In Re Anya G. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 30, 2014
IN RE ANYA G.
Appeal from the Juvenile Court for Hamilton County
No. 253263 Robert D. Philyaw, Judge
No. E2013-02595-COA-R3-PT-FILED-AUGUST 27, 2014
This is a termination of parental rights case, focusing on Anya G. (“the Child”), the minor
child of Melisa G. (“Mother”). In October 2011, temporary custody of the Child was granted
to the Tennessee Department of Children’s Services (“DCS”), and the Child was placed in
foster care. DCS subsequently filed a petition to terminate the parental rights of Mother and
the Child’s father, Michael G., on December 27, 2012.1 The petition alleged as statutory
grounds for termination abandonment by failure to visit, abandonment by an incarcerated
parent who exhibited wanton disregard for the welfare of the child prior to incarceration, and
substantial noncompliance with the permanency plans. Following a bench trial, the trial
court granted the petition as to Mother upon finding that DCS had proven by clear and
convincing evidence the grounds of (1) abandonment by engaging in conduct prior to her
incarceration that exhibited a wanton disregard for the welfare of the child and (2) substantial
noncompliance with the permanency plans. The court also found clear and convincing
evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother
has appealed. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.
Berry Foster, Chattanooga, Tennessee, for the appellant, Melisa G.
Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
1
Michael G. is not a party to this appeal.
Children’s Services.
Galen Pickard, Chattanooga, Tennessee, Guardian Ad Litem.
OPINION
I. Factual and Procedural Background
Mother is a parent of two minor children: Samantha M., now age sixteen, and Anya
G., now age four.2 On August 18, 2011, Mother and Samantha were involved in an argument
regarding Mother’s boyfriend. Mother took the Child, who was two years old at the time,
and placed the Child in Mother’s vehicle without a car seat. Mother indicated that she was
upset and was leaving to “cool off.” Fearing for her sister’s safety, Samantha tried to stop
Mother from departing. During the incident, Mother drove over Samantha’s legs with her
vehicle. Consequently, Mother was arrested and charged with reckless endangerment.
Mother was placed on probation, and DCS began working with Mother regarding both
children. Subsequently, a referral was made with regard to Samantha’s cutting herself. Upon
the DCS workers’ interview of Samantha, the daughter allegedly disclosed that Mother was
using drugs such as crack cocaine in the home and prostituting herself. Samantha informed
DCS that she was the primary caretaker for the Child. Samantha also disclosed that Mother’s
boyfriend, T.B., was selling illegal drugs from Mother’s home.
DCS visited Mother’s home on October 3, 2011, finding it to be dirty and unsuitable.
Mother failed a drug screen administered by DCS that day, testing positive for both crack
cocaine and marijuana. Upon the filing of a petition, temporary custody of the children was
awarded to DCS on October 6, 2011. The children were subsequently adjudicated dependent
and neglected on December 29, 2011. Mother was arrested on December 7, 2011, and again
on April 22, 2012; June 16, 2012; and July 12, 2012. She was incarcerated at the time the
petition to terminate parental rights was filed on December 27, 2012.
DCS alleged in its petition, inter alia, that Mother had engaged in mere token
visitation with the Child prior to her incarceration, thereby abandoning the Child pursuant
to Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2014). The petition further alleged that
Mother had abandoned the Child by engaging in conduct prior to her incarceration that
exhibited a wanton disregard for the welfare of the child, also pursuant to Tennessee Code
Annotated § 36-1-102(1)(A)(iv). As an additional ground for termination, the petition
alleged that Mother had failed to substantially comply with the terms of her permanency
2
Mother’s parental rights regarding Samantha are not at issue in this proceeding.
-2-
plans, pursuant to Tennessee Code Annotated § 36-1-113(g)(2). Finally, the petition alleged
that termination of Mother’s parental rights was in the Child’s best interest.
The trial court terminated Michael G.’s parental rights on June 4, 2013. The trial
regarding Mother’s parental rights was conducted over three non-consecutive days in August,
September, and October 2013. Although Mother testified on the first day of trial, she failed
to appear for the subsequent dates. Mother’s attorney informed the court at the beginning
of the second day of trial that he had received a message from Mother stating that she was
unable to appear due to a medical emergency with a family member. The DCS worker
subsequently stated that she had become aware that warrants were recently filed against
Mother. The hearing proceeded in Mother’s absence.
