In Re Serenity S. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 24, 2014
IN RE SERENITY S.
Appeal from the Juvenile Court for Madison County
No. 5348178 Christy R. Little, Judge
No. W2014-00080-COA-R3-PT - Filed November 24, 2014
This is a termination of parental rights case brought by the guardian ad litem. The trial court
terminated Mother/Appellant’s parental rights on the grounds of severe child abuse pursuant
to Tennessee Code Annotated Section 36-1-113(g)(4), and persistence of conditions under
Tennessee Code Annotated Section 36-1-113(g)(3). The trial court also found, by clear and
convincing evidence, that termination of Mother’s parental rights was in the child’s best
interest. Because there is clear and convincing evidence in the record to support both the
grounds for termination of Mother’s parental rights and the trial court’s finding on best
interest, we affirm and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court is
Affirmed and Remanded
K ENNY A RMSTRONG, J., delivered the opinion of the Court, in which J. S TEVEN S TAFFORD,
P.J., W.S., and A RNOLD B. G OLDIN, J., joined.
Joshua Brian Dougan, Jackson, Tennessee, for the appellant, T.S.
Kortney D. Simmons, Jackson, Tennessee, Guardian Ad Litem.
1
OPINION
I. BACKGROUND
The minor child at issue in this case, S.G.S.,1 was born in May 2012 to T.S. (“Mother,” or
“Appellant”). S.G.S. was born with Triple X Syndrome.2 Shortly after the child’s birth, the
Mother’s doctor ordered a urine drug screen because of Mother’s erratic behavior and her
threat to leave the hospital against medical advice. T.S.’s urine tested positive for
methamphetamine, and on May 11, 2012, referral was made to the Tennessee Department
of Children’s Services (“DCS”).3 On that day, DCS “call worker,” Zanetta Williamson,
spoke with Mother at the hospital. Mother informed Ms. Williamson that “her membrane
had ruptured on May 8, 2012; however, she was not admitted to the hospital until May 9,
1
In cases involving minor children, it is the policy of this Court to redact the parties’
names so as to protect their identities.
2
Triple X syndrome (also known as triplo-X, trisomy X, XXX syndrome, 47,XXX
aneuploidy) is a form of chromosomal variation characterized by the presence of an extra X
chromosome in each cell of a human female. Females with triple X syndrome have three X
chromosomes instead of two. Triple X results during division of a parent's reproductive cells and
occurs about once in every 1,000 female births. Unlike most other chromosomal conditions (such
as Down syndrome), there is usually no distinguishable difference to the naked eye between those
with triple X and the rest of the female population. Triple X syndrome most often has only mild
effects, or has no unusual effects at all. However, symptoms may include tall stature; small head
(microcephaly); vertical skinfolds that may cover the inner corners of the eyes (epicanthal folds); and
speech and language learning disabilities, such as dyslexia; or weak muscle tone. The symptoms vary
from person to person, with some women being more affected than others.Females with Triple X
syndrome are at increased risk of delayed language development, EEG abnormalities, motor
coordination problems, auditory processing disorders, and scoliosis. They tend to show accelerated
growth until puberty.
3
Mother’s husband, M.S., was declared the child’s legal father based upon his marriage
to Mother at the time of the child’s birth. See Tenn. Code Ann. 36-1-102(28)(B). However, DNA
test results, admitted as trial exhibit 6, indicate a zero probability that M.S. is S.G.S.’s biological
father. Mother testified that she was raped, and that she does not know the identity of S.G.S.’s
biological father. In any event, inquiry with the Putative Father Registry did not produce any other
claims of paternity for this child, and the trial court made a specific finding, in its December 4, 2013
order terminating Mother’s parental rights, that “all reasonable efforts have been made to ascertain
the identity of the child’s biological father.” This finding is not appealed. We note that although
the petition to terminate parental rights was brought against both Mother and M.S., M.S. did not
participate or appear in the termination proceeding. On December 4, 2013, the Juvenile Court
terminated M.S.’s parental rights to S.G.S. by default. He is not a party to this appeal.
2
2012 stating that she had too much to do at home.” DCS investigator, Dorthea Brice,4 was
subsequently assigned to S.G.S.’s case. Ms. Brice testified that Mother informed her that she
had previously (circa 2005) served three and one-half years in federal prison for
manufacturing methamphetamine. At the time Ms. Brice became involved in S.G.S.’s case,
Mother was on probation from criminal charges in Gibson County. In interviews with Ms.
