In Re Joseph L. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 24, 2012 Session
IN RE JOSEPH L.
Appeal from the Juvenile Court for Davidson County
No. 2009107 Betty K. Adams Green, Judge
No. M2011-02058-COA-R3-PT - June 25, 2012
Mother challenges the trial court’s termination of her parental rights. She asserts that the
Department of Children’s Services failed to make reasonable efforts to find a suitable relative
placement. We find no merit in Mother’s arguments and affirm the decision of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.
and R ICHARD H. D INKINS, JJ., joined.
Lydle Willis Jones, Nashville, Tennessee, for the appellant, Samantha L.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Douglas Earl Dimond and Joshua Davis Baker, for the appellee, State of Tennessee,
Department of Children’s Services.
OPINION
F ACTUAL AND P ROCEDURAL B ACKGROUND
Samantha L. (“Mother”) gave birth to Joseph L. on November 2, 2006. In early
January 2009, the Department of Children’s Services (“DCS”) filed a petition in juvenile
court for emergency removal. According to the petition, DCS received a referral that Joseph
(age 2) and a sibling (age 6) were suffering environmental neglect and had been seen
wandering in the street. The two children were living with their maternal grandmother,
Sherry J.; Mother had gone to jail a few weeks earlier, and the children’s father was in
prison. DCS found deplorable conditions in the home, including a roof that had caved in;
animal feces on floors, clothing, and bedding; a dead animal in the yard; and a strong rotten
odor in the home. The children were not dressed appropriately and were hungry and dirty.
The maternal grandmother was in an infirm physical state and unable to care for the children.
DCS also interviewed Mother in jail.
DCS determined that there was no less drastic alternative to the removal of Joseph to
state custody. On January 7, 2009, the juvenile court entered an emergency protective order
placing Joseph in temporary state custody and appointing a guardian ad litem for him; DCS
petitioned to have Joseph declared dependent and neglected. After a preliminary hearing on
January 26, 2009, the court determined that Joseph should be placed in the custody of Cedric
C. (Joseph’s stepfather) and Yvonne C. (Cedric’s mother).
In June 2009, the guardian ad litem filed a petition for dependency and neglect and
emergency removal. Cedric C. had moved out of the home where his children and Joseph
lived, leaving Yvonne C. to care for four children on her own. Yvonne C. informed DCS
that she was no longer able to care for Joseph. The juvenile court issued an emergency
protective order placing Joseph in DCS custody.
On June 24, 2009, Mother pled guilty to aggravated assault and was sentenced to six
years in prison.
After a hearing on July 7, 2009, the juvenile court adjudicated Joseph dependent and
neglected based upon a finding of severe environmental neglect. The court found that DCS
had “made reasonable efforts to place the child with a relative and/or friend without success,”
and Joseph was to remain in DCS custody. Mother was to have visitation with Joseph once
a month during her incarceration.
DCS entered into a permanency plan with Mother on October 7, 2009,1 with
alternative goals of (1) return to parent or (2) exit DCS custody to live with a relative. At
that time, DCS had placed Joseph with Clechette W., a foster parent. With respect to the
primary goal of returning Joseph to Mother, the permanency plan required Mother to perform
numerous actions, including: demonstrating anger management skills, participating in home
maker training after her release from incarceration, continuing and completing a 12-step
program, protecting Joseph from maltreatment, resolving all of her legal issues, seeking legal
employment and/or financial assistance, finding safe and stable housing, using public
transportation until able to get a car, completing a parenting assessment while incarcerated
1
According to the testimony of a DCS case manager, DCS also entered into a permanency plan with
Mother on July 27, 2009. This plan does not, however, appear in the record on appeal, which includes only
the permanency plans dated October 7, 2009, and April 21, 2010.
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and following the recommendations, refraining from illegal activity after release from
incarceration, and continuing to work on job training and job search. As to the goal of
relative placement, the permanency plan required Mother to provide DCS with the names of
family members who might be able to care for Joseph. Mother signed the permanency plan,
and it was approved by the court.