Following the trial, the court entered an order, finding that Mother’s demeanor in
court was “that everything was someone else’s fault and she smiled and smirked in a way not
appropriate for someone in her position as a parent facing the loss of her children.” The
court’s order, inter alia, states:
Karen Tittsworth, DCS worker, testified of the mother’s hostile attitude,
profanity, and the great lengths to which she would go to be deceptive while
this case was pending. Anya came into foster care in October 2011 and Ms.
Tittsworth has had the case continually since that time. Mother’s goals were
to address her addiction, particularly to cocaine, and achieve stable housing
and employment. Although she participated in the Transformation Project,
testimony showed she was dishonest and deceptive regarding her drug screens
and continued to test positive during the pendency of this case.
Partnership worker Yashica Baker likewise testified of the mother’s
hostility and refusal to submit to drug screens. [Mother] continued to live with
her mother even though she and her mother have a volatile relationship.
Mother was diagnosed with bi-polar disorder but did not comply with efforts
to arrange a mental health assessment.
Mother has never shown proof of employment or any signs of forward
progress on the goals on her plan of care. The DCS worker stated they were
no closer to returning Anya at this or any other point than when she first came
into care. Any meaningful or consistent parenting time was hindered by
Mother’s frequent periods of incarceration and it is believed she currently has
two (2) outstanding warrants. [Mother] continued to maintain a relationship
with a man who has a lengthy criminal record and who was, in some part,
-3-
involved in the incident which led to the removal of the children from the
mother’s care.
From all of which the Court found the State carried the burden of proof
by presenting clear and convincing proof that the mother abandoned Anya [G.]
by incarceration, was in substantial non-compliance with the goals of the
permanency plan, and that it was in the best interest of the child for the
parental rights of the mother to be terminated.
The foster mother, [P.G.], testified of Anya’s progress since coming
into custody from the constant screaming, lack of communication skills, and
inappropriate self-touching. Anya is now in a pre-kindergarten program doing
well. She has some aggressive behaviors and suffers from speech problems
but does not exhibit the former behaviors since she has not seen her mother for
an extended period of time. [P.G.] and her husband are planning to proceed
with adoption as soon as that becomes an option.
Following this initial order, the trial court entered a Termination of Parental Rights
and Final Decree of Complete Guardianship, terminating Mother’s parental rights to the
Child. This decree erroneously lists the ground of persistent conditions, pursuant to
Tennessee Code Annotated § 36-1-113(g)(3), as an additional basis for termination. Mother
timely appealed. While the appeal was pending, DCS filed a motion seeking leave of court
to have a corrected order entered. Mother’s counsel consented to this action. This Court
then remanded the matter to the trial court for entry of a corrected order.
The trial court thereafter entered an Amended Termination of Parental Rights and
Final Decree of Complete Guardianship, which decree states in pertinent part:
3. Grounds for the termination of the parental rights of Melisa [G.] to the
child, Anya [G.] exist, in that:
(A) Respondent Melisa [G.] abandoned the subject child in that she was
incarcerated part of the four (4) months prior to the filing of this
Petition which exhibits a wanton disregard for the welfare of the child.
Specifically, the mother was arrested on December 7, 2011, April 22,
2012, June 16, 2012, and July 2, 2012, and has just recently been
released. The child came into custody on October 5, 2011. The mother
is repeatedly incarcerated and continues to test positive for drugs for
which she has no prescription. Respondent continued to incur criminal
charges and violate her probation by testing positive for cocaine.
-4-
(B) Respondent, Melisa [G.], has failed to comply in a substantial manner
with the statement of responsibilities set out in periodic foster care
plans prepared for and signed by said Respondent, following the subject
child being found to be dependent and neglected by the Juvenile Court
of Hamilton County. [DCS] has explained to Respondent those
reasonable responsibilities, which are directly related and aimed at
remedying the conditions, which necessitate foster care placement.
Specifically, Respondent failed to: obtain stable housing, refused to
complete a mental health assessment which was to be paid for by the
Department, did not follow through with drug treatment as
recommended by her alcohol and drug assessment, has continued to
incur criminal charges and violate her probation, has tested positive for
cocaine, has not addressed domestic violence issues, and has not
participated in individual or family counseling. The mother later
violated her probation in April 2012 because she was arrested again for
vandalism and malicious mischief. The mother tested positive for
cocaine on May 8, 2012 in her initial testing to restart probation and her
levels were extraordinarily high.
