had struggled “quite a bit, especially the older child, just with his emotions and
his behavior, just dysregulated, a lot of anxiety for both boys, and especially the older.”
He testified that at times Mother would display good parenting skills but at other times,
Mother would feed into the Children’s behaviors and would “almost be more of a peer than
a parent.” He stated that he believed it was sometimes confusing for the Children.
According to Mr. Akers, Mother’s behaviors would sometimes cause the Children’s
behaviors to escalate and during the time he was assigned to the case, Mother’s parenting
skills with the Children had not improved. He stated that he would have concerns with the
supervision and general safety of the Children if they were returned to Mother’s custody.
Walter Ramirez, also an employee of Child Help, testified about his observation of
the Children during visits with Mother. He testified that he had concerns with Mother’s
behavior with the Children during the visits and observed inconsistencies in her behavior
that caused him to question her parenting ability. He explained that Mother would be fine
at first but then become more childlike, which he opined “really dysregulates the children”
and was concerning about her parenting ability. He recounted an incident at Mother’s visit
where Mother had the Children hop onto her back and they were hitting the walls of the
room. One of the Children yanked off her wig. Mother was also throwing balls at the
Children’s faces. Mr. Ramirez explained that the Children had struggled with aggression
and the visit had gotten “a little bit out of hand.” He stated that they tried to de-escalate
the situation, but the Children had not calmed down.
Mr. Ramirez testified that he had observed calmer behaviors from the Children in
the foster home but that he had not seen a change in their behaviors at the visits during the
five months he had been assigned to their case. According to Mr. Ramirez, there was a
bond between Mother and the Children but the level of bond was questionable due to the
nature of the interactions between them. According to Mr. Ramirez, he does not believe
the Children see her as a mother. He testified that in the foster home, the Children had a
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“calm way about them” and were more regulated with their emotions. He opined that the
Children also have an attachment to the foster parents.
At the conclusion of the hearing, the Juvenile Court announced its ruling, wherein
it found that DCS had proven the following statutory grounds for the termination of
Mother’s parental rights: (1) abandonment by failure to provide a suitable home for the
Children, (2) substantial noncompliance with the permanency plans, and (3) failure to
manifest an ability and willingness to parent the Children. The Juvenile Court made several
findings of fact relevant to each statutory ground analyzed in its oral ruling. DCS had pled
the statutory ground of abandonment by failure to support, but the Juvenile Court found
that Mother had successfully proven that her failure to pay child support was not willful.
The Juvenile Court did not address the statutory ground of persistent conditions in its oral
ruling. Additionally, the Juvenile Court found that termination of Mother’s parental rights
was in the Children’s best interest. In its oral ruling, the Juvenile Court appears to consider
the new best interest factors that went into effect in April 2021. After DCS’s counsel
inquired, the Juvenile Court stated: “The new best interest factors incorporate all nine of
the old best interest factors. I think my findings would work either way, they would be
identical.”
The Juvenile Court subsequently entered a detailed written order with a summary
of the testimony presented, its findings of fact, and its conclusions of law. The Juvenile
Court included in its judgment an extensive summary of the testimony presented, findings
of fact, and conclusions of law. The Juvenile Court found that the witnesses, Michael
Cohan, Mark Akers, Walter Ramirez, Father, and Ms. Friedrich, were credible but that
Mother was not credible. In its written judgment, the Juvenile Court found the following
grounds for the termination of Mother’s parental rights: (1) abandonment by failure to
provide a suitable home for the Children, (2) persistent conditions, (3) substantial
noncompliance with the permanency plans, and (4) failure to manifest an ability and
willingness to parent the Children. Regarding the grounds for termination of Mother’s
parental rights, the Juvenile Court found as follows in pertinent part:2
3. ABANDONMENT - FAILURE TO PROVIDE A
SUITABLE HOME
T.C.A. §§ 36-1-113(g)(1) and 36-1-10[2](1)(A)
In this case, pursuant to Tenn. Code Ann. §§36-1-113(g)(1) and 36-1-
10[2](1)(A), the Court finds by clear and convincing evidence that [Mother]
has abandoned the children for failure to provide a suitable home. . . .
2
Because we have vacated the ground of persistent conditions, we have not included it in our recitation of
the Juvenile Court’s findings of fact and conclusions of law.
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The children were removed from [Mother’s] physical and legal
custody by a court order at the beginning stage of the proceedings in which
a petition has been filed in juvenile court alleging that [the] children are
dependent and neglected children, and the children were placed with the
Department of Children’s Services. The Department of Children’s Services
made reasonable efforts prior to the children’s removal. For a period of four
(4) months following the physical removal, the Department made reasonable
efforts to assist the mother to establish a suitable home for the children, but
[Mother] 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 [Mother] will be able to provide a suitable
home for the children at an early date. The efforts of the Department to assist
[Mother] in establishing a suitable home for the children shall be found to be
reasonable and such efforts exceed the efforts of [Mother] toward the same
goal, and [Mother] was aware that the children were in the custody of the
Department.
The Juvenile Court adjudicated the children dependent and neglected
and placed them in DCS custody, pursuant to a petition filed in Juvenile
Court, after they were removed from mother’s home, legal, and physical
custody on November 6, 2018 and found to be dependent and neglected on
January 17, 2019 within the care of the parents. The Juvenile Court’s Bench
Order that removed the children found that the Department made reasonable
efforts to prevent removal. The Department attempted to assist the mother
to prevent the removal which did not resolve the issues. The children were
left unattended on at least two occasions, one incident occurred after the
Department provided the mother with door and window locks. Further, the
Department assisted the mother to maintain her apartment however she was
about to be evicted at the time the children were removed from her care.
That during the relevant four month period of May 1, 2020 through
August 31, 2020, the Department of Children’s Services assisted the mother
to provide a suitable home for the children, to wit: preforming [sic] random
drug screens (including a hair follicle screen); offering visitation; paying for
and scheduling a second alcohol and drug assessment (due to positive drug
screens); and providing PCIT.
During the relevant four-month period of May 1, 2020 through August
31, 2020 which followed the physical removal of the children from the home
but are more recent in time, [Mother] has not made efforts to provide a
suitable home. Instead, [Mother] has been dishonest to KCDC by telling
them the children live with her, she failed to pay her rent, and engaged in
behavior which resulted in complaints with the apartment complex all of the
-8-
aforementioned have caused her to be in an eviction process; has been late to
visits, has failed to appropriately engage with the children during visits;
tested positive for THC; lied to DCS about sharing her home with a violent
criminal who pled guilty to shooting the mother; and transported Da’Moni
without a car seat. The mother has not addressed any of the issues which
brought the children into the care of the Department: she is about to be
evicted from her second apartment, the previous apartment where she resided
with children at the time of removal was located at ***; the mother has not
been able to pay her KUB bill; she continues to be engaged in violent
relationships with men; [Mother] has been dishonest with the Department
and is currently dishonest, during sworn witness testimony, to the Court; she
still has a substance abuse issue; the mother does not exhibit safe and
appropriate parenting skills; she has not actively participated in therapy; and
recently the mother pled guilty to aggressive criminal activities. The mother
is in no better position now to care for the children then when the children
were removed from her custody in November of 2018.