DCS developed another permanency plan in April 2010 with alternative goals of
return to parent or adoption. Joseph remained in the custody of Clechette W. at that time.
Mother objected to the goal of adoption. At a permanency hearing in May 2010, the court
approved the permanency plan.
DCS filed a petition for termination of parental rights against Mother on June 18,
2
2010. With respect to Mother, the petition alleged the following grounds for termination
of her parental rights: abandonment by an incarcerated parent pursuant to Tenn. Code Ann.
§§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), substantial non-compliance with permanency plan
pursuant to Tenn. Code Ann. § 36-1-113(g)(2), and persistence of conditions pursuant to
Tenn. Code Ann. § 36-1-113(g)(3).
Sherry J., Joseph’s maternal grandmother, filed a petition for temporary custody on
July 20, 2010. She alleged that she had been very ill at the time when Joseph was removed
from her home and that she had subsequently been hospitalized in a critical care unit. Sherry
J. further alleged that she had now recovered from her illness and was able and willing to
take custody of Joseph.
Hearing
The court held a hearing on the petition for termination and on Sherry J.’s petition for
custody on October 25, 2010, and April 29, 2011.
Vickie Green, the DCS case manager for Joseph since August 28, 2010, was the first
witness. She testified that Mother had not provided support for Joseph since he had been in
custody. Ms. Green testified about the requirements of the permanency plans entered into
with Mother. Although Mother had completed some of the tasks in the permanency plans,
including obtaining her GED and taking domestic violence classes, she had not been able to
accomplish many of the requirements due to her incarceration. According to Ms. Green,
Mother was scheduled to remain in jail for “at least two more years.”
2
Although the petition also listed as defendants Joseph’s legal father and an alleged father, this
appeal involves only Mother.
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Ms. Green testified about her observations of Joseph’s interactions with Mother and
with Sherry J. during the child’s monthly visits with Mother at the jail. She stated that Joseph
would hug Mother and then run around and go “under the chairs, over the chairs, shutting
doors.” When Joseph saw Sherry J. in court, Ms. Green thought that he did not seem to know
his grandmother. Ms. Green “did not observe a bond between the birth mother and Joseph
and the grandmother and Joseph.” She also testified about Joseph’s relationship with
Clechette W., his foster mother.
When Ms. Green became case manager for Joseph, the termination petition had
already been filed, so she was not involved in looking for possible relative placements. She
had not been to visit Sherry J. in her home to evaluate the living conditions. Ms. Green
admitted that the monthly visitations with siblings had not occurred since she had been the
case manager because a previous case worker had failed to document these on the transfer
summary. According to Ms. Green, Sherry J. had called her twice inquiring about Joseph or
requesting visitation.
Clechette W., the foster mother, testified about Joseph’s behavior and well-being in
her home. Mother was the next witness. She testified that she had been incarcerated since
Joseph came into DCS custody. Prior to her incarceration, Mother and Joseph (and some
siblings) lived with Mother’s mother, Sherry J. Mother acknowledged that Sherry J. was ill
at the time when Mother was taken to jail but had since recovered and had moved to another
place. Mother wanted Sherry J. to have custody of Joseph. She stated that she had suggested
Sherry J., as well as Patricia L. (paternal grandmother), as a possible placement to DCS.
As to her incarceration, Mother testified that she was sentenced to six years and had
served 22 months at the time of the October 2010 hearing. It was her understanding that she
would be eligible for release in October 2011; she had previously been denied parole.
Mother stated that, at present, she had no ability to provide financial support for Joseph.
Mother testified that she had completed a number of classes while incarcerated, including
classes on parenting, anger management, vocational office education, job readiness, and a
twelve-step program. She had obtained her GED and tutored those working on their GED;
she was a facilitator for a job readiness class.
