In Re: Lorenda B. ( 2017 )

04/19/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 1, 2017
IN RE: LORENDA B.
Appeal from the Juvenile Court for Davidson County
No. 211759 Sheila Calloway, Judge
No. M2016-01841-COA-R3-PT
This appeal concerns the termination of a mother’s parental rights to her minor child.
The Tennessee Department of Children’s Services (“DCS”) filed a petition in the
Juvenile Court for Davidson County (“the Juvenile Court”) seeking to terminate the
parental rights of Judith B. (“Mother”) to her minor child Lorenda B. (“the Child”).
Mother has alleged throughout this case that there is a satanic conspiracy against her and
that the Child is at risk of having her organs harvested for trafficking purposes. After a
trial, the Juvenile Court terminated Mother’s parental rights. Mother appeals to this
Court. We affirm the grounds of substantial noncompliance with the permanency plan
and mental incompetence, but we reverse the grounds of willful failure to support and
persistence of conditions.1 We also affirm the Juvenile Court’s finding that termination
of Mother’s parental rights is in the Child’s best interest. We affirm, in part, and reverse,
in part, the judgment of the Juvenile Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed, in Part, and, Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and KENNY W. ARMSTRONG, JJ., joined.
Nick Perenich, Nashville, Tennessee, for the appellant, Judith B.
Herbert H. Slatery, III, Attorney General and Reporter, and, Alexander S. Rieger,
Assistant Attorney General, for the appellee, the Tennessee Department of Children’s
Services.
John E. Evans, Guardian Ad Litem.
1
The Child’s father’s parental rights are not at issue in this appeal, only Mother’s.
OPINION
Background
The Child was born to Mother in March 2005. DCS became involved in the
Child’s life in November 2013 because of Mother’s alleged erratic behavior and the
Child’s not receiving sufficient education. The Child was placed with a family for a
period of time but that arrangement ended. The Child entered DCS foster care. In June
2014, the Juvenile Court magistrate found the Child dependent and neglected. After a
rehearing before the Juvenile Court, the Child in November 2015 again was found
dependent and neglected. That order was appealed to Circuit Court, and that appeal was
not decided as of the entry of the final order in this parental termination action.
Mother has been evaluated by psychologists on multiple occasions. In 2002, a
psychologist who evaluated Mother opined that Mother suffered from “subtle thought
disorder” which involves paranoid tendencies. In 2015, two doctors diagnosed Mother
with “unspecified schizophrenia spectrum and other psychotic disorder.” Two
permanency plans were designed for Mother. These plans required Mother, among other
things, to obtain a legal source of income and stable housing, undergo a psychological
evaluation and follow all recommendations, and, undergo a mental health assessment and
follow all recommendations. Initially, visitation was ordered, but this was suspended
after the Child allegedly expressed a desire that the visitation cease.
In October 2015, DCS filed a petition in the Juvenile Court seeking to terminate
Mother’s parental rights to the Child. Trial was held over the course of five days in
March and July of 2016. The testimony at trial ranged far afield as to Mother’s history
and general beliefs. We summarize only the pertinent testimony from key witnesses.
Mother testified. Mother stated that she worked temporary jobs. Mother, once
homeless, had lived at an apartment for about six months leading up to trial. Mother
receives food stamps. Mother, citing her religious beliefs, refused to take any medication
to address her mental health issues. A recurring theme from Mother over the course of
trial was her adamant belief that sinister forces threatened her and the Child. Mother
testified at trial as follows:
Q. (By Mr. Perenich) were you ever evaluated for possible medication
regarding mental health issues?
A. At the beginning of this case, there was some sort of an evaluation I
would not consider. But, yes, I did cooperate and show up for the
appointment.
Q. Now --
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A. I’m not depressed. I don’t cry.
Q. No. I’m just asking if you cooperated with the evaluation.
A. I’m not sitting around moping and crying. I don’t need antidepressants.
I don’t want them.