Brice, Mother denied any illegal drug use during her pregnancy. However, based upon
Mother’s positive urine test, a nail sample was taken from Mother on May 29, 2012 . The
nail test, which was admitted as trial exhibit 1, was positive for both amphetamine and
methamphetamine. Also, on May 29, 2012, a sample of the child’s hair was sent for drug
testing. The results of the test, as set out in trial exhibit 2, showed that the child was positive
for both methamphetamine and marijuana. While the results of the nail and hair analyses
were pending, Mother had left the hospital with the child.
Following Mother’s positive drug screen, the Madison County Metro Narcotics Unit
conducted an investigation of Mother’s home (where the child was also living at that time)
on June 6, 2012. The Narcotics Unit discovered an active methamphetamine lab in a
backyard shed on the property. Methamphetamine residue was also found in the bathroom
inside the house. Mother was arrested and charged with initiating the process to manufacture
methamphetamine, a felony under Tennessee Code Annotated Section 39-17-435. Although
the initiation charge was ultimately dropped,5 Mother was found guilty, following a jury trial,
of possession of methamphetamine. For the charge of possession of methamphetamine,
Mother received a sentence of eleven months and twenty-nine days of Community
Correction. At the time of the hearing on termination of her parental rights, Mother was out
of custody on an appeal bond.
Following Mother’s arrest, on June 6, 2012, DCS removed S.G.S. from Mother’s custody and
placed her in the temporary custody of the maternal grandparents. However, this initial
placement proved to be unsuccessful, and, on June 14, 2012, the child was placed in the
temporary custody of her maternal uncle and his wife, where she has remained since that
time.
4
Ms. Brice’s first name is listed as Therethra in the transcript of the evidence. It is listed
as Dorthea in the trial court’s order. For purposes of this opinion, we will use Dorthea.
5
Mother testified at trial that the methamphetamine was being produced by a “friend” of
Mother’s who was living with Mother at the time. According to Mother’s testimony, this person
admitted that the methamphetamine lab was hers, which admission led to the initiation charges
against Mother being dropped.
3
On June 11, 2012, DCS filed a dependency and neglect petition in the Juvenile Court of
Madison County. On October 16, 2012, the trial court entered an order on the dependency
and neglect petition. Therein, the court found that the child was dependent and neglected
under Tennessee Code Annotated Section 37-1-129(a) in that she “suffered from abuse
and/or neglect,” and was the victim of “severe child abuse as defined at T.C.A.37-1-
102[(b)](23)(A)(i) and (ii), (B) and (D), perpetrated by [T.S.].” The court further found that
it was in the child’s best interest to remain in the custody of her foster parents.
As evidenced by Mother’s mugshot, which was admitted as trial exhibit 10, sometime
between December 31, 2012 and January 2, 2013, she was arrested, in Madison County, for
public intoxication. Mother testified that this charge was ultimately dismissed.
On July 29, 2013, the guardian ad litem, Kortney D. Simmons (“Appellee”) filed a petition
to terminate Mother’s parental rights.6 As grounds for the petition, Appellee alleged: (1)
abandonment under Tennessee Code Annotated Section 36-1-113(g)(1) for willful failure to
pay reasonable support for the child as defined at Tennessee Code Annotated Section 36-1-
102(1)(A)(i), and wanton disregard for the welfare of the child as defined at Tennessee Code
Annotated Section 36-1-102(1)(A)(iv); (2) persistence of the conditions that led to the
child’s removal from Mother’s custody under Tennessee Code Annotated Section 36-1-
113(g)(3); and (3) severe child abuse under Tennessee Code Annotated Section 36-1-
113(g)(4), as that term is defined at Tennessee Code Annotated Section 37-1-102. By order
dated July 29, 2013, and upon adjudication of indigency, a lawyer was appointed to represent
Mother in this case.
On or about September 9, 2013, as set out in trial exhibit 8, Mother was arrested in
Henderson County for felony vandalism for “knowingly caus[ing] damage to the victim’s
vehicle by throwing a cinderblock against the front windshield busting it and putting large
dents in the driver’s side/passenger’s side door, [and] putting water in [the victim’s] gas
[tank].” Mother was further charged with vandalism “by damage to the siding on a house
trailer,” and with domestic assault against her husband, M.S., “by hitting him with a baseball
bat.” These charges were incurred while Mother was on supervised community corrections.