Mother testified about Sherry J.’s relationship with Joseph. She stated that there was
a strong bond between the two of them and that she supported Sherry J.’s petition for
custody. She was satisfied that Sherry J. had corrected the environmental concerns that were
present when Joseph was taken into DCS custody.
Mother acknowledged that she was incarcerated because she pled guilty to aggravated
assault, a charge that arose when Mother used a box cutter to cut a woman across the
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abdomen and on her chest, legs, and arm. Mother testified that she had an argument with the
woman over Mother’s children on September 27, 2008.
According to Mother, the conditions described by DCS when they took Joseph from
Sherry J.’s home developed during the approximately two weeks after Mother was taken to
jail. Because of Sherry J.’s declining health, Sherry J. and Mother had contacted Yvonne C.
after Mother’s incarceration to come get her three grandchildren. This still left Joseph and
a sibling in the home with Sherry J. Mother was unable to find anyone to take these two
children out of Sherry J.’s home.
Patricia L., Joseph’s paternal grandmother, testified that, if the court awarded custody
to Sherry J., she would be available as backup support. She testified in support of Sherry J.’s
petition for custody and stated that Sherry J.’s current home was appropriate for young
children.
Sherry J. was the final witness at the October 2010 hearing. She testified that she was
hospitalized the same day that Joseph was removed from her home and did not remember
much from that period of time. After about six months, she felt she had fully recovered. She
did not remember the condition of the home at the time when she was hospitalized and the
children were removed. Sherry J. asked the court to award custody of Joseph to her and
stated that she was able to care for him and understood that he had special needs. She felt
that she had a strong bond with Joseph. When she last saw him, he ran over to her with his
arms out.
Sherry J. testified that, in August or September 2009, her health was back to about
normal. She stated that she called DCS several times but admitted that she had not filed a
petition for custody until July 2010.
The court heard additional testimony at the hearing in April 2011. Nicole Dillard, the
case manager for Joseph from June 2009,3 testified that during her incarceration, Mother had
not been able to substantially comply with the parenting plan requirements that she provide
a home or support. Ms. Dillard stated that Joseph had been placed in a foster home in June
2009 (with Clechette W.) but had to be moved at the end of 2010 to a temporary foster home.
In January 2011, Joseph was placed with Mr. [Jackie] M.. According to Ms. Dillard, Joseph
was thriving in the Jackie M. home; Jackie M. was addressing Joseph’s behavioral problems
and problems at school. Ms. Dillard opined that it was in Joseph’s best interest to remain in
the home with Jackie M..
3
Ms. Green took over for a period of time when Ms. Dillard was on leave.
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As to Sherry J.’s petition for custody, Ms. Dillard testified, “I don’t think Ms. [J.] is
a good choice for Joe.” She had observed that Joseph did not want Sherry J. to touch him,
and she did not think there was a bond there. As to Joseph’s relationship with Mother, Ms.
Dillard stated that Joseph exhibited defiant behavior after visits with Mother, and that during
the visits, the child did not show any respect for Mother. He would spit on her, kick her, and
tell her to shut up and leave him alone.
As to DCS’s consideration of Sherry J. as a relative placement, Ms. Dillard stated that
the department explained to Mother that they were not considering Sherry J. due to the
conditions that necessitated removal of the child from her home. Ms. Dillard admitted
knowing that Sherry J. had since recovered and that she had moved to another residence. No
one from DCS visited the new home, however, because of the conditions in the home from
which the child was removed. Ms. Dillard testified that someone from DCS had been to
Sherry J.’s home prior to the removal of the children and given her information about getting
the roof fixed and addressing the filth in the home and the lack of cleanliness of the children,
“but she did not take any action.” Ms. Dillard opined that DCS had exercised reasonable
efforts to find a suitable family member to take Joseph.
Jackie M., the current foster parent, testified about Joseph’s time in his home and the
progress made during those three months.