Once again, [Mother’s] failure to make even minimal efforts to
improve her home and personal condition demonstrates a lack of concern for
the children to such a degree that it appears unlikely that she will be able to
provide a suitable home for the children at an early date. Further, the efforts
of the Department to assist the mother in establishing a suitable home for the
children were reasonable, in that they are equal to, or exceed, the efforts of
the mother towards establishing a suitable home.
DCS has proven, by clear and convincing evidence, the ground of
abandonment for failure to provide a suitable home against [Mother].
4. SUBSTANTIAL NONCOMPLIANCE WITH
PERMANENCY PLAN
T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2)
In this case, pursuant to Tenn. Code Ann. §§36-1-113(g)(2) and 37-2-
403(a)(2), the Court finds that there is clear and convincing evidence that
[Mother and Father have] not complied with the tasks on the permanency
plans and are in substantial noncompliance with the permanency plans.
After the children came into state custody, the Department of
Children’s Services created permanency plans for them. The initial
permanency plan was prepared on November 26, 2018 and listed a number
of requirements that [Mother and Father] needed to satisfy before the
children could safely be returned home. The plans gave [Mother and Father]
until May 26, 2019 to satisfy those requirements.
-9-
The initial plan required [Mother] to complete parenting; cooperate
with DCS, the GAL, and the Court; address mental health needs; address
substance abuse issues; obtain and maintain residential stability; obtain and
maintain financial stability; visit the children; and obtain and maintain
reliable transportation. [Mother] signed the plans on November 26, 2018.
***
The Juvenile Court ratified the initial permanency plans on January
17, 2019 as in the children’s best interests and found that the requirements
for [Mother and Father] were reasonably related to remedying the reasons for
foster care.
The responsibilities for [Mother and Father] are reasonably related to
remedying the reasons for foster care. The adjudicatory order placed the
children in foster care due the inability of the parents to provide for the
appropriate care and supervision of the children as evidenced by the mother
leaving the very young children unattended and the father’s incarceration
throughout the history of the case. The responsibilities are designed to fix
those problems by helping [Mother and Father] develop parenting abilities.
The permanency plan was revised on June 5, 2019. The revised plan
reiterated the requirements in the initial plan. The revised plan gave [Mother
and Father] until December 5, 2019 to satisfy the requirements. [Mother]
signed the revised plan on June 5, 2019. . . . In addition, the Juvenile Court
ratified the revised permanency plan on August 19, 2019 as in the children’s
best interests and found that the requirements for [Mother and Father] were
reasonably related to remedying the reasons for foster care.
The permanency plan was again revised on January 6, 2020. The
revised plan reiterated the requirements of the first two plans. The revised
plan gave [Mother and Father] until July 6, 2020 to satisfy the requirements.
[Mother] signed the revised plan on January 6, 2020. . . .
The permanency plan was revised on June 3, 2020. The revised plan
reiterated the requirements of the prior three plans. The revised plan gave
[Mother and Father] until December 3, 2020 to satisfy the requirements.
[Mother and Father] signed the June 3, 2020 plan. Further, the Juvenile Court
ratified the fourth permanency plan on June 18, 2020 and found that the
requirements for [Mother and Father] were reasonably related to remedying
the reasons for foster care.
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[Mother] has not substantially complied with the responsibilities and
requirements set out for her in the permanency plans. [Mother] has not
stopped abusing drugs; secured suitable housing; or evidenced learned
parenting skills. The mother completed some assessment but did show proof
that she followed up with the recommendations. Further, she continues to
maintain a relationship with an individual who pled guilty to shooting her
and has be[en] continuously dishonest regarding said relationship. In
addition, the mother is about to be evicted and has only been employed for
two weeks.
***
The Department of Children’s Services made reasonable efforts to
help [Mother] to satisfy the requirements in the permanency plan by
providing bus passes; providing a resource guide; scheduling a mental health
and alcohol and drug assessment and assisting with the recommendations
from same; preforming [sic] random drug screens (including a hair follicle
screen); paying for and scheduling another alcohol and drug assessments (the
second assessment was necessary due to mother having positive drug
screens); providing parenting class information; providing therapeutic
visitation; and PCIT. . . . Additionally, the Department provided the
following on behalf of [Mother and Father]: services to support the children’s
basic needs for health, education and the necessities of life, including food,
clothing and shelter, a nurturing foster care placement that provided love and
affection for the children which is necessary for normal childhood
development, and ongoing case management to monitor the safety of the
children and address their medical and dental needs.
The Department provided the terms of the permanency plans and the
plan requirements were reasonable and related to remedying the conditions
that caused the children to be removed from [Mother’s and Father’s] custody
in the first place. [Mother’s and Father’s] noncompliance was substantial in
light of the degree of noncompliance and the importance of the particular
requirements that were not met by [Mother and Father]. The requirements
of the permanency plans were intended to address the problems that led to
removal; they were meant to place the parents in a position to provide the
children with a safe, stable home and consistent appropriate care. [Mother
and Father] did not put in any real effort to complete the requirements of the
plans in a meaningful way in order to place themselves in a position to take
responsibility for the children.
The Department has diligently attempted to assist the parents in
completing the permanency plan requirements. The Department of
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Children’s Services made reasonable efforts to assist the parents in satisfying
the requirements as stated in the permanency plan, yet [Mother and Father]
did [not] utilize the copious amount of services offered to them. They did
not avail themselves of the services to resolve the issues which brought the
children into the care of the Department.
The Court finds that, as of the date of hearing, the permanency plans
prepared by the Department and ratified by the Juvenile Court are reasonable
and related to remedying the reasons for which the children was placed into
foster care, such that, had [Mother and Father] cooperated with the same, it
would have addressed the reasons for which the children were in DCS
custody and would have resolved the issues that kept the children from
returning home. [Mother and Father] are not in substantial compliance with
the permanency plans.
DCS has proven, by clear and convincing evidence, the ground of
substantial noncompliance with the permanency plans against [Mother and
Father].
***
6. FAILURE TO MANIFEST AN ABILITY AND
WILLINGNESS TO ASSUME CUSTODY
T.C.A. § 36-1-113(g)(14)
In this case, pursuant to Tenn. Code Ann. § 36-1-113(g)(14), the Court
finds that there is clear and convincing evidence that [Mother and Father]
have failed to manifest an ability or willingness to assume custody of the
children.
[Mother and Father] failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or financial
responsibility of the children. Placing the children in the legal and physical
custody of [Mother or Father] would pose a risk of substantial harm to the
physical or psychological welfare of the children. [Mother] lives with the
man who shot her with a .38 caliber hand gun as shown by witness testimony,
she does not acknowledge that her relationship with [Ramone L.] is
tumultuous, she does not know how to safely parent the children, she has not
attended therapy in six months, she continues to abuse illegal substances, and
the mother is about to be evicted from her residence which is the same
situation as when the children came into the care of the Department. . . .
