In Re Austin A. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 13, 2014
IN RE AUSTIN A., ET AL.
Appeal from the Juvenile Court for Washington County
No. J14271, J14272 Robert D. Arnold, Judge
No. E2014-00910-COA-R3-PT-FILED-NOVEMBER 17, 2014
This case concerns the termination of the mother’s parental rights. We have
determined that the record contains clear and convincing evidence to support terminating the
mother’s parental rights on the ground relied upon by the trial court. The record further
supports the conclusion that terminating the mother’s parental rights is in the children’s best
interest. Accordingly, we affirm the findings of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.
C. Brad Sproles, Kingsport, Tennessee, for the appellant, Amanda P.
Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
Michelle Caggiano, Elizabethton, Tennessee, Guardian ad Litem.
OPINION
I. BACKGROUND
The children in this appeal – Austin Matthew A. (d.o.b. 7/20/2010) (“Matthew”)1 and
Xander Kain A. (d.o.b. 10/8/2012) (“the Children”) – were brought into state custody on
May 15, 2013. Matthew’s father is Scott A., whose parental rights were terminated in an
earlier proceeding. Xander’s father is Andrew A., who surrendered his parental rights. On
the date the Children came into custody, the police arrested Amanda P. (“Mother”) and
Andrew A. for aggravated child abuse of Matthew. The following day, the Department of
Children’s Services (“DCS”) filed a petition to adjudicate dependency and neglect. On
August 8 and September 26, 2013, DCS filed petitions to terminate Mother’s parental rights
to the Children. The trial court determined that the Children were dependent and neglected
and that Mother severely abused Matthew. A no-contact order prohibiting contact between
Mother and the Children was entered by the court.2
The trial was conducted on March 13, 2014. Jennifer Smith, the Children’s DCS
Family Service Worker, described the abuse suffered by Matthew:
His face was severely . . . swollen . . . In the photographs he could not open his
eyes. He had bruises all over him in different [stages of healing], so it appeared
they may not have been from that initial incident. . . . Bruising, really bad,
discolored.
She related that Matthew was in the hospital “between five and seven days.” Ms. Smith
noted that Mother has pending criminal charges stemming from the abuse allegations.
According to Ms. Smith, Mother has not paid any child support for the ten months the
Children have been in foster care, and she is “not aware of any” changes Mother has made
in her conduct or circumstance that would make it safe for the Children to be returned to her
care.
Ms. Smith testified that the Children were in a pre-adoptive home and doing well. She
noted the Children had bonded to their foster parents and that the couple desired to adopt
them. Ms. Smith acknowledged that Mother was in contact with DCS and brought gifts for
the Children on Christmas, Halloween, and their birthdays. She observed: “I mean I believe
1
Orders of record and witness testimony refer to Austin Matthew by his middle name.
2
This was also a bond condition in her criminal aggravated child abuse proceeding.
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that she loves her children . . . and that’s showing. She wants to know how they are doing,
wants to give them gifts, but at the same time, she didn’t protect her children, in my eyes.”
Robin C. (“Foster Mother”) testified that the Children had been placed with her for
nine months and “[t]hey are doing wonderful” in her home. When Matthew first came into
her care, Foster Mother recalled that “he was thin, really thin . . . he would hide food, and we
would find it days later, you know. I’d find it in a closet or under his pillow or under his
bed.” His issues with food hoarding have been resolved. She notes that Matthew is in
speech and occupational therapy and “is talking really well.” Foster Mother noted that the
Children are particularly bonded to her and that Xander in particular gets very upset when
she leaves. She expressed concern that Matthew would regress if removed from her home.
Foster Mother told the court that she and her husband love the Children and hope to adopt
them.
Mother testified that she is now living with her fiancé and his 2-year-old son.3 She
is working for 30-35 hours a week at Sammons Restaurant in Elizabethton, Tennessee,
making $7.25 an hour. She stated that she was scheduled to take a parenting class at Agape
after the conclusion of the trial. Mother related that she had been prescribed Klonopin for
anxiety and depression and had been seeing a therapist at Watauga. According to Mother,
she contacted Ms. Smith at DCS weekly by phone.
In describing her life prior to the abuse incident, Mother told of taking the Children
to the park and reading to them. She related no notice of any danger in leaving the Children
with Andrew A. – he was watching them because she was working long hours as the only
source of income for the household. She admitted that she was still facing criminal charges
for the abuse. She further acknowledged regular contact with and residing next door to her
stepfather, a registered sex offender who had sexually abused her when she was fifteen. She
also admitted to permitting the Children to visit with her mother and stepfather regularly.