By Affidavit of the Madison County Department of Community Correction, entered on
October 21, 2013, Mother was alleged to be in violation of the conditions of her community
corrections sentence based upon her arrest on the foregoing charges. In addition to her arrest,
Mother was further alleged to be in violation of her community corrections sentence for: (1)
“fail[ing] to remain drug free . . .[and] test[ing] positive for Marijuana on September 18,
6
Although DCS was listed as a co-petitioner on the petition, DCS did not, in fact,
participate in the prosecution of this case. Accordingly, Ms. Simmons, the guardian ad litem, is
the sole Appellee in this appeal.
4
2013;” and (2) fail[ing] to report for [a] scheduled office visit with Community Corrections
on September 25, 2013.” A warrant was issued for Mother’s arrest on October 21, 2013.
These charges were pending against Mother at the time of the hearing on the petition to
terminate her parental rights.
While the vandalism and domestic assault charges were pending, Mother petitioned the court,
on September 13, 2013, to allow her visitation with S.G.S. In her petition, Mother stated,
in relevant part, that:
During some portions of this process, Mother has been
incarcerated. . . . At this time, however, Mother is living in
stable housing in Madison County. She continues to undergo
frequent drug screens, none of which have resulted in a positive
finding for any drugs or other illegal substances. Mother is
meeting as required with her probation officer and has
completed all steps as required to this point in her criminal
justice matter. Mother has obtained stable employment.
The guardian ad litem opposed visitation, alleging that “Mother is not a fit and proper
caregiver. . . . Since the minor child has been [in DCS custody], Mother has been arrested
at least two additional times, [aside from] her Methamphetamine [charges], and has had her
probation revoked in Gibson County.” Based upon the new criminal charges, the court
denied Mother’s request for visitation.
On November 5, 2013, the trial court heard the petition to terminate Mother’s parental rights.
By order dated December 4, 2013, the trial court terminated Mother’s parental rights on
grounds of: (1) “severe child abuse by the hands of Mother pursuant to T.C.A. §36-1-
113(g)(4); and (2) persistence of the conditions that lead to the child’s removal from
Mother’s custody pursuant to Tennessee Code Annotated Section 36-1-113(g)(3). The court
also found, by clear and convincing evidence, that termination of Mother’s parental rights
was in the child’s best interest.
II. ISSUES
Mother appeals. She raises two issues for review, which we restate as follows:
1. Did the trial court err in finding clear and convincing
evidence to support the grounds for termination of Mother’s
parental rights?
2. Did the trial court err in finding that terminating Mother’s
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parental rights was in the child’s best interest?
III. STANDARD OF REVIEW
Under both the United States and Tennessee Constitutions, 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). Thus, the state may
interfere with parental rights only when a compelling interest exists. Nash–Putnam, 921
S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our 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., Nos. M2004-00999-COA-R3-PT,
M2004–01572–COA–R3–PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)
(citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights 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 D.L.B., 118 S.W.3d 360,
367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
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. Accordingly, both the grounds for termination
and the best interest inquiry must be established by clear and convincing evidence. Tenn.
Code Ann. § 36-3-113(c)(1); 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). 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. at 653.
In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo with
a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
When the resolution of an issue in a case depends on the truthfulness of witnesses, the trial
judge who has had the opportunity to observe the witnesses and their manner and demeanor
while testifying is in a far better position than this Court to decide those issues. See
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); McCaleb v. Saturn
6
Corp., 910 S.W.2d 412, 415 (Tenn.1995). The weight, faith, and credit to be given to any
witness’s testimony lies in the first instance with the trier of fact, and the credibility accorded
will be given great weight by the appellate court. See Whitaker, 957 S.W.2d at 837;
McCaleb, 910 S.W.2d at 415; Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
IV. GROUNDS FOR TERMINATION OF MOTHER’S PARENTAL RIGHTS
A. Severe Child Abuse
In Tennessee, a court may terminate parental rights when:
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 or the petition for adoption 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 child residing temporarily or permanently in the home
of such parent or guardian.
Tenn. Code Ann. § 36-1-113(g)(4). “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)(21)(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 the
Tennessee Department of Children’s Services of its obligation to preserve and reunify the
child with the parents. Tenn. Code Ann. § 37-1-166(g)(4)(A).