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[Mother and Father] were aware that their children were placed in the
care of the Department. Since that time, [Mother and Father] have failed to
show any ability or willingness to care for their children. [Mother and
Father] have done nothing to show that they have the ability or willingness
to care for the children. [Mother’s and Father’s] actions have shown a
complete lack of interest and concern regarding their children’s welfare.
In addition, [Mother and Father] have not complied with the
requirements as set forth in the permanency plan. [Mother and Father] did
not complete the tasks on the permanency plans and said requirements were
established to resolve the issues that brought the minor children into the care
of the Department. [Mother] has not shown that she can safely care for or
supervise the children. Due to the substantial unresolved issues of domestic
violence, substance abuse, inability to safely parent and housing, if the
children were returned to the legal and physical custody of [Mother and
Father], it would pose a risk of substantial harm to the physical and
psychological welfare of the minor children.
DCS has proven, by clear and convincing evidence, the ground for
termination for failure to manifest an ability and willingness to assume
custody against [Mother and Father].
In its written judgment, the Juvenile Court appears to address a combination of the
best interest factors in effect at the time the petition was filed and the new factors that had
recently been enacted prior to trial. Concerning the best interest analysis, the Juvenile
Court found as follows in its written order:
7. BEST INTEREST
T.C.A. § 36-1-113(i)
Under Tenn. Code Ann. §36-1-113(i)(1), the Court is required to find
that termination of parental rights is in the children’s best interest.
In this case, the Court finds that there is clear and convincing evidence
that termination of [Mother’s and Father’s] parental rights is in the best
interest of the children.
After having found that grounds exist to terminate the parental rights
of [Mother and Father], the Court analyzed whether or not it is in the
children’s best interest for termination to be granted and the Court considered
all relevant and child-centered factors applicable to the minor children’s case.
In addition, when considering the following factors, the Court considered the
prompt and permanent placement of the children in a safe environment as
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presumed to be in the children’s best interest. The nonexclusive list of best
interest factors, which are found in T.C.A. § 36-1-113(i)(1), are supported by
the facts of this case and weigh in favor of terminating [Mother’s and
Father’s] parental rights. Further, the Court reviewed the best interest factors
as pled and amended according to T.C.A. § 36-1-113(i)(1)(A)-(T). The
combined best interest factors clearly indicate that termination of [Mother’s
and Father’s] parental rights is in the best interest of the minor children. In
coming to that determination, the Court considered the following:
1. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father], because they have not made changes in
their conduct or circumstances that would make it safe for the children to go
home. [Mother and Father] have made no effort to remedy the conditions
that prevent placement with them, and it is not in the children’s best interest
to be with the parents. [Mother and Father] have not complied with the
requirements of the permanency plan or resolved the issues that brought the
children into the care of the Department.
2. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] because they have failed to effect a lasting
adjustment after reasonable efforts by the Department for such a duration of
time that lasting adjustment does not reasonably appear possible. The
children have been in the care of the Department since November 6, 2018,
and the same issues exist for the parents as when the children came into
custody.
***
4. It is in the children’s best interest for termination to be granted as
to [Mother and Father] because there is not a meaningful parent/children
relationship between the parents and the children. . . . The mother has not
shown a meaningful parent child relationship due to her inability to parent
and lack of regard concerning her parenting skills.
5. It is in the children’s best interest for termination to be granted as
to [Mother and Father] because changing caregivers at this stage of the
children’s lives would have a detrimental effect on them. The children are
placed in a loving home, being well cared for, and having their needs met.
The foster parents wish to adopt the minor children. [Mother and Father]
have failed to change any of their behaviors or put the needs of the children
above their own desires. The foster parents have provided a safe and stable
home for the minor children and they are thriving. If Da’Moni and Di’Amir
- 14 -
were removed from placement, this would have an extreme detrimental effect
both psychologically and physically on the minor children.
6. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] due to the effect that a termination of
parental rights will have on the children’s critical need for stability and
continuity of placement throughout the children’s minority. The children did
not have stability until they were placed in the care of the Department, and
the foster parents wish to continue to provide them with stability and
continuity.
7. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since changing caretakers and physical
environment is likely to have a negative effect on the children’s emotional,
psychological and medical condition. The minor children entered [foster
care] after being left unattended by the mother. The children have been in
the care of the Department for approximately two and a half years, and the
mother still has not shown an ability to safely provide for the care and
supervision of the minor children. The foster parents have continuously
provided for the children’s physical, emotional, medical and psychological
needs, changing caretakers would have an extreme negative effect on the
children.
8. It in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the parents have not demonstrated
continuity and stability in meeting the children’s basic material, educational,
housing, and safety needs. The mother is about to be evicted, lives with a
dangerous criminal, and abuses illegal substances. . . .
9. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since there is no secure and healthy
parental attachment between the parents and the children and there is no
reasonable expectation that the parents can create such attachment. . . .
During visitation sessions, the minor children and the mother have shown
that they do not have a healthy parental attachment.
10. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] because the parent has not maintained
regular visitation or other contact with the children and has not used the
visitation or other contact to cultivate a positive relationship with the
children. . . . [Mother] has not cultivated a positive relationship with the
children and has shown that she is incapable of forming such a relationship
with the children.
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11. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the minor children have created a
healthy parental attachment with another person or persons in absence of the
parent. The minor children are bonded with the foster parents and they are
placed together in the foster home. The children have lived with the foster
parents since April of 2019. The foster parents have provided for all their
physical and emotional needs including giving love and affection.
12. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] because the children have emotionally
significant relationships with persons other than parents and caregivers,
including biological siblings, and the likely impact of various available
outcomes on these relationships and the children’s access to information and
the children’s heritage. The minor children are placed together.
13. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the parents have not demonstrated
such a lasting adjustment of circumstances, conduct or conditions to make it
safe and beneficial for the children to be in the home of the parents, there is
likely criminal activity in the home or by the parents, and the parents’ use of
alcohol, controlled substances or controlled substance analogues would
render the parents unable to consistently care for the children in a safe and
stable manner. [Mother and Father] have not completed a single task on the
permanency plans, have been arrested, and abuse illegal substances.
14. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the parents have not taken advantage
of available programs, services, or community resources to assist in making
a lasting adjustment of circumstances, conduct or conditions. The
Department has made available an abundant amount of services for the
parents to utilize, yet the parents are still in the same position as the[y] were
when the children entered custody in 2018.
15. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the Department has made reasonable
efforts to assist the parents in making a lasting adjustment.
16. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the parents have not demonstrated a
sense of urgency in seeking custody of the children or addressing the
circumstance, conduct, or conditions that made an award of custody unsafe
and not in the children’s best interest to return home. The children entered
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care in November of 2018, the parents have yet to resolve the issues that
brought the children into the care of the Department.
17. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the parents have never provided safe
and stable care for the children. The children were removed due to the
mother’s failure to provide safe and stable care for the children and the father
has never maintained care for them.
18. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the parents have not demonstrated an
understanding of the basic and specific needs required for the children to
thrive. Neither parent has shown a[n] understanding of what needs the
children have to flourish and thrive.
19. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] because the parents have never
demonstrated the ability and commitment to creating and maintaining a home
that meets the children’s basic and specific needs and in which the children
can thrive. The mother is involved in an eviction process, resides with a
violent criminal, and she lacks the ability to appropriately supervise the
children. . . . Further, both parents have substance abuse issues which would
impact their ability to have a safe and stable home environment for the
children.
20. It is in the best interest of the minor children for termination to be
granted as to [Mother and Father] since the physical environment of the
parents’ home is not healthy and safe for the children. [Mother and Father]
have unresolved substance abuse issues and have not completed any services.
Further, the mother lives in a home with an individual who pled guilty to
shooting her and she has not admitted that he is dangerous.
***
Thus the Court finds that the Tennessee Department of Children’s
Services has proven, by clear and convincing evidence, that grounds for
termination of parental rights exists and has proven, by clear and convincing
evidence, that it is in the best interest of the children that all of the parental
rights of [Mother and Father] to said children be forever terminated; and
therefore the complete custody, control, and FULL GUARDIANSHIP of
said children be awarded to the State of Tennessee, Department of Children’s
Services, with the right to place said children for adoption and to consent to
said adoption in loco parentis.
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Following entry of the Juvenile Court’s judgment, Mother timely appealed to this
Court.
Discussion
Although not stated exactly as such, Mother raises the following issues for our
review on appeal: (1) whether the Juvenile Court’s written judgment terminating Mother’s
parental rights accurately reflects the Juvenile Court’s independent judgment as announced
at the conclusion of trial; (2) whether this trial was so replete with errors as to deny Mother
the right to a fundamentally fair proceeding; (3) whether the Juvenile Court erred in finding
by clear and convincing evidence that Mother abandoned the Children by failing to provide
a suitable home; (4) whether the Juvenile Court erred in finding by clear and convincing
evidence that Mother was not in substantial compliance with the permanency plans; (5)
whether the Juvenile Court actually found by clear and convincing evidence that the
conditions which led to the removal of the Children from Mother’s home still persisted,
and if so, whether such finding was in error; (6) whether the Juvenile Court erred in finding
by clear and convincing evidence that Mother failed to manifest an ability and willingness
to assume custody of the Children; (7) whether the evidence presented at trial supports a
finding by clear and convincing evidence that termination of Mother’s parental rights is in
the best interest of the Children; and (8) whether the Juvenile Court applied the correct best
interest factors in its best interest analysis. Additionally, DCS raises an issue as to whether
Mother waived various arguments by failing to preserve her objections at trial, and
alternatively, whether Mother is entitled to relief by collaterally attacking the proceedings
based on ineffective assistance of counsel.
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.3 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
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 at3
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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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.
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:
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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 grounds4 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,5 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
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
4
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
5
Tenn. Code Ann. § 36-1-113(i).
- 20 -
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.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). In combination with a best interest finding, 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).
Additionally, the Trial Court is the arbiter of witness credibility of those who testify
live before it. As our Supreme Court has instructed:
When it comes to live, in-court witnesses, appellate courts should
afford trial courts considerable deference when reviewing issues that hinge
on the witnesses’ credibility because trial courts are “uniquely positioned to
observe the demeanor and conduct of witnesses.” State v. Binette, 33 S.W.3d
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215, 217 (Tenn. 2000). “[A]ppellate courts will not re-evaluate a trial judge’s
assessment of witness credibility absent clear and convincing evidence to the
contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999); see also Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340
S.W.3d 352, 360 (Tenn. 2011). In order for evidence to be clear and
convincing, it must eliminate any “serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” State v. Sexton,
368 S.W.3d 371, 404 (Tenn. 2012) (quoting Grindstaff v. State, 297 S.W.3d
208, 221 (Tenn. 2009)). Whether the evidence is clear and convincing is a
question of law that appellate courts review de novo without a presumption
of correctness. Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 515 (Tenn.
2013), (citing In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010)), cert.
denied, ––– U.S. ––––, 134 S.Ct. 224, 187 L.Ed.2d 167 (2013).
Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014).
We first address Mother’s issues concerning whether the Juvenile Court’s judgment
reflects the independent judgment of the Juvenile Court. The Juvenile Court’s judgment
was prepared by DCS before it was entered by the Juvenile Court. In its oral ruling at the
conclusion of trial, the Juvenile Court did not mention the statutory ground of persistent
conditions. However, that ground was found by the Juvenile Court in its written order.
Because we cannot conclude that the Juvenile Court’s finding of this ground was its
independent judgment, we vacate the ground of persistent conditions.
Nevertheless, we disagree with Mother’s argument that the remainder of the
Juvenile Court’s judgment was not its independent judgment. We hold that this case is
distinguishable from In re Marneasha D., No. W2017-02240-COA-R3-PT, 2018 WL
4847108 (Tenn. Ct. App. Oct. 4, 2018), no perm. app. filed, and In re Colton B., No.
M2017-00997-COA-R3-PT, 2017 WL 6550620 (Tenn. Ct. App. Dec. 22, 2017), no perm.
app. filed, which were cited by Mother in her appellate brief as examples of termination
proceedings in support of her argument. In those cases, the trial court had made little or
no findings specific to the grounds or best interest determination in its oral ruling before
instructing a party to draft a judgment. However, in the present case, the Juvenile Court
made several findings of fact during its oral ruling concerning the remaining grounds for
termination of Mother’s parental rights, as well as the best interest analysis. Although the
written judgment is more detailed than the oral ruling, the findings of fact within its written
judgment are consistent with those made in its oral ruling. The findings of fact made by
the Juvenile Court in its oral ruling were sufficient to support the remaining statutory
grounds for termination and the best interest analysis. Therefore, we hold that the Juvenile
Court’s written judgment concerning the remaining grounds is the independent judgment
of the Juvenile Court.
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We next address Mother’s issue regarding whether the trial in this matter was “so
replete with errors” as to deny Mother the right to a fundamentally fair proceeding.
According to Mother, she is entitled to “a new trial with new counsel at a minimum.”
However, DCS raises an issue as to whether Mother waived various arguments in this
regard by failing to preserve her objections at trial, and alternatively, whether Mother is
entitled to relief by collaterally attacking the proceedings based on ineffective assistance
of counsel. Although we agree with DCS that Mother has waived some issues by failing
to raise them in the Juvenile Court proceedings, we will address these alleged errors as a
whole regarding whether Mother received a fundamentally fair proceeding in this
termination action. As our Supreme Court has held, a parent is entitled to a fundamentally
fair proceeding when termination of his or her parental rights is being sought. See In re
Carrington H., 483 S.W.3d at 522.