Sherry J. testified again at the second hearing. She introduced pictures of her current
home and described the conditions there. She admitted that, prior to the removal of Joseph
from her home, she had been ill for four or five weeks. Sherry J. stated that she would have
visited Joseph more if DCS had allowed her to do so. She admitted that she had not filed a
petition for custody for 17 months after her recovery, “until after they told me he might be
adopted. I thought he was alright where he was.”
Roberto M., Joseph’s maternal grandfather, who was currently residing with Sherry
J., also testified in support of Sherry J.’s petition for custody.
S TANDARDS FOR T ERMINATION OF P ARENTAL R IGHTS
A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Consequently, the state may interfere with parental rights only if there is
a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). The termination of a person’s parental rights “has the legal effect of
reducing the parent to the role of a complete stranger.” In re W.B., IV, No. M2004-00999-
COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005). Pursuant to Tenn.
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Code Ann. § 36-1-113(l)(1), “[a]n order terminating parental rights shall have the effect of
severing forever all legal rights and obligations of the parent or guardian of the child against
whom the order of termination is entered and of the child who is the subject of the petition
to that parent or guardian.”
Tennessee’s termination statutes identify “those situations in which the state’s interest
in the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re W.B., 2005 WL
1021618, at *7 (citing Tenn. Code Ann. § 36-1-113(g)). To support the termination of
parental rights, petitioners must prove both the existence of one of the statutory grounds for
termination and that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-
113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). A trial court is only required to
find one statutory ground in order to terminate parental rights. In re D.L.B., 118 S.W.3d
360, 367 (Tenn. 2003).
Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769; In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry must be
established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth of
the facts asserted is highly probable, and eliminates any serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted). Such evidence “produces in a fact-finder’s
mind a firm belief or conviction regarding the truth of the facts sought to be established.”
Id.
In light of the heightened standard of proof in these cases, a reviewing court must
adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). Id. at 654. As
to the trial court’s findings of fact, our review is de novo with a presumption of correctness
unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id.
We must then determine whether the facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements necessary to
terminate parental rights. Id.
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A NALYSIS
1.
In challenging the trial court’s decision to terminate her parental rights, Mother asserts
that DCS failed to fulfill its statutory obligation to make reasonable efforts to find a less
drastic alternative to the child remaining in DCS custody. She specifically argues that DCS
should have placed Joseph with Sherry J., the child’s maternal grandmother, thereby
obviating the need for termination of parental rights.
DCS acknowledges that Mother suggested Sherry J. as a relative placement and that
the department did not investigate Sherry J.’s new home or her fitness to take care of Joseph.
DCS did not consider Sherry J. a suitable placement in light of the deplorable conditions
found in her home at the time of Joseph’s initial removal and her failure to take steps to
protect Joseph when she became ill. It is DCS’s position that its statutory duty to investigate
appropriate relative placements is not a continuing duty, but a duty applicable during the first
thirty days after a child’s removal from the home.
Tennessee Code Annotated § 37-2-403 contains the relevant statutory provisions:
(a) (1) (A) Within thirty (30) days of the date of foster care placement, an
agency shall prepare a plan for each child in its foster care. Such plan shall
include a goal for each child of:
(i) Return of the child to parent;
(ii) Permanent placement of the child with a fit and willing relative or relatives
of the child;
(iii) Adoption, giving appropriate consideration to § 36-1-115(g) when
applicable;
(iv) Permanent guardianship; or
(iv) A planned permanent living arrangement.
...
(d) Whenever a child is removed from such child’s home and placed in the
department’s custody, the department shall seek to place the child with a fit
and willing relative if such placement provides for the safety and is in the best
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interest of the child. Notwithstanding any provision of this section or any
other law to the contrary, whenever return of a child to such child’s parent is
determined not to be in the best interest of the child, then such relative with
whom the child has been placed shall be given priority for permanent
placement or adoption of the child prior to pursuing adoptive placement of
such child with a non-relative.