Q. Do you believe that you’ve completed the permanency plan DCS has set
forth for you to do to get [the Child] back?
A. I believe that DCS has taken my daughter prisoner, and I should not
have to complete the plan. I believe that I have been denied due process of
law in a timely fashion. They failed to do an adequate investigation.
They should have talked with my father and the father of my first
two sons who bribed the judge to use a false psych. eval. against me. I think
that was a good psych. eval. They discarded it after Jeff bribed the judge,
and they replaced it with a faulty one.
I’m not denying that I have need for counseling. But I have sought
counsel, and I have found it, and I have been ministered to it, by it. It has
been helpful to me. I have received miraculous, medically-documented
healing.
Subpoena my doctor, Clarissa Arthur. Ask her about it. Did I
receive a miracle, was I really sick, and did I get really well? Yes, I did.
So I must be doing something right.
You should be asking me, how did you come from being a satanic
ritual abuse survivor who was bleeding to death for years on her cycle and
not able to work, to a mom that is able to endure this kind of stress, bear up
under it, and still have a good attitude and live with hope and work and be
well-respected and well-received and appreciated by many people who
know me.
They should be taking notes. Why is it that signs and wonders are
following me, and what are those signs saying? Because God has given us
grace, and we all need it desperately. And we need to work together, not
against each other.
Q. Do you have any concerns about [the Child’s] care at the present time in
DCS custody?
A. Yes. I have great concern. I feel that God has given us a three-year
window to get it together here, to get it right. And if it were to go beyond
that, I would fear for her life. I would fear for her becoming a victim of
organ trafficking. I have been concerned that there may have been sexual
abuse in the [Ms’] home.
There are tangible reasons I can point to that were circumstantial
evidences that were extremely upsetting, but I’m not quite as concerned
about that. Pardon me?
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Q. You said you’ve got tangible reasons why she might be a victim of
sexual abuse?
A. Yeah --
Q. What are those?
A. -- the yeast infection and the doctor’s visit. The way DCS responded to
the doctor’s referral was very inappropriate and distorted. It’s very
suspicious. Why would they do that? Why would they try to accuse me of
coercing the doctor to make a referral? That’s absurd. Get the doctor in
here to testify.
***
Q. And you are aware that one of the requirements is to see a psychiatrist;
correct?
A. Not acutely aware. I mean, I actually probably have skimmed over that
assessment, knowing that it is faulty from the foundation up.
Q. So basically no matter what it says, you’ve felt no obligation to call; am
I accurate?
A. I’m not impressed with a foundationally faulty assessment. It’s more
provoking than it is helpful, and I have tried to spare myself of being
provoked.
Q. Do you have any intention of following the recommendations of that
assessment?
A. I have every intention of taking good care of my mental, spiritual,
emotional health, and my physical health. And I will do whatever it takes
to do so. I am well connected with the Most High King, Jesus Christ, and
He informs me and points me where to go, how to get what, and I most of
the time obediently do it.
Q. I’m going to ask one more time. Do you have any intentions of
following the recommendations of the --
A. Not necessarily.
Kirsten Cromie (“Cromie”), a DCS caseworker assigned to the Child’s case,
testified. Cromie testified that Mother had obtained stable housing. However, according
to Cromie, Mother had failed to follow the recommendations from her psychological
assessment. Cromie stated that Mother had very strict requirements for accepting a
counselor. Mother had discontinued at least one course of counseling because the
counselor was not knowledgeable about satanic ritual abuse.
Keionia Ervin (“Ervin”), Mother’s supervised visitation worker through LifeCare
Services, testified. Ervin testified to an incident during one visit where Mother told the
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Child: “Tell them that you don’t want your organs to be donated if you are adopted, and,
like, whatever the judge decides, like, we hope that she just has the right heart to decide
the correct outcome of this case. And if she doesn’t, then a higher power will deal with
her.”