Some of the alleged errors of which Mother complains involve actions made by her
trial counsel during the termination proceedings. Other alleged errors refer to actions by
the Juvenile Court. In arguing that she was deprived of a fundamentally fair proceeding,
Mother points to the lack of an opening and closing statement at trial by Mother’s counsel
and her trial counsel’s failure to object to inadmissible evidence. We recognize that these
choices by trial counsel may well have been strategic decisions by counsel seeking to best
represent Mother’s interests. Additionally, none of the attorneys that participated in trial
had given an opening or closing statement during trial, and Mother has not demonstrated
how the lack of an opening or closing statement or the admission of any such evidence had
denied her a fundamentally fair proceeding. Despite this, Mother’s counsel represented
her during trial by participating in cross-examination of several witness, eliciting testimony
that was favorable to Mother. In fact, during trial counsel’s questioning of Mother
regarding child support and her employment, the Juvenile Court stated that it was not
finding the statutory ground of abandonment by failure to support upon its finding that
Mother had successfully rebutted the statutory presumption that her failure to support was
willful.
Mother further argues that the Juvenile Court read a report that was relevant to the
permanency hearing conducted after the termination trial, and such report was not
admissible at the termination trial. Mother states that the Juvenile Court referenced the
report during Mother’s testimony but that its contents are unknown. The Juvenile Court
mentions reading an unknown report during trial but does not state its contents. This report
neither was entered as an exhibit during the termination trial nor was it referenced in the
Juvenile Court’s judgment terminating Mother’s parental rights. There is no evidence that
the Juvenile Court considered this report in making its decision in the termination
proceedings.
Additionally, Mother argues that the Juvenile Court used the wrong best interest
factors and points out that the final order contained “so much extraneous language” that
she was unable to separate the Juvenile Court’s findings from language included by DCS.
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We have agreed with Mother that there was an insufficient record to demonstrate the
Juvenile Court’s independent judgment as to the ground of persistent conditions. However,
as stated above, the Juvenile Court made sufficient findings of fact and conclusions of law
during its oral ruling that are consistent with its written order, such that the remainder of
the judgment is the independent judgment of the Juvenile Court.
Mother also takes issue with the fact that the written judgment was not entered by
the Juvenile Court within thirty days as statutorily required, which had delayed her appeal.
See Tenn. Code Ann. § 36-1-113(k) (“The court shall enter an order that makes specific
findings of fact and conclusions of law within thirty (30) days of the conclusion of the
hearing.”). The termination trial was conducted on April 29, 2021. The Juvenile Court’s
written judgment was filed on June 11, 2021, approximately two weeks more than the
thirty-day requirement. This Court has previously determined that a trial court’s
noncompliance with the thirty-day requirement in Tennessee Code Annotated § 36-1-
113(k) does not deprive the trial court of subject matter jurisdiction, nor does it require or
contemplate this Court vacating a trial court’s termination judgment on that basis alone.
See In re Jackson G., No. M2013-02577-COA-R3-PT, 2014 WL 3844793, at *4 (Tenn. Ct.
App. Aug. 4, 2014), no perm. app. filed. Although the trial court should enter its
termination orders as expeditiously as possible, failure to enter its order within thirty days
as required by Tennessee Code Annotated § 36-1-113(k) does not require this Court to
vacate or reverse a trial court’s judgment. See In re Jaxx M., No. E2018-01041-COA-R3-
PT, 2019 WL 1753054, at *4 (Tenn. Ct. App. Apr. 17, 2019), no perm. app. filed; In re
M.R.W., No. M2005-02329-COA-R3-PT, 2006 WL 1184010, at *3-4 (Tenn. Ct. App. May
3, 2006), no perm. app. filed.
Upon our review of the record, it appears that Mother’s counsel actively represented
her throughout the proceedings. Mother’s counsel cross-examined multiple witnesses,
eliciting testimony that was beneficial to Mother’s case, and was ultimately successful in
obtaining denial of one statutory ground for termination. Based on the foregoing, we hold
that Mother was not deprived of a fundamentally fair proceeding.
We next address whether the Juvenile Court erred in finding by clear and convincing
evidence that Mother abandoned the Children by failing to provide a suitable home.
Tennessee Code Annotated § 36-1-113(g)(1) (2021) provides abandonment as a statutory
ground for the termination of a parent’s parental rights. Tennessee Code Annotated § 36-
1-102(1)(A)(ii) (Supp. 2020) defines abandonment in relevant part as follows:
(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;
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(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
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[.]
The record reflects that the Children were removed from Mother’s custody in
November 2018, as reflected in the Juvenile Court records from the dependency and
neglect proceedings. DCS had filed a petition with the Juvenile Court alleging the Children
were dependent and neglected in the care of Mother. In a subsequent bench order placing
the Children in DCS custody, the Juvenile Court found that DCS had made reasonable
efforts to prevent removal of the Children from the home. Subsequently, the Juvenile Court
found the Children to be dependent and neglected due in part to Mother’s “failure to
provide appropriate care and supervision as evidenced by the mother leaving them alone
in the home.”
In her brief, Mother seems to take issue with DCS’s choice to go through the
permanency plans with Mother, instead of its own representative, and the court’s reliance
on Mother’s testimony of DCS’s efforts when it determined her not to be credible.
According to Mother, there was no credible evidence supporting the finding by the Juvenile
Court that DCS had provided reasonable efforts to assist Mother following the removal of
the Children from her custody.
The Juvenile Court found Mother not to be credible “due to her being untruthful
during testimony.” However, we note that a trial court may find some portions of an
individual’s testimony credible, while determining other portions to not be credible.
Although the Juvenile Court did not distinguish between specific testimony it considered
credible and not credible, there were portions of Mother’s testimony it considered credible.
For example, it is clear upon review of its findings that the Trial Court had not completely
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discounted Mother’s entire testimony. Based on Mother’s testimony, the Juvenile Court
found that Mother had successfully rebutted the statutory presumption that her failure to
support was willful. To make that finding, the Trial Court had to credit Mother’s testimony
regarding her financial and employment situation. Similarly, the Trial Court appears to
credit Mother’s testimony concerning services provided by DCS.
The Juvenile Court found that DCS had provided reasonable efforts to assist Mother
from May 1, 2020 through August 31, 2020 by performing random drug screens, including
a hair follicle drug screen; offering visitation between Mother and the Children; paying for
and scheduling a second alcohol and drug assessment for Mother; and providing parent-
child interaction therapy (PCIT). Although Mother argues there is no credible evidence to
support this finding, we disagree. There is documentation supporting this finding that was
admitted as exhibits during trial. As relevant to this time period, DCS developed a
permanency plan in June 2020 that was approved by the Juvenile Court shortly thereafter.
Returning the Children to a parent was a goal on the permanency plan. In that plan, Mother
was required to complete several action steps, which were aimed toward reunifying Mother
with the Children. The Juvenile Court conducted a permanency hearing in June 2020,
during which it found that DCS was making reasonable efforts toward completion of the
permanency plan goal of returning the Children to the parent by “ensuring that the children
are receiving placement and services as recommended and that the parents have access to
all treatment and services required on the plan.” This order further states that DCS had
provided or referred the parent for services, including a mental health assessment, an
alcohol and drug assessment, alcohol and drug treatment, administration of drug screens,
medical evaluation, providing bus passes or other transportation, and facilitating visitation
with the Children.