(Emphasis added). These provisions establish a preference for family placement over
adoption by non-relatives, but only where consistent with the safety and best interest of the
child. See State Dept. of Human Serv. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990); In re
O.J.B., No. W2009-00782-COA-R3-PT, 2009 WL 3570901, at *9 (Tenn. Ct. App. Nov. 2,
2009); In re S.B., M1999-00140-COA-R3-CV, 2000 WL 575934, at *4 (Tenn. Ct. App. May
12, 2000). This court has previously interpreted the quoted provisions of Tenn. Code Ann.
§ 37-2-403 as addressing “placement immediately after removal from the home and a
preference for adoption by relatives with whom such initial placement has been made.” In
re S.B., 2000 WL 575934, at *4; see also In re Adoption of A.K.S.R., 71 S.W.3d 715, 718
(Tenn. Ct. App. 2001).
In this case, Joseph was initially placed with Cedric and Yvonne C., blood relatives
of his siblings. Thus, DCS did choose a relative placement for Joseph when he first came
into custody. After about six months, however, Yvonne C. informed DCS that she could no
longer care for Joseph. Joseph was then placed with Clechette W., a foster parent. By the
time of the second hearing, however, Joseph had been placed with another foster parent, Mr.
Jackie M.. Mother asserts that DCS should have considered Sherry J. as a possible relative
placement each time there was a disruption in foster placements. As stated above, the
statutory preference for relative placement applies only during the period immediately
following removal from the home. Once that period has ended, DCS is no longer required
to give preference to a relative placement.
Furthermore, under the circumstances of this case, we cannot agree with Mother that
DCS should have investigated Sherry J. as a possible relative placement once she had
recovered from her illness. Sherry J. testified that it took about six months for her to return
to good health; thus, she was not available as a placement option during the period
immediately following Joseph’s removal from the home. Moreover, Sherry J. was
responsible for Joseph’s care at the time of his removal for environmental neglect. Although
she emphasizes that her failure to ensure Joseph’s safety at that time resulted from a serious
illness, DCS offered proof that Sherry J. had been contacted prior to the removal about
improving the conditions in her home and that she took no action. At the very least, Sherry
J. could have found someone else to care for the child; as a last resort, she could have
contacted DCS to provide temporary care for him. Furthermore, Sherry J. waited 17 months
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after her recovery before she filed a petition for custody. She testified that she thought
Joseph was “alright where he was” and petitioned for custody only when she heard the child
might be adopted.
Finally, this court has repeatedly held that the failure to place a child with a relative
is not a basis to defeat termination. In re Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App.
2010); In re Deashon A.C., No. E2009-01633-COA-R3-PT, 2010 WL 1241555, at *8 (Tenn.
Ct. App. Mar. 31, 2010); In re K.L.D.R., No. M2008-00897-COA-R3-PT, 2009 WL
1138130, at *8 (Tenn. Ct. App. Apr. 27, 2009). Such custody concerns should be raised in
the dependency and neglect proceedings.4
2.
Mother argues that the trial court erred in finding that grounds exist to support the
termination of her parental rights.
A party seeking the termination of parental rights must prove two elements by clear
and convincing evidence: the existence of one of the statutory grounds for termination and
that termination is in the child’s best interest. In re M.L.P., 281 S.W.3d 387, 392 (Tenn.
2009); In re Valentine, 79 S.W.3d at 546; Tenn. Code Ann. § 36-1-113(c). A trial court is
only required to find one statutory ground in order to terminate parental rights. In re D.L.B.,
118 S.W.3d at 367. In this case, the trial court ordered that Mother’s parental rights be
terminated on three statutory grounds: abandonment, substantial noncompliance with the
permanency plans, and the persistence of conditions that prevent the return of the children.