4. Pursuant to T.C.A. § 36-1-113(i), it is for the best interest of the subject
child and the public that all of the parental rights of the Respondent,
Melisa [G.], to the child, Anya [G.] be forever terminated and that the
custody, control and complete guardianship of said child should now be
awarded to the State of Tennessee, Department of Children’s Services
with the right to place said child for adoption and to consent to any
adoption in loco parentis, in that
(a) Respondent, Melisa [G.], has not maintained regular
visitation or other contact with the child.
(b) There is no meaningful relationship between the
Respondent and child.
(c) A change of caretakers and home is likely to have a
highly negative effect on the child. The child is in an
adoptive home and thriving in that placement.
(d) Respondent, Melisa [G.], has shown brutality, abuse or
neglect toward the child or another child in the family or
household. When the children were removed on August
-5-
18, 2011, the mother tried to run over Samantha with a
car and Anya witnessed this and remembers it to this day.
The mother was allegedly high on crack cocaine at the time.
The amended decree therefore terminated Mother’s parental rights to the Child based on the
statutory grounds of (1) abandonment by engaging in conduct prior to incarceration that
exhibits a wanton disregard for the welfare of the child and (2) substantial noncompliance
with the permanency plans.
II. Issues Presented
Mother presents the following issues for our review, which we have restated slightly:
1. Whether the trial court violated Mother’s due process rights under the
Fourteenth Amendment of the U.S. Constitution because the order
terminating Mother’s parental rights included the statutory ground of
persistent conditions, although this ground was not alleged in the
petition to terminate parental rights.
2. Whether DCS’s lack of reasonable efforts prevented reunification of
Mother and the Child.
3. Whether the trial court erred by finding clear and convincing evidence
to support termination of Mother’s parental rights on the statutory
ground of substantial noncompliance with the permanency plans.
4. Whether the trial court erred by finding clear and convincing evidence
to establish that the termination of Mother’s parental rights was in the
best interest of the Child.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
-6-
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in a termination
proceeding under Tenn. Code Ann. § 36-1-113, the persons seeking to
terminate these rights must prove all the elements of their case by clear and
convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re Adoption of
A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to minimize the
possibility of erroneous decisions that result in an unwarranted termination of
or interference with these rights. In re Tiffany B., 228 S.W.3d 148, 155 (Tenn.
Ct. App. 2007); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838,
861 (Tenn. Ct. App. 2005), and eliminates any serious or substantial doubt
about the correctness of these factual findings. In re Valentine, 79 S.W.3d at
546; State Dep’t of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435,
447 (Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Amended Order
Mother’s brief, which was filed prior to the trial court’s entry of an amended final
decree, raises the issue of whether Mother’s due process rights under the Fourteenth
Amendment of the U.S. Constitution were violated when the order terminating Mother’s
parental rights included the ground of persistent conditions, inasmuch as this ground was not
alleged in the petition to terminate parental rights. As explained above, an amended final
decree was later entered by the trial court, which properly listed as the only grounds for
termination (1) abandonment by engaging in conduct prior to incarceration that exhibits a
wanton disregard for the welfare of the child and (2) substantial noncompliance with the
permanency plans. Therefore, Mother’s first issue on appeal is now moot.
-7-
V. Reasonable Efforts by DCS
Mother contends that DCS did not provide her with reasonable assistance in obtaining
the goal of reunification with the Child. As this Court has previously elucidated:
[I]n the absence of aggravating circumstances, [DCS] is statutorily required to
make reasonable efforts to reunite a family after removing children from their
parents’ custody. Tenn. Code Ann. § 37-1-166(a)(2), (g)(2) (2005); In re
M.E., No. M2003-00859-COA-R3-PT, 2004 WL 1838179, at *9 (Tenn. Ct.
App. Aug.16, 2004), perm. app. denied (Tenn. Nov. 8, 2004); In re C.M.M.,
2004 WL 438326, at * 7. Because of this obligation, the Department must not
only establish each of the elements in Tenn. Code Ann. § 36-1-113(g)(3)(A),
it must also establish by clear and convincing evidence that it made reasonable
efforts to reunite the family and that these efforts were to no avail. In re
C.M.M., 2004 WL 438326, at *7 n. 27, *8.