On April 24, 2014, the trial court terminated Mother’s parental rights to the Children.
The trial court made the following conclusions of law:
Pursuant to T.C.A. 36-1-113(g)(4), there is clear and convincing evidence that
[Mother] perpetrated severe child abuse against the minor child, Matthew A[.],
the same being stipulated to by all parties as a finding in a final order of this
Honorable Court, which was not appealed, and thus res judicata.
Pursuant to T.C.A. 36-1-113(g)(4), there is clear and convincing evidence that
3
The son resides there part-time.
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Xander A[.] is the half-sibling of the minor child, Matthew, and that Xander
was residing permanently in the home when the incident of severe abuse took
place.
On the best interest ground, the court made the following findings of fact:
It is in the [C]hildren’s best interest for termination to be granted as to
[Mother], because she has not made changes in her conduct or circumstances
that would make it safe for the [C]hild[ren] to go home. The Court finds that
[Mother] was arrested in conjunction with the injuries which gave rise to the
removal of the [C]hildren. The Court finds that, according to the testimony of
[Mother], she is currently living with her fiancé, . . . with whom she has been
engaged for two (2) months. They have lived in this home for six (6) months.
She is not listed on the lease to this home. This home is a two (2) bedroom
residence. One bedroom belongs to [Mother] and [fiancé], while the other
belongs to [fiancé]’s son, who often stays with them. The Court finds that
there is not sufficient room for these minor [C]hildren in [Mother]’s current
residence.
The Court finds that, based upon the testimony of [Mother], she is presently
working at Sammon’s Restaurant in Elizabethton, Tennessee. She works
approximately thirty (30) hours per week and makes seven dollars and twenty-
five cents ($7.25) per hour at this job. Both [Mother] and [fiancé]’s
employment and work schedule is such that they would be unable to care for
the minor [C]hildren in the home without additional childcare and babysitting
assistance. [Mother] further testified that, were the [C]hildren returned to her
care, her brother and his paramour would assist her with childcare. The Court
finds that DCS has previously conducted a home study of the aforementioned
relative’s home, which was made an exhibit in this cause. This home study
identified numerous concerns for the safety of the [C]hildren in this home.
The primary concern with the home was the close relationship between this
relative and [Mother]’s stepfather, who is a registered sex offender. The Court
also finds that, based upon her testimony, [Mother] has chosen to reside next
door to her stepfather, who is a registered sex offender[] . . . and has contact
with him three (3) to four (4) times per week in violation of the law. Despite
her history with her stepfather, [Mother] views her stepfather to be her friend.
The Court finds that, after she was released from incarceration, [Mother] chose
to live with her stepfather and mother for approximately four (4) months. This
is in spite of the fact that she was a victim of sexual abuse by her stepfather,
was removed from the care of her stepfather and mother at age fifteen (15). .
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..
The Court finds that, based upon [Mother]’s testimony, after she was released
from jail seven (7) months ago, she began seeing a psychiatrist, where she was
diagnosed with anxiety and depression. She is currently prescribed klonopin
to treat these conditions.
The Court finds that the circumstances that led to the removal of the [C]hildren
from the home of [Mother] have not been remedied. [Mother] testified that
she has not completed any form of rehabilitative services or tasks to address
the issues of dependence and neglect or severe child abuse in her home.
Additionally, the Court finds that [Mother] has yet to make adjustments to her
conduct or circumstances to make it safe for the [C]hildren to go home. In the
seven (7) months since her release from jail on bond, she has not completed
any form of parenting skills training. She has not completed any kind of
parenting assessment. She has not completed any form of anger management
or domestic violence training. She still has outstanding legal charges that have
not been addressed.
Based upon the testimony of the [C]hildren’s DCS case manager, Jennifer
Smith, the Court finds that the Department remains unable to recommend
returning the [C]hildren to ]Mother].
Thus, the Court finds, by clear and convincing evidence, that [Mother] has
failed to make changes in her conduct and circumstances that would make it
safe for the [C]hildren to return to her care, such that it is in the best interest
of the minor [C]hildren that her parental rights should be terminated.