In August 2016, the Juvenile Court entered its final judgment terminating
Mother’s parental rights. The Juvenile Court found the grounds of willful failure to
support, persistent conditions, substantial noncompliance with the permanency plan, and
mental incompetence. The Juvenile Court also found that termination of Mother’s
parental rights is in the Child’s best interest. As relevant, the Juvenile Court stated the
following in its final judgment:
9. DCS became involved with this family in November 2013 due to
dependency and neglect based on [Mother’s] mental health issues, erratic
behaviors and [the Child’s] lack of education. DCS conducted a Child and
Family Team Meeting in November and determined that Mr. and Mrs.
Brandon and Christina [S.] were appropriate placement options. DCS,
[Mother] and the [S’s] entered into an Immediate Protection Agreement
that allowed [the Child] to remain in their home until further proceedings.
10. On February 13, 2014, the child was placed in DCS custody due
to the [S’s] no longer being willing to serve as a safety placement. They
made that decision based on the inappropriate behavior of [Mother],
including her inappropriate conversations with [the Child] and an
inappropriate 17 page letter that she sent to the [S’s].
11. The child was adjudicated to be dependent and neglected on
April 1, 2014 by the Juvenile Court of Davidson County, Tennessee by
Magistrate Melinda Rigsby. The matter was reheard by Judge Sheila D. J.
Calloway and the child was again adjudicated to be dependent and
neglected. According to the Order of Adjudication, the child was found to
be a dependent/neglected child pursuant to T.C.A. §37-1-102(b)(12)(C)(F)
& (G) due to the mother failing to have the child enrolled in an appropriate
and approved education program and her unaddressed mental health issues
which render her unable to properly provide for the child.2 The child has
remained continuously in foster care since February 13, 2014.
12. DCS filed a petition to terminate both parents’ parental rights on
October 13, 2015.
2
The decision in that case has been appealed to the Circuit Court. There has been no decision on the
appeal.
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Findings of Fact
13. The initial permanency plan dated March 10, 2014 and ratified
by the Court on May 20, 2014, required the following of the mother:
complete a mental health assessment and follow all recommendations; have
a legal source of income; have stable housing; and ensure that [the Child]
attends school and participates in classroom activities and assignments.
14. The revised permanency plan dated on February 3, 2015 and
ratified by the Court on March 3, 2015, required the following of Mother:
complete a mental health assessment and follow recommendations;
complete a psychological assessment and follow recommendations; sign a
release for DCS to access Mother’s mental health records; have a legal
source of income sufficient to provide for the mother and [the Child’s]
needs; notify DCS of any changes in address within 5 days; provide proof
of income; have stable housing that is safe and appropriate for mother and
[the Child] to reside in; and ensure that [the Child] attends school and
participates in classroom activities and assignments.
15. Throughout the time that the child has been in the custody of
DCS, there have been reasonable efforts to assist the mother in complying
with the requirements of the permanency plan. DCS has assisted the
mother in obtaining mental health services through three agencies:
Centerstone, Life Cares, and Athena Consulting. Mother has refused to
follow through with the recommendations of any of the providers. Mother
insists that the providers can not address her issues unless they provide a
Christian counselor with a background in satanic rituals. Mother has not
given proof of employment although she testified that she is currently
employed.
16. [The Child] is currently 11 years old. During her life, she has had
very little contact with her father. Her mother continues to have
inappropriate behavior and conversations with [the Child]. In fact, during
the pendency of these proceedings, the mother sent [the Child] a key to her
residence with directions, money and a bus pass so that the child would be
able to leave her placement to come and live with her. She has also had
numerous inappropriate conversations with the child about her belief that
DCS intends to sell the child’s body parts once she is placed for adoption.
17. In both plans for [Mother], the tasks were reasonable and related
to the conditions that necessitated foster care for the child, and they were
tasks that needed to be accomplished in order for the mother to regain
custody.