Although Mother is correct that the evidence was not presented that a hair follicle
drug screen was conducted during this time, there is evidence that Mother took and failed
a drug screen in May 2020. The method of testing was not clarified in the record. Mother
further testified that following the failed drug screen, she subsequently completed a new
alcohol and drug assessment that had recommended intensive outpatient treatment.
Although not giving credit to Mother’s testimony about completing her drug treatment, the
Juvenile Court found that Mother had completed some assessments. Additionally, Stasi
Friedrich, the DCS family services worker, testified that Mother and the Children had been
involved with PCIT since January 2020 through the Center of Excellence. Upon a review
of the record on appeal, the evidence presented does not preponderate against the Juvenile
Court’s finding that DCS provided reasonable efforts to assist Mother during a period of
four months, as required by Tennessee Code Annotated § 36-1-102(1)(A)(ii)(c).
Concerning whether Mother had made efforts to provide a suitable home for the
Children, the Juvenile Court found that Mother had been dishonest with Knoxville’s
Community Development Corporation (“KCDC”) by stating that the Children had been
living with her. She had also engaged in behavior that resulted in her receiving complaints
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to the apartment complex. Due to the foregoing, Mother’s landlord had initiated eviction
proceedings against her that were ongoing at the time of trial. It is undisputed that Mother
had attended therapeutic visits with the Children, but the Juvenile Court found that Mother
had arrived late for visits and had “failed to appropriately engage with the children during
visits.” During trial, Mother explained how she had transported the Child, Da’Moni,
without a car seat during an unsupervised visit. Mother further acknowledged failing a
drug screen in May 2020 for THC. Additionally, the Juvenile Court found that Mother had
“lied to DCS about sharing her home with a violent criminal [Ramone L.] who pled guilty
to shooting the mother.” According to the Juvenile Court, Mother still had not
acknowledged that her relationship with Ramone L. was tumultuous.
In making its decision, the Juvenile Court found that Mother had not addressed any
of the issues that caused the Children to be placed into foster care and was not currently in
a better place to care for the Children than she was in November 2018. Although the
Juvenile Court found that Mother had completed some required assessments, she had not
followed through with the recommendations from those assessments. According to the
Juvenile Court, Mother had continued to engage in violent relationships, was about to be
evicted from her second apartment, had been dishonest with DCS and with the Juvenile
Court during the court proceedings, continued to have a substance abuse issue, had not
actively participated in therapy, and had recently pled guilty to “aggressive criminal
activities.” The Juvenile Court found that Mother had failed to make even minimal efforts
to improve her home and personal circumstances, which had demonstrated a lack of
concern for the Children such that it appeared unlikely she would be able to provide a
suitable home at an early date. Upon our review of the record, we find and hold, as did the
Juvenile Court, that DCS proved that Mother had abandoned the Children by failing to
provide them with a suitable home. We, therefore, affirm this ground for the termination
of Mother’s parental rights.
We next address whether the Juvenile Court erred by finding the ground of
substantial noncompliance with the permanency plans against Mother. Concerning
substantial noncompliance with the permanency plans, Tennessee Code Annotated § 36-1-
113(g)(2) (2021) provides:
(2) There has been substantial noncompliance by the parent or guardian with
the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4;
The Juvenile Court found that the permanency plan requirements were reasonably
related to the reasons for removal. Throughout the time the Children were in DCS custody,
the requirements of the court-approved permanency plans required Mother to (1) complete
a mental health assessment and follow all recommendations therefrom; (2) complete an
alcohol and drug assessment and follow all recommendations therefrom; (3) provide DCS
with documentation to show completion of any recommended services from the
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assessments; (4) comply with and pass random drug screens; (5) obtain and maintain an
appropriate home; (6) obtain and maintain a legal source of income to adequately support
the family and provide proof thereof or provide proof of efforts to obtain income; (7) visit
with the Children; (8) refrain from operating a motor vehicle without a driver’s license; (9)
complete parenting classes; (10) demonstrate learned parenting skills necessary to parent
the Children during visits; (11) refrain from leaving the Children alone at home for any
period of time; (12) be a law-abiding citizen and refrain from incurring new criminal
charges; (13) comply with all court orders; (14) cooperate with DCS and all service
providers; (15) sign releases to allow direct contact between DCS and providers; (16)
refrain from associating with known drug users; and (17) pay child support.
Mother’s primary issue concerning this ground, other than the insufficiency of the
judgment, appears to be with the avenue in which DCS sought to establish its case. DCS
called Mother as a witness at trial and asked Mother during direct examination what efforts
she had made to comply with the steps of the permanency plans. By doing so, Mother
argues in her brief that there is a lack of evidence regarding development of the permanency
plans and why certain requirements were included in the plans. However, Mother fails to
specify why that testimony would be important or to otherwise present an argument as to
why the requirements for Mother on the plans were not related to remedying the reasons
for foster care. Several court orders were entered into evidence reflecting findings that the
requirements in the permanency plans were reasonable and related to the reasons
necessitating foster care. The Juvenile Court further made this finding in the termination
trial. We agree with Mother that Mother does not carry the burden of proof for establishing
compliance with the permanency plans. However, by calling Mother as a witness at trial,
DCS was not shifting the burden onto Mother to establish that grounds did not exist, and
Mother presents no legal authority to support her argument. Regardless of which witnesses
DCS called, it maintained the burden of establishing that statutory grounds existed, as well
as whether termination is in the Children’s best interest. We find no merit with Mother’s
argument in this regard.
In her argument concerning substantial noncompliance with the permanency plan,
Mother also argues that there was a lack of evidence to support reasonable efforts by DCS
to assist Mother. Although we recognize that the Juvenile Court made this finding in its
written order, DCS is not required to demonstrate reasonable efforts concerning the
statutory ground of substantial noncompliance with the permanency plans. See In re
Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015) (holding that proof of reasonable efforts is
not a precursor to termination of parental rights, is required for abandonment by failure to
provide a suitable home, and is a factor in the best interest analysis). We find no merit to
this argument by Mother.
The Juvenile Court found that Mother had failed to substantially comply with the
reasonable requirements in the permanency plans. Mother has consistently visited the
Children and participated in PCIT with the Children. Based on the June 2020 permanency
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plan, it appears that Mother had initially complied with a mental health assessment and
completed parenting classes. However, the Juvenile Court found that Mother continued to
abuse illegal drugs, had not secured stable housing, and had not demonstrated any learned
parenting skills. Although the record reflects that Mother paid some child support
payments at some point while the Children were in foster care, Mother acknowledged
during trial that she had not paid any child support for the Children during the four months
prior to the petition’s filing.
In its judgment, the Juvenile Court found that Mother had completed some
assessments required by the permanency plans but had not provided proof of completion
for the recommendations from those assessments. Mother had complied with an alcohol
and drug assessment in 2019 but was required to have a second assessment after she failed
a drug screen. Mother testified that she had completed the new assessment and the
intensive outpatient treatment recommended from that assessment. However, the Juvenile
Court found that Mother had continued to abuse drugs and had not provided proof that she
completed the recommendations from her assessments, which suggests that the Juvenile
Court did not find Mother’s testimony in this regard to be credible. Additionally, Mother
testified to completing a new mental health assessment and parenting assessment in late
2020, to which Mother did not recall the recommendations from either assessment, nor did
she provide proof of completion of any recommendations. Although Mother testified that
she had been participating in therapy at Cherokee Health, Ms. Friedrich testified that she
contacted Cherokee Health Systems and was informed by the provider that Mother had
never been a patient at the facility. The Juvenile Court further found that Mother had not
demonstrated any learned parenting skills. In fact, Mark Akers and Walter Ramirez
testified that Mother’s relationship with the Children was not an appropriate parent-child
relationship and each described their concerns with Mother’s behaviors during visits.