It is in the [C]hildren’s best interest for termination to be granted as to
[Mother], because there is no meaningful relationship between herself and the
[C]hildren. The Court finds that, based upon the testimony of Ms. Smith, the
[C]hildren have not visited with [Mother] since May, 2013. This is due to a
no contact order being placed in effect between the minor [C]hildren and
[Mother] . . . . Despite [Mother]’s testimony that she feels she has a close
relationship with the [C]hildren, the Court further finds that, based upon the
age of the [C]hildren, they have little to no memory of [Mother]. They identify
their foster parents as their family. Based upon the testimony of [Foster
Mother], the Court finds that [the Children] have not asked for, or about, their
[M]other since they were placed into DCS custody for foster care. The Court
also specifically finds that, hopefully, the minor child, Matthew, will one day
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be able to forget the abuse he suffered while in [Mother]’s care.
Thus, the Court finds, by clear and convincing evidence, that there is no
meaningful relationship between [Mother] and the minor [C]hildren, such that
it is in the best interest of the minor [C]hildren that her parental rights should
be terminated.
It is in the [C]hildren’s best interest for termination to be granted as to
[Mother], because changing caregivers at this stage of their lives would have
a detrimental effect on them. The Court finds that, based upon the testimony
of the minor [C]hildren’s foster mother, the [C]hildren have developed a
strong bond with their foster family. Their lives are settled in this home, and
all of their needs are being met there. Due to the actions of the [C]hildren’s
foster parents, the minor child, Matthew, is now in occupational therapy and
speech therapy. Based upon the testimony presented at trial, the Court finds
that he was not enrolled in these therapies prior to his removal from [Mother]’s
care. According to the testimony of his foster mother, when Matthew came to
the foster home, he was only able to say “goodbye” and to “jibber-jabber.” To
communicate, he would point at things and grunt that he wanted them.
Further, based upon [Foster Mother]’s testimony, the Court finds that, when
he came to stay in his current foster home, he was very thin, hesitant to interact
with men, and withdrawn. He would also hid food to such an extent that the
foster parents did not find it for several days.
The Court finds that, based upon the testimony of [Foster Mother], since
coming to the foster home, Matthew A[.] has begun to open up, and his food
hoarding tendencies have subsided. He has healed from the injuries
perpetrated on him while in [Mother]’s care. His physical health has
improved. He has gained weight, and is enrolled in day care. He is more
outgoing. Further, both of the minor [C]hildren are actively involved in the
foster parents’ church.
The Court finds that, based upon the testimony of [Foster Mother], the minor
child, Xander, stays home with his foster mother during the day, and shares a
strong bond with her.
Thus, the Court finds, by clear and convincing evidence, that changing
caregivers would be detrimental to these [C]hildren, and is contrary to their
best interest, such that it is in the best interest of the minor [C]hildren that
[Mother]’s parental rights should be terminated.
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It is in the [C]hildren’s best interests for termination to be granted as to
[Mother], because she has abused or neglected the minor child, Matthew A[.],
by perpetrating severe child abuse against him and knowingly failing to protect
him from the same. This child is a half-sibling to the minor child, Xander A[.].
...
Thus, the Court finds, by clear and convincing evidence, that [Mother] abused,
neglected, and severely abused the minor child, Matthew A[.], and that this
child is half-sibling to Xander A[.], such that it is in the best interest of the
minor [C]hildren that her parental rights should be terminated.
It is in the [C]hildren’s best interests for termination to be granted as to
[Mother], because there is crime in her home. The Court specifically finds
that, based upon the testimony of [Mother], she was arrested on or about May
15, 2013 on charges of aggravated child abuse and neglect against her son,
Matthew A[.]. She was incarcerated for approximately three (3) to four (4)
months. These charges have yet to be resolved, such that there is the potential
for jail time in [Mother]’s future. . . .
Thus, the Court finds that there is crime in the home of [Mother], such that it
is in the best interest of the minor [C]hildren that her parental rights be
terminated.
It is in the [C]hildren’s best interests for termination to be granted as to
[Mother], because she has not paid child support consistently. The Court finds
that, based upon [Mother]’s testimony, she has not paid any support for the
[C]hildren since they entered DCS custody or since her release from
incarceration.
Thus, the Court finds that [Mother] has failed to support the minor [C]hildren,
such that it is in the best interest of the minor [C]hildren that her parental
rights be terminated.
It is in the [C]hildren’s best interests for termination to be granted as to
[Mother], because the [C]hildren have established a strong bond with their
foster parents, who wish to adopt them. The court finds that Matthew is four
(4) years of age, and that Xander is seventeen (17) months old. Based upon
the testimony of the [C]hildren’s DCS case manager, the Court finds that the
[C]hildren have remained continuously in this foster home since they were
removed approximately ten (10) months ago. This home is free of any issues
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of dependency and neglect and severe child abuse. Each and every one of the
[C]hildren’s needs is being met in this home, and they are safe there. Based
upon the testimony of [Foster Mother], the Court finds that their foster parents
love the [C]hildren, and that the [C]hildren care deeply for their foster parents.