While the Department’s reunification efforts need not be “herculean,” the
Department must do more than simply provide the parents with a list of
services and send them on their way. In re C.M.M., 2004 WL 438326, at *7.
The Department’s employees must use their superior insight and training to
assist the parents in addressing and completing the tasks identified in the
permanency plan.
For the purpose of proceedings such as this one, the Department’s
reunification efforts are “reasonable” if the Department has exercised
“reasonable care and diligence . . . to provide services related to meeting the
needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1) (2005).
The reasonableness of the Department’s efforts depends upon the
circumstances of the particular case. The factors that courts use to determine
the reasonableness of the Department’s efforts include: (1) the reasons for
separating the parent from his or her children, (2) the parent’s physical and
mental abilities, (3) the resources available to the parent, (4) the parent’s
efforts to remedy the conditions that required the removal of the children, (5)
the resources available to the Department, (6) the duration and extent of the
parent’s remedial efforts, and (7) the closeness of the fit between the
conditions that led to the initial removal of the children, the requirements of
the permanency plan, and the Department’s efforts.
The Department does not have the sole obligation to remedy the conditions
that required the removal of children from their parents’ custody. When
-8-
reunification of the family is a goal, the parents share responsibility for
addressing these conditions as well. Thus, parents desiring the return of their
children must also make reasonable and appropriate efforts to rehabilitate
themselves and to remedy the conditions that required the Department to
remove their children from their custody.
In re Giorgianna H., 205 S.W.3d 508, 518-19 (Tenn. Ct. App. 2006) (other internal citations
omitted).
In this case, the evidence demonstrated that Mother failed to take any individual
responsibility for addressing the conditions leading to removal of the Child from her custody.
As Ms. Tittsworth testified, the primary problem that Mother needed to address in order to
regain custody was her drug addiction. DCS provided Mother with a referral to Bradford
Health Services (“Bradford”) for an alcohol and drug assessment. Bradford recommended
that Mother attend intensive outpatient treatment, but Mother did not follow through with
that treatment, blaming transportation difficulties. Mother made no progress regarding
treatment for her drug addiction for several months. Ms. Tittsworth testified that Mother was
uncooperative with any and all efforts to provide assistance. According to Ms. Tittsworth
and Ms. Baker, Mother was openly hostile and abusive toward them, often resorting to
cursing, yelling, and name-calling. Despite Mother’s uncongenial behavior, Ms. Tittsworth
made two referrals for Mother regarding employment, provided Mother with at least three
bus passes, arranged for Mother to have visitation with the Child when she was not
incarcerated, provided Mother with housing referrals, and arranged for Mother to undergo
a psychological evaluation. Mother, however, made no progress whatsoever toward these
goals on her permanency plans, refusing or ignoring all offers of assistance. As Ms.
Tittsworth related, Mother instead placed blame onto others for her problems and refused to
accept responsibility for her own behavior.
As this Court has previously stated:
Reunification is a “two-way street,” and the law does not require DCS to
carry the entire burden of this goal. DCS cannot reasonably be expected to
do everything for a parent.
In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576 at *16 (Tenn. Ct. App. Oct.
13, 2008). We conclude that the efforts toward reunification expended by DCS in this case
were clearly reasonable, despite Mother’s hostile attitude toward DCS’s efforts to provide
assistance. This issue is without merit.
-9-
VI. Substantial Noncompliance with Permanency Plans
The trial court terminated Mother’s parental rights, inter alia, on the statutory ground
that she failed to substantially comply with the reasonable responsibilities set out in her
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides, as relevant to this
action:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
...
(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 initial permanency plan in this case required Mother, inter alia, to complete an
alcohol and drug assessment and follow all recommendations, including submitting to
random drug screens. Mother was also required to have a psychological assessment to
address anger management issues, parenting skills, domestic violence issues, and any other
mental health issues. In addition, Mother was required to obtain and maintain suitable
housing, visit the Child regularly, pay child support, and maintain regular contact with DCS
representatives. Subsequent permanency plans incorporated the same requirements listed
above, as well as required Mother to (1) resolve her legal issues and not incur new criminal
charges, (2) cease associating with persons with a violent or criminal history, (3) achieve and
maintain sobriety, and (4) demonstrate appropriate parenting skills.