18. As for [Mother], there was a period of time that she was in
compliance with some of the requirements of her plan. In fact, the mother
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currently has stable housing and employment. However, the mother has
not been able to substantially comply with some of the major parts of the
permanency plans, particularly the need for her to address her mental health
issues and follow all the recommendations.
19. The child was removed from the home February 13, 2014. The
Mother’s conditions that led to the removal were primarily unaddressed
mental health issues. The Father’s conditions that led to the removal were
abandonment. Nothing has changed since the initial removal because
neither parent has done enough to address their issues. Thus, those
conditions still persist today, and there is little likelihood that these
conditions will be remedied at an early date so that the child can be
returned to either parent in the near future. Moreover, continuing the
parent-child relationship with either parent greatly diminishes the
likelihood of achieving permanency for the child soon.
20. Regarding the best interests of the child, the Court has
considered the nonexclusive factors found at T.C.A. §36-1-113(i) and
makes the following findings of fact:
a. Neither parent 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 their
home.
b. The mother has failed to effect a lasting adjustment after reasonable
efforts where made available by DCS. Furthermore, lasting adjustment does
not reasonably appear possible.
c. Father has not maintained regular visitation or other contact with the
child.
d. A meaningful relationship has not otherwise been established between
the child and the father.
e. A change of caretaker and physical environment is likely to have a
negative effect on [the Child’s] emotional, psychological and/or medical
conditions.
f. The mother’s mental and emotional status would be detrimental to the
child and prevent her from effectively providing safe and stable care and
supervision for the child.
g. Neither parent has been able to consistently support the child financially
while she has been in foster care.
h. The child is currently placed in a foster home that wishes to adopt the
child and the child has established a strong bond with the foster parents.
Thus, terminating the parental rights of both the Mother and the
Father is in the best interest of the child.
(Footnote in original but renumbered). Mother timely appealed to this Court.
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Discussion
We restate the issues raised by Mother on appeal as follows: 1) whether the
Juvenile Court erred in finding the ground of willful failure to support; 2) whether the
Juvenile Court erred in finding the ground of persistent conditions; 3) whether the
Juvenile Court erred in finding the ground of substantial noncompliance with the
permanency plan; 4) whether the Juvenile Court erred in finding the ground of mental
incompetence; and, 5) whether the Juvenile Court erred in finding that termination of
Mothers parental rights is in the Child’s best interest.3
As our Supreme Court instructed:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state constitutions.4 Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E., 303
S.W.3d at 250. “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental liberty interest,
but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388. “Few
consequences of judicial action are so grave as the severance of natural
family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S.
102, 119, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The parental rights at
3
The Juvenile Court did not find the ground alleged of failure to provide a suitable home, therefore we
need not address it.
4
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”
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stake are “far more precious than any property right.” Santosky, 455 U.S.
at 758-59, 102 S. Ct. 1388. Termination of parental rights has the legal
effect of reducing the parent to the role of a complete stranger and of
“severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(I)(1); see also Santosky, 455
U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder
to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than
not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
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.
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This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds5 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,6 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion
of the statute requires a trial court to make “findings of fact and conclusions
of law as to whether clear and convincing evidence establishes the
existence of each of the grounds asserted for terminating [parental] rights.”
In re Angela E., 303 S.W.3d at 255. “Should the trial court conclude that
clear and convincing evidence of ground(s) for termination does exist, then
the trial court must also make a written finding whether clear and
convincing evidence establishes that termination of [parental] rights is in
the [child’s] best interests.” Id. If the trial court’s best interests analysis “is
based on additional factual findings besides the ones made in conjunction
with the grounds for termination, the trial court must also include these
findings in the written order.” Id. Appellate courts “may not conduct de
novo review of the termination decision in the absence of such findings.”
5
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
6
Tenn. Code Ann. § 36-1-113(i).
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Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn.
Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened
burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount
to clear and convincing evidence of the elements necessary to terminate
parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s
ruling that the evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela E., 303 S.W.3d at
246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).
Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Our Supreme
Court, however, has instructed “that in an appeal from an order terminating parental
rights the Court of Appeals must review the trial court’s findings as to each ground for
termination and as to whether termination is in the child’s best interests, regardless of
whether the parent challenges these findings on appeal.” In re: Carrington H., 483
S.W.3d at 526-27 (footnote omitted). As such, we review each of the grounds for
termination.
Four grounds for termination of parental rights are implicated on appeal. As
pertinent, Tenn. Code Ann. § 36-1-113(g)(1) provides:
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(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:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2016).
Regarding willful failure to support, Tenn. Code Ann. § 36-1-102 provides:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the parental
rights of the parent or parents or the guardian or guardians of the child who
is the subject of the petition for termination of parental rights or adoption,
that the parent or parents or the guardian or guardians either have willfully
failed to visit or have willfully failed to support or have willfully failed to
make reasonable payments toward the support of the child;
Tenn. Code Ann. § 36-1-102(1)(A)(i) (Supp. 2016).
Regarding substantial noncompliance with the permanency plan, Tenn. Code Ann.
§ 36-1-113(g)(2) provides:
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4;
Tenn. Code Ann. § 36-1-113(g)(2) (Supp. 2016).
As to persistence of conditions, Tenn. Code Ann. § 36-1-113(g)(3) provides:
(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:
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(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 or parents or guardian or guardians, 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 or parents
or the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable
and permanent home;
Tenn. Code Ann. § 36-1-113(g)(3) (Supp. 2016).
Finally, regarding the ground of mental incompetence, Tenn. Code Ann. § 36-1-
113(g)(8) provides:
The chancery and circuit courts shall have jurisdiction in an adoption
proceeding, and the chancery, circuit, and juvenile courts shall have
jurisdiction in a separate, independent proceeding conducted prior to an
adoption proceeding to determine if the parent or guardian is mentally
incompetent to provide for the further care and supervision of the child, and
to terminate that parent’s or guardian’s rights to the child;
(B) The court may terminate the parental or guardianship rights of that
person if it determines on the basis of clear and convincing evidence that:
(i) The parent or guardian of the child is incompetent to adequately provide
for the further care and supervision of the child because the parent’s or
guardian’s mental condition is presently so impaired and is so likely to
remain so that it is unlikely that the parent or guardian will be able to
assume or resume the care of and responsibility for the child in the near
future; and
(ii) That termination of parental or guardian rights is in the best interest of
the child;
(C) In the circumstances described under subdivisions (8)(A) and (B), no
willfulness in the failure of the parent or guardian to establish the parent’s
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or guardian’s ability to care for the child need be shown to establish that the
parental or guardianship rights should be terminated;
Tenn. Code Ann. § 36-1-113(g)(8) (Supp. 2016).
We first address whether the Juvenile Court erred in finding the ground of willful
failure to support. DCS concedes this ground was not proven, stating in its brief that “the
trial court failed to render findings of fact that Mother failed to remit the required support
during the four-month period and the record does not clearly and convincingly prove as
such regardless.” From our own review of the review, we agree. The evidence in the
record on appeal is not clear and convincing as to the ground of willful failure to support,
particularly with respect to the crucial four-month period before the filing of the petition.
We, therefore, reverse the ground of willful failure to support.
We next address whether the Juvenile Court erred in finding the ground of
persistent conditions. DCS likewise concedes this ground was not proven,
acknowledging that there is an outstanding appeal to Circuit Court of the Juvenile Court’s
dependency and neglect order. This Court previously has stated:
If the order outlining the conditions that led to the removal of the child, i.e.,
the dependency and neglect order, is pending appeal, that order is not res
judicata. Accordingly, until the dependency and neglect order has reached
its “final completion,” Swift v. Campbell, 159 S.W.3d 565, 573 (Tenn. Ct.