In its October 16, 2012 order, the trial court found that the S.G.S. was dependent and
neglected under Tennessee Code Annotated Section 37-1-129(a) in that she “suffered from
abuse and/or neglect” and was the victim of “severe child abuse as defined at T.C.A.37-1-
102[(b)](23)(A)(i) and (ii), (B) and (D), perpetrated by [T.S.].” The trial court’s finding of
7
dependency and neglect was based, in part, on the evidentiary deposition of Dr. Lisa Piercey,
who is an expert in the area of “child maltreatment.” Dr. Piercey’s deposition was admitted
into evidence, without objection, at the dependency and neglect hearing. Dr. Piercey
testified that she had reviewed all of the medical records that were produced at or near the
time of S.G.S.’s birth. She stated that Mother’s positive urine test could have reflected drug
use seven-to-ten days before S.G.S. was born. Concerning the child’s hair follicle test, Dr.
Piercey stated:
This hair follicle goes back as long as sixty days. This child was
not even three weeks old at the time of this collection. So
certainly [it] could have gone back during the pregnancy.
Based upon the timing of the drug screens, Dr. Piercey specifically stated that “both the
[M]other’s drug screen and the infant’s drug screen were consistent with prenatal drug use.”
Dr. Piercey also stated that given the fact that the child’s hair was taken for testing several
days after she was born, the positive results of the drug test could also indicate post-natal
exposure to drugs.
Concerning the effects of methamphetamine exposure on S.G.S., Dr. Piercey opined that:
This exposure [to methamphetamine] would be classified as
severe physical abuse and from a physician’s standpoint my
definition of [severe physical abuse] is life threatening at any
point[]. . .or potentially life altering, which [this exposure]
certainly could be. And the effects we may not know yet.
Dr. Piercey further testified that even one exposure to methamphetamine could produce
severe psychosis, severe neurotic disorder, severe depression, severe developmental delay,
retardation, or severe impairment of the child’s ability to function adequately in his or her
environment.
In addition to the results of the drug screens, the trial court also based its adjudication of
dependency and neglect upon Mother’s admission that she used “methamphetamine after her
pregnancy.” The court noted that Mother denied using any illegal drugs during the
pregnancy. However, the court stated that it based its determination on the fact that “Metro
Narcotics had found a methamphetamine lab in a shed located in the backyard of [Mother’s]
home. . . [and the fact that Mother had subsequently been] arrested and charged with
initiation manufacturing methamphetamine, possession of methamphetamine and child
endangerment.”
8
The trial court’s October 16, 2012 order specifically states that it is a final order regarding
the disposition of the child as dependent and neglected on the ground of severe child abuse.
Mother did not appeal the final disposition or the finding of severe abuse. It is well-settled
that 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). Accordingly, where
a parent “had a full and fair opportunity to litigate th[e] issue [of severe abuse] in the prior
suit” and “chose not to appeal the court's order in the prior action,” 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. March 31, 1995). Because Mother did not appeal the trial court's finding of severe child
abuse within the time allowed by law, the order became a final order and the finding of
severe child abuse is res judicata. Thus, the trial court did not err in finding that Mother has
committed severe abuse for purposes of terminating her parental rights.
B. Persistence of Conditions
Although only one ground must be proven by clear and convincing evidence to justify
termination of parental rights, the Tennessee Supreme Court has directed this Court to review
the findings of fact and conclusions of law as to each ground for termination in order to avoid
unnecessary remand. See In re Angela E., 303 S.W.3d 240, 251 n. 14 (Tenn.2010).
Accordingly, we will consider the issue of whether the evidence clearly and convincingly
supports the finding of persistence of conditions.
The ground of persistence of conditions requires the trial court to find, by clear and
convincing evidence, that:
(3) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child's safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at any early date so that the child can be safely
returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child's chances of early
9
integration into a safe, stable and permanent home.7
Tenn. Code Ann. § 36–1–113(g).
The goal of the persistence of conditions ground is to avoid having a child in foster care for
a time longer than reasonable for the parent to demonstrate his or her ability to provide a safe
and caring environment for the child. In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct.
App.2010). Persistence of conditions focuses “on the results of the parent's efforts at
improvement rather than the mere fact that he or she had made them.” In re Audrey S., 182
S.W.3d 838, 874 (Tenn. Ct. App. 2005). The question before the court is “the likelihood that
the child can be safely returned to the custody of the mother, not whether the child can safely
remain in foster care....” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959,
at *5 (Tenn. Ct. App. July 21, 2000).