The Court finds that they all share a deep bond with one another. The
[C]hildren call their foster parents “mama” and “daddy.” They also regularly
interact with the foster parents’ extended family, with whom they also share
a deep affection. They become upset when they are not with their foster
parents.
The Court finds that, based upon the testimony of [Foster Mother], the minor
[C]hildren are currently placed together. They share a close relationship with
each other and are bonded to each other. Further, the Court has previously
found that separating these [C]hildren would be contrary to their best interest.
They are typical brothers to each other. [Foster Mother] testified that the
minor child, Matthew, tells his brother that he loves him. They spend time
together. They have a playroom full of toys that belong to them. They play
together all the time. The minor child, Xander, is learning to talk. The minor
child, Matthew, has his own room. Xander sleeps in the foster parent’s room
due to his age. The Court also finds that the [C]hildren are thriving in their
current foster home environment.
Thus, the Court finds that the Children have established a strong bond with
their foster parents, who wish to adopt them, such that it is in their best interest
for the parental rights of [Mother] to be terminated.
On May 13, 2014, Mother filed a timely notice of appeal to this Court.
II. ISSUE
We restate the issue presented to this court as follows:
Whether the trial court properly determined that clear and convincing evidence
established that termination of Mother’s parental rights was in the best interest
of the children.
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III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed.2d 551 (1972); In re Swanson, 2
S.W.3d 180, 188 (Tenn. 1999); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988).
This right “is among the oldest of the judicially recognized liberty interests protected by the
Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d 643,
652–53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave and
final decision, irrevocably altering the lives of the parent and child involved and ‘severing
forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130 S.W.3d 48, 54
(Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36–1–113(I)(1)). “ ‘[F]ew consequences
of judicial action are so grave as the severance of natural family ties.” ’ M.L.B. v. S.L.J., 519
U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed.2d 473 (1996) (quoting Santosky v. Kramer, 455
U.S. 745, 787, 102 S. Ct. 1388, 71 L. Ed.2d 599 (1982)).
While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. “[A] court must determine that clear and convincing evidence
proves not only that statutory grounds exist [for termination] but also that termination is in
the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The existence
of at least one statutory basis for termination of parental rights will support the trial court’s
decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000),
abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental rights termination cases minimizes the risk
of erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002–02603–COA–R3–JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug.13, 2003).
This evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
The Tennessee Supreme Court has provided guidance in reviewing cases involving
the termination of parental rights:
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A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings under
[Tennessee Code Annotated section] 36–1–113, the reviewing court must then
make its own determination regarding whether the facts, either as found by the
trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination
claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447–48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
Appellate courts conduct a de novo review of the trial court’s decisions
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010) ]; In re
Adoption of A.M.H., 215 S.W.3d at 809.
In re Bernard T., 319 S.W.3d 586, 596–97 (Tenn. 2010) (emphasis added).
On appeal, the trial court’s specific findings of fact are reviewed de novo upon the
record with a presumption of correctness, unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d). Because of the heightened burden of proof required in
termination cases, see Tenn. Code Ann. § 36-1-113(c)(l), the appellate court also “must
determine whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required to
terminate a biological parent's parental rights.” In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct.
App. 2004) (citing, inter alia, Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)).
Regarding the credibility of trial witnesses, the reviewing court should give considerable
deference to the trial court’s findings. McCaleb v. Saturn, 910 S.W.2d 412, 415 (Tenn.
1995); see Sonet v. Unknown Father of J.D.H., 797 S.W.2d 1, 5 (Tenn. Ct. App. 1990)
(stating that “the findings of the trial court as to the credibility of the witnesses are entitled
to great weight”).
The Tennessee Supreme Court requires that, “before a parent’s rights can be
terminated, there must be a showing that the parent is unfit or that substantial harm to the
child will result if the parental rights are not terminated.” In re Swanson, 2 S.W.3d at 188.
“The trial court is required to find only one statutory ground for termination of parental
rights,” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003), which is sufficient to establish
substantial harm, or a parent’s unfitness and, therefore, to “support a termination of parental
rights.” In re Valentine, 79 S.W.3d at 546. Thus, the State need not prove all of the grounds
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alleged. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000).