As previously noted, the trial court found that Mother had failed to substantially
comply with her responsibilities set out in the permanency plans. The court explained, in
relevant part:
Specifically, [Mother] failed to: obtain stable housing, refused to complete a
mental health assessment which was to be paid for by the Department, did not
follow through with drug treatment as recommended by her alcohol and drug
assessment, has continued to incur criminal charges and violate her probation,
-10-
has tested positive for cocaine, has not addressed domestic violence issues, and
has not participated in individual or family counseling.
Having carefully reviewed the record, we conclude that the preponderance of the evidence
supports these findings. Mother had continued to reside with the maternal grandmother, with
whom Ms. Tittsworth testified Mother had a volatile and abusive relationship. Mother had
never completed the DCS-provided mental health assessment, despite the scheduling and
rescheduling of her appointments to do so. Mother did not follow through with drug
rehabilitation treatment at Bradford prior to the filing of the termination petition, and she
continued to fail drug tests and incur drug-related criminal charges.
Following the filing of the termination petition, Mother completed inpatient treatment
through a different facility. Mother subsequently relapsed, however, and did not complete
her aftercare program. Mother was released from that program because she stopped
attending classes and presented a forged doctor’s excuse. Mother continued her relationship
with T.B., regardless of the volatility of that relationship due to drug and domestic violence
problems. Mother experienced ongoing legal issues, with new warrants having been filed
against her during the course of the termination trial. By her testimony at trial, Mother
admitted that she needed to “get herself together” before she could effectively parent the
Child. Mother had also failed to visit the Child regularly, demonstrate appropriate parenting
skills, maintain regular contact with DCS representatives, or pay more than token child
support. We conclude that the evidence in this case preponderates in favor of the trial court’s
determination, by clear and convincing evidence, that Mother was in substantial
noncompliance with the permanency plans.
VII. Abandonment by Exhibiting Wanton Disregard Prior to Incarceration
The trial court also terminated Mother’s parental rights based on the ground of
abandonment by engaging in conduct prior to incarceration that exhibits a wanton disregard
for the welfare of the child. Although Mother did not appeal this statutory ground, our
Supreme Court has instructed us to review the trial court’s findings of fact and conclusions
of law as to each ground for termination. See In re Angela E., 303 S.W.3d 240, 251 n.14
(Tenn. 2010). Tennessee Code Annotated § 36-1-102(1)(A) defines abandonment, in
relevant part, as:
(iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the parent
-11-
or guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and either
has willfully failed to visit or has willfully failed to support or has willfully
failed to make reasonable payments toward the support of the child for four (4)
consecutive months immediately preceding such parent’s or guardian’s
incarceration, or the parent or guardian has engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child;
....
(Emphasis added.) Regarding the ground of abandonment by wanton disregard, the statute
does not limit the parent’s conduct to any particular four-month period prior to incarceration.
See In re Audrey S., 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005).
The trial court made the following pertinent finding in its final decree:
Specifically, the mother was arrested on December 7, 2011, April 22, 2012,
June 16, 2012, and July 2, 2012, and has just recently been released. The child
came into custody on October 5, 2011. The mother is repeatedly incarcerated
and continues to test positive for drugs for which she has no prescription.
[Mother] continued to incur criminal charges and violate her probation by
testing positive for cocaine.
The preponderance of the evidence adduced at trial supports these findings. During
the fourteen-month period that the Child had been removed from her custody prior to the
filing of the termination petition, Mother incurred multiple criminal charges, most of which
were drug-related. Mother continued to incur criminal charges through the course of the
termination trial. Mother repeatedly failed drug screens administered pursuant to her
probation and failed to present any effort toward rehabilitation until well after the termination
petition was filed.