The persistence of conditions ground may only be applied “where the prior court order
removing the child from the parent’s home was based on a judicial finding of dependency,
neglect, or abuse.” In re Audrey S., 182 S.W.3d at 877. As noted above, the trial court
adjudicated S.G.S. to be dependent and neglected by order of October 16, 2012, and that
order was not appealed.
In addition to a previous adjudication of dependency and neglect, in order to terminate
parental rights on the ground of persistence of conditions, each of the statutory elements that
make up the ground known as persistence of conditions must be established by clear and
convincing evidence. In re Valentine, 79 S.W.3d 539, 550 (Tenn.2002). Concerning the
ground of persistence of conditions, in its order terminating Mother’s parental rights, the trial
court found, in pertinent part, as follows:
7
We note that termination on the ground of persistence of conditions usually
implicates DCS’s obligation to demonstrate that it made reasonable efforts to reunite the
child and parent. In re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL
438326, n. 27 (Tenn. Ct. App. Mar. 9, 2004). When DCS’s obligation to make reasonable
efforts is implicated, DCS must prove by clear and convincing evidence that it made
reasonable efforts. In re R.L.F., 278 S.W.3d 305, 316 (Tenn. Ct. App.2008). However,
because Mother was found to have committed severe child abuse, DCS was relieved of
making reasonable efforts toward reunification with Mother in this case. Tenn. Code Ann.
§ 37-1-166(g)(4)(A) (providing that DCS may be relieved of its duty to make reasonable
efforts after a court finds “aggravating circumstances,” including “severe child abuse”).
Accordingly, we will not address the question of reasonable efforts on the part of DCS in this
appeal.
10
27. The Court further finds by clear and convincing evidence
that [the ground of] persistence of conditions has been met.
28. The Court finds that pursuant to T.C.A. §36-1-113(g)(3):
The child has been removed from the home of the parent by
order of the court for a period of six (6) months and: (A) The
conditions that led to the child’s removal or other conditions that
in all reasonable probability would cause the child to be
subjected to further abuse or neglect and that, therefore, prevent
the child’s safe return to the care of the parent(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned
to the parent(s) in the near future; and (C) The continuation of
the parent and child’s relationship greatly diminishes the child’s
chance of early integration into a safe, stable and permanent
home.
29. The conditions that prevent the return of [S.G.S.] to the
mother’s home include, but are not limited to: continued drug
usage, continued incarceration; and unsafe living conditions.
It is undisputed that the S.G.S.has been removed from Mother’s home since June 6, 2012.
The now-two-year-old child has been living with her foster parents since she was barely a
month old. The trial court found sufficient evidence to conclude that the conditions that led
to the child's removal, i.e., Mother's drug use, her continued incarceration, and her unsafe
living conditions, still persist and will, in all reasonable probability, subject the child to
further abuse if custody is returned to the Mother.
Turning to the record, since S.G.S. was removed from her custody, Mother has tested
positive for marijuana use, which resulted in revocation of her appeal bond. In addition,
Mother has been arrested for felony vandalism, vandalism, and domestic assault; all of these
charges were pending at the time of the hearing on the termination of Mother’s parental
rights. Concerning the domestic assault charge, Mother testified that she had hit her
husband, M.S., with a bat. At the hearing, she further testified that she is still married to
M.S., and she expressed no plans to leave him. In addition, Mother testified that her address
is the same property where the methamphetamine lab was discovered in the backyard shed.
Appellant’s daughter, L.S., testified that she and her fiancé live at this property with five
children. The residence is a three bedroom home, and L.S. stated that all of the rooms are
full. Mother testified that she would find another place to live, or would live in a trailer on
the same property if custody is returned to her.
Based upon the totality of the circumstances, we conclude that the ground of persistence of
11
the conditions that led to the child’s removal from Mother’s custody are proven by clear and
convincing evidence. Given her continued drug use, her pending criminal charges, and her
lack of a suitable home for the minor child, it does not appear that these conditions will be
remedied at any early date.
V. BEST INTEREST
When at least one ground for termination of parental rights has been established, the
petitioner must then prove by clear and convincing evidence that termination of the parent's
rights is in the child's best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.