Pursuant to Tenn. Code Ann. §§ 36-6-113(g)(1) and 36-1-102(1)(A)(iv), the trial court
found that Mother had abandoned Joseph. The definition of “abandonment” in Tenn. Code
Ann. § 36-1-102(1)(A)(iv) is satisfied if a parent is incarcerated at the time of the institution
of an action to declare a child to be abandoned and the parent “has engaged in conduct prior
to incarceration that exhibits a wanton disregard for the welfare of the child.”5 This court has
“repeatedly held that probation violations, repeated incarceration, criminal behavior,
4
Mother includes in her brief an argument challenging the trial court’s denial of Sherry J.’s petition
for custody. Sherry J., however, did not appeal that decision. Mother lacks standing to appeal the trial
court’s decision regarding Sherry J.’s separate petition for custody. See In re Noel B.F., No. M2010-02343-
COA-R3-PT, 2011 WL 3610427, at *8 (Tenn. Ct. App. Aug. 16, 2011). Moreover, the reasons discussed
above support the trial court’s denial of Sherry J.’s petition.
5
Although the court’s order contains some language suggesting that Mother also abandoned Joseph
by failing to pay support, we decline to consider that ground since there is no evidence that Mother’s failure
to pay support while in prison was willful.
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substance abuse, and the failure to provide adequate support or supervision for a child can,
alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare
of a child.” In re Audrey S., 182 S.W.3d 838, 867-68 (Tenn. Ct. App. 2005). An
incarcerated parent is “severely compromise[d]” in her ability to perform parental duties. Id.
at 866. Thus, a “parent’s decision to engage in conduct that carries with it the risk of
incarceration is itself indicative that the parent may not be fit to care for the child.” Id.
In this case, there is no dispute that Mother was incarcerated from the time of Joseph’s
removal from the home until after DCS filed the petition for termination of parental rights.
In addition to making findings about the appalling conditions found in Sherry J.’s home at
the time of Joseph’s removal, the trial court made the following pertinent factual findings
regarding Mother:
When [Mother] was interviewed by the department case manager, she could
not give an adequate explanation as to why she had left her children with her
mother, . . . whom she had known was not able to care for the children. . . .
[Mother] has been incarcerated since December 15, 2008, having been
convicted on June 24, 2009 for aggravated assault and sentenced to six years
imprisonment. [Mother] had gotten into a fight with a lady and cut her with a
knife.
The evidence does not preponderate against these findings, and Mother’s brief does not
include any arguments on the “wanton disregard” ground. Clear and convincing evidence
supports the trial court’s finding that Mother’s conduct prior to incarceration constituted a
wanton disregard for Joseph’s welfare.
The trial court also found that Mother failed to substantially comply with the
provisions of the permanency plan, pursuant to Tenn. Code Ann. § 36-1-113(g)(2), and that
conditions still existed that prevented the return of the children to Mother, pursuant to Tenn.
Code Ann. § 36-1-113(g)(3). In addressing these grounds, Mother argues that she complied
with the permanency plan requirements as much as possible given her incarceration, that any
noncompliance was not willful, and that the conditions that resulted in Joseph’s removal had
been cured since Sherry J. had recovered and could take care of him. With respect to the
latter point, we have already discussed the issue of Sherry J.’s availability as a family
placement.
Mother’s position boils down to her assertion that her incarceration prevented her
from fully complying with the permanency plan and remedying the problems that needed to
be addressed. It appears that Mother did everything within her power while incarcerated to
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accomplish the actions required of her by the permanency plans. The fact remains, however,
that her continued incarceration prevented her from obtaining safe housing and a source of
income to provide for Joseph. To prove grounds for termination pursuant to Tenn. Code
Ann. § 36-1-113(g)(2), DCS was required to demonstrate that: “(1) the requirements of the
permanency plan were reasonable and related to remedying the conditions that caused the
child to be removed from the parent’s custody in the first place, and (2) the parent’s
noncompliance was substantial in light of the degree of noncompliance and the importance
of the particular requirement that has not been met.” State Dept. of Children’s Serv. v.