Additionally, the Juvenile Court found that Mother had continued a relationship
with an individual who had pled guilty to shooting her, had been dishonest about the
relationship, and was going to be evicted from her home soon, none of which supports that
Mother had created a stable home environment for the Children. In fact, the Juvenile Court
found that Mother’s pending eviction puts her in a place similar to when the Children were
removed from her custody. The Juvenile Court found that although services were offered
to Mother, she had not participated in those services to resolve the issues necessitating
foster care. Although Mother initially had completed some requirements on the
permanency plans, we find and hold, as did the Juvenile Court, that DCS proved by clear
and convincing evidence that Mother had not substantially complied with the reasonable
requirements in the permanency plans. We, therefore, affirm this ground for the
termination of Mother’s parental rights.
We next address whether the Juvenile Court erred by finding by clear and
convincing evidence the ground of failure to manifest an ability and willingness to assume
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custody of or financial responsibility for the Children as to Mother. Tennessee Code
Annotated § 36-1-113(g)(14) (2021) provides as follows as a ground for termination:
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[.]
This ground has two prongs. Regarding the first prong of our analysis, 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). The second prong of the statute requires the
court to consider 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. See
Tenn. Code Ann. § 36-1-113(g)(14) (2021).
With regard to the first prong of this ground, the Juvenile Court found that Mother
had been living with a man, Ramone L., who had shot her with a 38-caliber handgun and
that Mother continued to deny that her relationship with that man was tumultuous. The
record reflects that Ramone L. pled guilty to assault against Mother following the incident.
According to the Juvenile Court, Mother was not able to safely parent the Children. Mother
had not attended therapy in at least six months, continued to abuse illegal substances, and
would soon be evicted from her home. Additionally, the Juvenile Court found that Mother
had failed to comply with the requirements of the permanency plans and that Mother’s
actions had demonstrated “a complete lack of interest and concern” as to the Children’s
welfare. A parent’s actions or inaction can be analyzed by the trial court in its
determination of whether the parent has established a lack of willingness to assume custody
of or financial responsibility for the Child. See In re Ryan J. H., No. M2019-01439-COA-
R3-PT, 2020 WL 7861376, at *14 (Tenn. Ct. App. Dec. 22, 2020), no perm. app. filed,
(“[The parent’s] actions in the present case raise doubts as to his actual willingness to
assume custody of the Child.”); In re Ellie K., No. M2019-01269-COA-R3-PT, 2020 WL
1943522, at *11 (Tenn. Ct. App. Apr. 23, 2020), no perm. app. filed, (“It is well established
that a parent’s actions can demonstrate a lack of willingness to assume custody of or
financial responsibility for the child.”). We agree with the Juvenile Court that clear and
convincing evidence was presented by DCS to establish that Mother had failed to manifest
an ability and willingness to assume custody of or financial responsibility for the Children,
as required by Tennessee Code Annotated § 36-1-113(g)(14).
By the same quantum of proof, DCS has proven the second prong in establishing
that returning the Children to Mother’s custody would pose a risk of substantial harm to
the Children’s physical or psychological welfare. The Juvenile Court found that returning
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the Children to Mother’s custody would pose a risk of substantial harm to the Children
“due to the substantial unresolved issues of domestic violence, substance abuse, inability
to safely parent and housing.” We agree with the Juvenile Court that returning the Children
to Mother’s legal or physical custody would create a risk of substantial harm to the
Children. Therefore, we affirm the Juvenile Court’s finding that DCS has proven this
statutory ground for termination of Mother’s parental rights by clear and convincing
evidence.
Finally, having determined that grounds exist for the termination of Mother’s
parental rights, we next address her argument concerning the best interest analysis. Mother
argues that the Trial Court erred in finding by clear and convincing evidence that
termination of her parental rights was in the Children’s best interest. As part of her
argument, Mother avers that the Juvenile Court utilized the wrong best interest factors in
its analysis. Upon review of the record, the Juvenile Court analyzed the new factors in its
oral ruling that had not taken effect at the time the termination petition was filed. However,
when questioned by DCS counsel, the Juvenile Court stated that “[t]he new best interest
factors incorporate all nine of the old best interest factors.” As such, the Juvenile Court
stated that its findings would be identical and would be consistent with the factors relevant
to this case.
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) that was in
effect when the termination petition was filed provides a set of non-exclusive factors courts
are to consider in determining whether termination of parental rights is in a child’s best
interest:
(i) In determining whether termination of parental or guardianship rights
is in the best interest of the child pursuant to this part, the court shall
consider, but is not limited to, the following:
(1) Whether the parent 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;
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(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home
is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or
controlled substance analogues as may render the parent or guardian
consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional 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).6
6
Although the following best interest factors were not in effect at the time the termination petition was
filed, we include these for purposes of comparison with the previous best interest factors that are relevant
to this proceeding. The newly enacted best interest factors provide as follows:
(i)(1) In determining whether termination of parental or guardianship rights is in the best interest
of the child, the court shall consider all relevant and child-centered factors applicable to the
particular case before the court. Those factors may include, but are not limited to, the following:
(A) The effect a termination of parental rights will have on the child’s critical need for
stability and continuity of placement throughout the child’s minority;
(B) The effect a change of caretakers and physical environment is likely to have on the
child’s emotional, psychological, and medical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting the child’s
basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental attachment, and if not,
whether there is a reasonable expectation that the parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact with the child and
used the visitation or other contact to cultivate a positive relationship with the child;
(F) Whether the child is fearful of living in the parent’s home;
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Mother argues on appeal that the Juvenile Court utilized the wrong best interest
factors, which would require reversal. However, the Juvenile Court concluded that the
relevant best interest factors that were in effect prior to April 2021 are included in the newly
enacted statutory factors that it had addressed in its oral ruling. We agree with the Juvenile
Court that the best interest factors relevant to this case are included in the new version of
factors that went into effect in April 2021. For example, factors (1) and (7) in the relevant
best interest factors are combined in the new best interest factors in subsection (J), which
(G) Whether the parent, parent’s home, or others in the parent’s household trigger or
exacerbate the child’s experience of trauma or post-traumatic symptoms;
(H) Whether the child has created a healthy parental attachment with another person or
persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons other than
parents and caregivers, including biological or foster siblings, and the likely impact of
various available outcomes on these relationships and the child’s access to information
about the child’s heritage;
(J) Whether the parent has demonstrated such a lasting adjustment of circumstances,
conduct, or conditions to make it safe and beneficial for the child to be in the home of the
parent, including consideration of whether there is criminal activity in the home or by the
parent, or the use of alcohol, controlled substances, or controlled substance analogues
which may render the parent unable to consistently care for the child in a safe and stable
manner;
(K) Whether the parent has taken advantage of available programs, services, or community
resources to assist in making a lasting adjustment of circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent in making a
lasting adjustment in cases where the child is in the custody of the department;
(M) Whether the parent has demonstrated a sense of urgency in establishing paternity of
the child, seeking custody of the child, or addressing the circumstance, conduct, or
conditions that made an award of custody unsafe and not in the child’s best interest;
(N) Whether the parent, or other person residing with or frequenting the home of the parent,
has shown brutality or physical, sexual, emotional, or psychological abuse or neglect
toward the child or any other child or adult;
(O) Whether the parent has ever provided safe and stable care for the child or any other
child;
(P) Whether the parent has demonstrated an understanding of the basic and specific needs
required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to creating and
maintaining a home that meets the child’s basic and specific needs and in which the child
can thrive;
(R) Whether the physical environment of the parent’s home is healthy and safe for the
child;
(S) Whether the parent has consistently provided more than token financial support for the
child; and
(T) Whether the mental or emotional fitness of the parent would be detrimental to the child
or prevent the parent from consistently and effectively providing safe and stable care and
supervision of the child.