The above-referenced statute does not define “wanton disregard.” We have
previously explained the purpose behind this statutory section, however, as follows:
Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the commonsense notion
that parental incarceration is a strong indicator that there may be problems in
the home that threaten the welfare of the child. Incarceration severely
-12-
compromises a parent’s ability to perform his or her parental duties. 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. However, parental incarceration is not an infallible predictor of parental
unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s second test
for abandonment does not make incarceration alone a ground for the
termination of parental rights. An incarcerated or recently incarcerated parent
can be found guilty of abandonment only if the court finds, by clear and
convincing evidence, that the parent’s pre-incarceration conduct displayed a
wanton disregard for the welfare of the child. Thus, the parent’s incarceration
serves only as a triggering mechanism that allows the court to take a closer
look at the child’s situation to determine whether the parental behavior that
resulted in incarceration is part of a broader pattern of conduct that renders the
parent unfit or poses a risk of substantial harm to the welfare of the child.
In re Audrey S., 182 S.W.3d at 866 (internal citations omitted). As the Court further
explained, “We have repeatedly held that probation violations, repeated incarceration,
criminal behavior, substance abuse, and the failure to provide adequate support or
supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton
disregard for the welfare of a child.” Id. at 868.
Upon our review of the record in this cause, we conclude that Mother engaged in
conduct prior to her incarceration that exhibited a wanton disregard for the welfare of the
Child. Her failure to address her substance abuse issues and her continued criminal behavior,
probation violations, and incarcerations demonstrate a broad pattern of conduct that renders
her unfit to care for the Child. There is clear and convincing evidence to support the trial
court’s termination of Mother’s parental rights on this statutory ground as well.
VIII. Best Interest of Child
When a parent has been found to be unfit by establishment of a ground for
termination, as here, the interests of parent and child diverge, and the focus shifts to what is
in the child’s best interest. In re Audrey S., 182 S.W.3d at 877. Tennessee Code Annotated
§ 36-1-113(i) provides a list of factors the trial court is to consider when determining if
termination of parental rights is in the child’s best interest. This list is not exhaustive, and
the statute does not require the court to find the existence of every factor before concluding
that termination is in a child’s best interest. In re Audrey S., 182 S.W.3d at 878. Further, the
-13-
best interest of a child must be determined from the child’s perspective and not the parent’s.
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol,
controlled substances, or controlled substance analogues as may
render the parent or guardian consistently unable to care for the
-14-
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.
The trial court found that it was in the Child’s best interest to terminate Mother’s
parental rights, as demonstrated by the court’s relevant findings as to the following factors:
(a) Respondent, Melisa [G.], has not maintained regular visitation or other
contact with the child.
(b) There is no meaningful relationship between the Respondent and child.
(c) A change of caretakers and home is likely to have a highly negative
effect on the child. The child is in an adoptive home and thriving in
that placement.
(d) Respondent, Melisa [G.], has shown brutality, abuse or neglect toward
the child or another child in the family or household. When the
children were removed on August 18, 2011, the mother tried to run
over Samantha with a car and Anya witnessed this and remembers it to
this day. The mother was allegedly high on crack cocaine at the time.
The proof preponderates in favor of these findings. In addition, when reviewing the
evidence in light of the statutory factors, it is clear that Mother did not make an adjustment
to her circumstances or conduct such that it would be safe for the Child to be in her home.
Mother had failed a drug screen as recently as March 2013. Moreover, given the time
involved and lack of effort expended by Mother in this case, an adjustment of circumstance
does not reasonably appear possible. Mother did visit with the Child but did not demonstrate
that she had a relationship with her. In fact, the foster mother testified that the Child was
afraid of Mother and experienced nightmares and behavior reflecting regression after visits.
-15-
A present change in caretakers would likely have a detrimental effect given the
Child’s needs and Mother’s inability or unwillingness to address her drug problem. Mother
displayed neglect of and abuse toward the Child because of her drug use, and her home was
not safe or appropriate as she continued in substance abuse. The Child was thriving in her
current placement and had bonded well with the foster family, who wished to adopt her once
that option was available. Mother’s mental and emotional status would prevent her from
providing a safe home or stability for the Child, as she resisted all efforts by DCS to extend
help. Mother appeared to lack an appreciation of the significance of her problem. Finally,
Mother had paid only token child support. The evidence does not preponderate against the
trial court’s determination, by clear and convincing evidence, that terminating Mother’s
parental rights was in the best interest of the Child.
IX. Conclusion
The judgment of the trial court terminating the parental rights of Mother is affirmed.
Costs on appeal are taxed to appellant, Melisa G. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of
costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
-16-