T.M.B.K., 197 S.W.3d 282, 293 (Tenn. Ct. App. 2006). Mother does not challenge the
requirements of the permanency plan or deny the fact that, due to her incarceration, she failed
to comply with important requirements. She does not cite any authority, and we know of
none, for the idea that a parent’s substantial noncompliance with a permanency plan must be
willful to justify termination of parental rights on that basis.6
The evidence clearly and convincingly establishes the existence of the three statutory
grounds found by the trial court for termination of Mother’s parental rights.
3.
DCS was also required to prove by clear and convincing evidence that termination “is
in the best interest of the child.” Tenn. Code Ann. § 36-1-113(c)(2); In re Valentine, 79
S.W.3d at 546. Tennessee Code Annotated § 36-1-113(i) lists factors to be considered by
the court in making its best interest determination:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such duration
of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
6
We reject Mother’s suggestion that, by offering Sherry J. as a suitable placement, Mother complied
with the permanency plan requirement of providing a stable home. The permanency plan requirement at
issue addressed Mother’s ability to provide for the child herself in furtherance of the goal of reunification.
And, as discussed above, DCS did not err in rejecting Sherry J. as a suitable placement.
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(4) Whether a meaningful relationship has otherwise been established between
the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or
guardian, has shown brutality, physical, sexual, emotional or psychological
abuse, or neglect toward the child, or another child or adult in the family or
household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol or controlled substances as may render the parent
or guardian consistently unable to care for the child in a safe and stable
manner;
(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.
Ascertaining whether termination is in a child’s best interest is necessarily a fact-
intensive inquiry. In re Giorgianna H., 205 S.W.3d 508, 523 (Tenn. Ct. App. 2006).
Moreover, the best interest analysis “does not call for a rote examination of each of Tenn.
Code Ann. § 36-1-113(i)’s nine factors and then a determination of whether the sum of the
factors tips in favor of or against the parent.” In re Audrey S., 182 S.W.3d at 878. Rather,
“[t]he relevancy and weight to be given each factor depends on the unique facts of each
case.” Id.
The trial court made specific findings of fact to support its conclusion that termination
of Mother’s parental rights was in the child’s best interest:
1. [Mother has] not made an adjustment of circumstances, conduct or
conditions as to make it safe and in the child’s best interest to be in the home
of the parent[ ].
...
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3. A meaningful relationship has not otherwise been established between the
child and [Mother] . . . .
4. [Mother has] not paid child support consistently with the child support
guidelines promulgated by the Department pursuant to Tenn. Code Ann. § 36-
5-101.
5. [Mother has] shown little or no interest in the welfare of the child.
6. The child is placed in a foster home that wishes to adopt the child and the
child has a strong bond with the foster parents.
The evidence does not preponderate against these findings. Other than pointing to the
availability of Sherry J. as a relative placement, an argument addressed fully above, Mother
asserts that she is now out of jail, living in a stable home, and in a position to take care of
Joseph. There is no evidence in the record, however, to support these assertions. This court
must make its determinations based upon the evidence of record. Tenn. R. App. P. 13.
Mother also argues generally, without any supporting evidence, that changing
caretakers and homes is likely to have an adverse effect on a child’s emotional and
psychological health. Although the fact that DCS had to move Joseph from one foster home,
to a temporary placement, and then to the present foster home is cause for concern, the issue
here is whether termination of Mother’s parental rights was in Joseph’s best interest. At the
time when the trial court made its decision, Joseph had been in the same foster home for
about six months and, according to all of the evidence presented, had bonded with the foster
family and was doing well.
Clear and convincing evidence supports the trial court’s determination that
termination of Mother’s parental rights was in Joseph’s best interest.
C ONCLUSION
We affirm the judgment of the trial court. Costs of appeal are assessed against
Mother, and execution may issue if necessary.
______________________________
ANDY D. BENNETT, JUDGE
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