Tenn. Code Ann. § 36-1-113(k) (2021).
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analyzes whether the parent has made such an adjustment of his or her circumstances to
make it safe for the child to return to the parent’s home and includes in that consideration
the parent’s criminal activity and substance abuse. Factor (2) in the relevant best interest
factors is similar to subsection (K) because they both involve whether the parent has taken
advantage of provided services available to them in an effort to adjust his or her
circumstances. Similarly, factors (3) and (4) are included in subsections (D) and (E), which
consider the parent’s visitation and relationship with the child; factor (5) is virtually
identical to subsection (B) and both involve the effect on the child if there is a change in
caretaker or physical environment; factor (6) is included within subsection (N), both of
which consider whether the parent or other individual in the home has committed brutality,
abuse, or neglect toward the child at issue or another child in the home; factor (8) includes
the same considerations as subsection (T) given that both consider the parent’s mental and
emotional fitness to care for the child; and factor (9) is similar to subsection (S) in that they
both analyze child support contributions by the parent.
We note that the Juvenile Court recognized that the relevant factors were included
in the new factors and included in its written order an analysis of the relevant factors, in
addition to several of the new factors. The relevant factors in effect at the time the
termination petition was filed allow for the trial court to consider other relevant factors
outside the statutorily enumerated factors. See Tenn. Code Ann. § 36-1-113(i) (Supp.
2020) (includes “a set of non-exclusive factors” for courts to consider). Although the
Juvenile Court initially considered the incorrect statute in its oral ruling, its analysis in the
written judgment included consideration of the correct best interest factors after it was
brought to the court’s attention at the conclusion of trial, in addition to some of the new
best interest factors that were enacted prior to trial. Based on the foregoing, we hold that
the Juvenile Court properly considered the correct best interest factors in its analysis and
hold that there is no reversible error with the Juvenile Court’s best interest analysis.
Although Mother has not included an argument concerning the facts pertaining to
the best interest analysis, we will nonetheless address whether the Juvenile Court erred by
finding by clear and convincing evidence that termination of Mother’s parental rights was
in the Children’s best interest. With regard to making a determination concerning a child’s
best interest, our Supreme Court has instructed:
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at 861). “After making
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the underlying factual findings, the trial court should then consider the
combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interest[s].”
Id. When considering these statutory factors, courts must remember that
“[t]he child’s best interests [are] viewed from the child’s, rather than the
parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. Indeed, “[a]
focus on the perspective of the child is the common theme” evident in all of
the statutory factors. Id. “[W]hen the best interests of the child and those of
the adults are in conflict, such conflict shall always be resolved to favor the
rights and the best interests of the child. . . .” Tenn. Code Ann. § 36-1-101(d)
(2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending 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).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In making its decision, the Juvenile Court considered the relevant statutory best
interest factors that were in effect when the petition was filed, as well as some of the new
factors that had recently been enacted. The Juvenile Court found that Mother had not put
the needs of the Children above her own and had not made an adjustment to her conduct
and circumstances to demonstrate a lasting change, despite reasonable efforts by DCS to
assist Mother. The Juvenile Court found that Mother had not completed the steps on her
permanency plans or resolved the issues that caused the Children to be placed into foster
care, such that it would be safe for the Children to return to her care. Although Mother
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testified that she had completed the recommendations from her second alcohol and drug
assessment, the Juvenile Court found Mother’s testimony not to be credible and found that
she had not complied with the permanency plans. Around the time of trial, Mother had
told DCS that she had been attending mental health therapy; however, the provider with
whom Mother claimed to be participating had no record of her ever attending treatment at
its facility. The Juvenile Court further found that Mother was about to be evicted from her
home, was living with a dangerous criminal, and abused illegal drugs. The Juvenile Court
found that Mother was in the same position she was when the Children entered foster care.
Due to the time Mother has been given to remedy her situation and has failed to do so, the
Juvenile Court found that a lasting adjustment by Mother did not appear possible.
Mother had visited with the Children, participating in PCIT with the Children for
over a year. Although the Juvenile Court acknowledged some form of relationship between
Mother and the Children, it found that Mother did not have a meaningful parent-child
relationship with the Children due to her inability to parent the Children in an appropriate
manner and her “lack of regard concerning her parenting skills.” The Juvenile Court found
that Mother and the Children did not have “a healthy parental attachment,” which is
supported by Mr. Ramirez’s testimony that he had concerns with Mother’s behavior during
visits with the Children and the testimony of Mr. Akers that Mother was more of a peer to
the Children than a parent and that he would have concerns with the Children’s safety and
supervision if they were placed in Mother’s custody. Despite the Children being in foster
care for approximately two-and-a-half years, the Juvenile Court found that Mother had still
failed to demonstrate “an ability to safely provide for the care and supervision” of the
Children.
In contrast, the Children were bonded with their foster parents, with whom they had
resided for approximately two years. During that time, the foster parents had provided
them with a loving home, cared for them, and ensured their needs were met. The Juvenile
Court found that the foster parents wish to adopt the Children and could give them “stability
and continuity.” The Juvenile Court found that changing the Children’s caretaker or
physical environment would have an “extreme negative effect” on them. In its oral ruling,
the Juvenile Court found that changing the Children’s current physical environment would
be “devastating” to their emotional and psychological conditions.
The record does not preponderate against any of these findings of fact by the
Juvenile Court. We find and hold by clear and convincing evidence, as did the Juvenile
Court, that termination of Mother’s parental rights is in the Children’s best interest.
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Conclusion
The judgment of the Trial Court terminating the parental rights of Atiya L. is
affirmed as modified, and this cause is remanded to the Trial Court for collection of the
costs assessed below. The costs on appeal are assessed against the appellant, Atiya L., and
her surety, if any.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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