IV. DISCUSSION
A. GROUNDS FOR TERMINATION
Tennessee Code Annotated section 36-1-113 provides the grounds for termination of
parental rights. The applicable provisions read as follows:
36-1-113. Termination of parental rights. – (a) The chancery and circuit
courts shall have concurrent jurisdiction with the juvenile court to terminate
parental or guardianship rights to a child . . . by utilizing any grounds for
termination of parental or guardianship rights permitted in this part or in title
37, chapter 1, part 1 and title 37, chapter 2, part 4.
***
(c) 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.
***
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). . . :
***
(4) The parent or guardian has been found to have committed
severe child abuse as defined in § 37–1–102, under any prior
order of a court or is found by the court hearing the petition to
terminate parental rights . . . to have committed severe child
abuse against the child who is the subject of the petition or
against any sibling or half-sibling of such child, or any other
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child residing temporarily or permanently in the home of such
parent or guardian . . . .
Tenn. Code Ann. § 36–1–113(a)-(g)(4). The party petitioning for termination carries the
burden of proof. In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). The
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 at 188.
“Severe child abuse” is defined, in relevant part, as:
The knowing exposure of a child to or the knowing failure to protect a child
from abuse or neglect that is likely to cause serious bodily injury or death and
the knowing use of force on a child that is likely to cause serious bodily injury
or death.
Tenn. Code Ann. § 37–1–102(b)(23)(A)(i). A finding of “severe child abuse” in the
underlying dependency and neglect action serves two purposes. First, the finding of “severe
child abuse” constitutes an independent ground for the termination of parental rights. See
Tenn. Code Ann. § 36–1–113(g)(4). Second, a finding of “severe child abuse,” even if made
during a dependency and neglect action, relieves DCS of its obligation to preserve and
reunify the child with the parents. Tenn. Code Ann. § 37–1–166(g)(4)(A).
In its order dated August 8, 2013, the trial court found that Matthew suffered severe
child abuse as defined by Tennessee Code Annotated section 37–1–102 (23) perpetuated by
Mother and Andrew A. That order is a final order regarding the disposition of Matthew as
dependent and neglected on the ground of severe child abuse. Mother did not appeal the
finding. A court may apply “the doctrine of res judicata to prevent a parent from re-litigating
whether she committed severe child abuse in a later termination of parental rights
proceeding, when such a finding had been made in a previous dependency and neglect
action.” In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012). Thus, where a
parent had a full and fair opportunity to litigate the issue of severe abuse in the prior suit and
did not appeal, the finding of severe abuse is “a final decision, which the [parent] is barred
from challenging.” State Dep’t of Human Servs. v. Tate, No. 01–A–01–9409–CV–00444,
1995 WL 138858, at *5 (Tenn. Ct. App. Mar. 31, 1995). Because Mother did not appeal the
trial court’s previous finding of severe child abuse, the order became a final order and res
judicata.
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B. BEST INTEREST
Having concluded that there was clear and convincing evidence supporting a statutory
ground to terminate Mother’s parental rights, we must consider whether termination of
Mother’s parental rights was in the best interest of the Children. In making this
determination, we are guided by the non-exhaustive list of factors provided in Tennessee
Code Annotated section 36–1–113:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child . . . 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;
(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
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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 [section] 36–5–101.
Tenn. Code Ann. § 36–1–113(i). “This list is not exhaustive, and the statute does not require
a trial court to find the existence of each enumerated factor before it may conclude that
terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when
the best interest[] of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interest[ ] of the child, which interests are
hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36–1–101(d); see also
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering
a child’s best interest, the court must take the child’s perspective, rather than the parent’s).
Mother is facing criminal aggravated child abuse charges. See Tenn. Code Ann. §
36-1-113(i)(6). While the Children have been in foster care, she has failed to pay any child
support. See Tenn. Code Ann. § 36-1-113(i)(9). The relationship between the Children and
Mother has eroded due to their long absence from her and they now call the foster parents
“mama” and “daddy.” See Tenn. Code Ann.§ 36-1-113(i)(4). The Children are thriving in
their foster home, and the foster parents want to adopt them. It would be contrary to the best
interest of the Children to be removed from their foster family. See Tenn. Code Ann. § 36-
1-113(i)(5). We find clear and convincing evidence supports the determination of the trial
court that termination of Mother’s parental rights is in the Children’s best interest.
V. CONCLUSION
We affirm the decision of the trial court. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are assessed to the appellant, Amanda
P.
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JOHN W. McCLARTY, JUDGE
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