App.1994). When a parent has been found to be unfit (upon establishment of ground(s) for
termination of parental rights), the interests of parent and child diverge. In re Audrey S ., 182
S.W.3d at 877. The focus shifts to the child’s best interest. Id. at 877. Because not all
parental conduct is irredeemable, Tennessee’s termination of parental rights statutes
recognize the possibility that terminating an unfit parent’s parental rights is not always in the
child’s best interest. Id. However, when the interests of the parent and the child conflict,
courts are to resolve the conflict in favor of the rights and best interest of the child. Tenn.
Code Ann. § 36–1–101(d). Further, “[t]he child's best interest must be viewed from the
child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at 194.
The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are 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
12
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.
Tenn. Code Ann. § 36–1–113(i). This Court has noted that “this list [of factors] 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 rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending
on the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child's best interests 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. The relevancy and
weight to be given each factor depends on the unique facts of
each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one
factor may very well dictate the outcome of the analysis.
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
In its December 4, 2013 order terminating Mother’s parental rights, the trial court made the
following findings concerning the S.G.S.’s best interest:
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31. The Court finds that Mother has made no adjustment in her
circumstances, in that she is currently incarcerated on a
methamphetamine conviction out of Madison County,
Tennessee and is awaiting disposition of new charges of
domestic assault, vandalism and felony vandalism out of
Henderson County, Tennessee.
32. The Court finds that there has been no substantial bond
established between Mother and child because the child was
removed from the home at the age of five-weeks old.
33. The Court also finds that the Mother’s current physical
environment is neither proper nor safe for the child due to the
fact that Mother still resides in the home where a
methamphetamine lab was discovered in an outside shed on the
property and where methamphetamine residue was found inside
of the home.
34. The Court further finds that the minor child needs to reside
in a stable, non-volatile home where she is properly cared for,
all of her medical and physical needs are met and she is able to
thrive.
* * *
39. [S.G.S.] is placed in a home with custodians that wish to
adopt her and provide her with permanency.
40. The child has established a strong bond with the [foster
parents] and their four children and has “come out of her shell”
and “holds her own in a room.” [S.G.S.] has become a special
part of their family and the children consider her as their little
sister.
Although Mother argued during her testimony that she has a bond with S.G.S., the evidence
suggests otherwise. As noted above, since the age of five weeks, the child has not been in
Mother’s custody. Mother testified that she sees S.G.S. “every chance she has,” but there is
no indication in the record that the visitation has been anything but sporadic. In addition,
as discussed in greater detail above, even in the face of losing custody of her child, Mother
has continued to embroil herself in actions that have resulted in her arrest and incarceration
during the pendency of these proceedings. She has not obtained stable housing, and insists
that she and the child will be able to live in a three-bedroom home with seven other people–a
home where methamphetamine was being manufactured in the backyard and residue was
found inside the home. Furthermore, Mother has expressed her intent to remain with her
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husband, M.S., despite the fact that there has been a history of violence between M.S. and
Appellant.
On the other hand, the child’s foster mother testified that the child is thriving in her current
environment. The evidence indicates that the child has some special needs, including weekly
speech therapy and regular doctor’s appointments. The evidence shows that the foster
parents are very hands-on with this child. They ensure that S.G.S. not only receives all
necessary medical intervention, but they also follow up with any recommendations made by
doctors and therapists. The foster mother testified that when the child first arrived in the
foster home, at approximately five weeks old, she was withdrawn and slept much more than
most children her age. The child had developmental delays that kept her from crawling or
walking at the usual age. However, the foster parents have worked with S.G.S., and, at the
time of the hearing, the child was thriving in their care. Given the child’s medical issues, the
foster mother testified that it is imperative for her to be in a stable, non-chaotic environment.
From the totality of the circumstance, it does not appear that Mother will be able to provide
such environment at any early date. Accordingly, to remove the child from the only stable
home she has known would likely have a negative impact on her future development. From
the record, and in light of the foregoing factors, we conclude that there is clear and
convincing evidence in the record to support the trial court’s finding that it is in S.G.S.’s best
interest for Mother’s parental rights to be terminated.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the trial court. The case is remanded for
such further proceedings as may be necessary and are consistent with this opinion. Costs of
the appeal are assessed against the Appellant/Mother, T.S. Because Mother is proceeding
in forma pauperis in this appeal, execution may issue for costs if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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