App. 2004), either because there has been no appeal, or through the
exhaustion of all appellate remedies, we hold that the prior order, which is
not res judicata, cannot form the basis, standing alone, for termination of
parental rights on any ground that contemplates reliance on a previous
finding or order. Because there is no evidence in our record from which we
can determine the current posture of Appellant's appeal from the Juvenile
Court’s order on dependency and neglect, and based upon the foregoing
analysis, we conclude that the trial court erred in terminating Appellant’s
parental rights on the ground of persistence of conditions. Accordingly, we
reverse the trial court’s termination of Appellant’s parental rights on this
ground.
In re S.S.-G., No. M2015-00055-COA-R3-PT, 2015 WL 7259499, at *8 (Tenn. Ct. App.
Nov. 16, 2015), no appl. perm. appeal filed.
Upon review of the entire record, we conclude that the ground of persistent
conditions is not established by the requisite standard of clear and convincing evidence.
We, therefore, reverse the ground of persistent conditions.
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We next address whether the Juvenile Court erred in finding the ground of
substantial noncompliance with the permanency plan. As opposed to the ground of
persistent conditions, we find no case law or statutory language requiring a final prior
order on abuse, dependency or neglect in order to establish the ground of substantial
noncompliance with the permanency plan.
While Mother maintained a legal source of income, she remains uncooperative in
the most significant responsibility of her permanency plan, addressing her mental health
issues. Mother’s own testimony is that she has refused steadfastly to take any medication
for her mental health condition, regardless of whether doctors prescribe it. Mother has
put exceedingly strict criteria upon whom she will consent to see for therapy, including
her strong desire to find a counselor well-versed in satanic ritual abuse cases. As found
by the Juvenile Court, “the mother has not been able to substantially comply with some
of the major parts of the permanency plans, particularly the need for her to address her
mental health issues and follow all the recommendations.” The evidence does not
preponderate against this finding. The Juvenile Court found further that: “In both plans
for [Mother], the tasks were reasonable and related to the conditions that necessitated
foster care for the child, and they were tasks that needed to be accomplished in order for
the mother to regain custody.” Given the centrality that Mother’s mental health issues
have in this case, we agree with this assessment of reasonableness as well. We find, as
did the Juvenile Court, that the ground of substantial noncompliance with the
permanency plan has been established by clear and convincing evidence. We affirm as to
this ground.
We next address whether the Juvenile Court erred in finding the ground of mental
incompetence. Mother argues that no substantial harm has been visited upon the Child
because of Mother’s mental condition. Mother also argues that previous psychological
assessments of Mother, in 2002 and 2015, are too remote in time or did not conclude that
Mother is incompetent to parent the Child. Mother points out that no expert opinion on
Mother’s mental health and its impact on her ability to parent the Child was presented at
trial.
The standard for this issue has been described as inquiring as to whether “by clear
and convincing evidence that the parent of the child is incompetent to adequately provide
care and supervision because the parent’s mental condition is so impaired and likely to
remain so that it is unlikely that the parent will be able to assume care and responsibility
for the child in the future.” State Dept. of Children’s Services v. Whaley, No. E2001-
00765-COA-R3-CV, 2002 WL 1116430, at *14 (Tenn. Ct. App. May 30, 2002), no appl.
perm. appeal filed. This Court has affirmed this ground, in one instance, where the
parent “functioned in such a low range that no amount of training, education, or
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counseling ‘could bring him up to the level where he could parent these children.’” State,
Dept. of Children’s Services v. Mims, 285 S.W.3d 435, 449 (Tenn. Ct. App. 2008).
“[E]xpert testimony on the effect of a parent’s mental illness on his or her ability to
parent a child is not required.” In re Shaneeque M., No. E2014-00795-COA-R3-PT,
2014 WL 6499972, at *9 (Tenn. Ct. App. Nov. 20, 2014), Rule 11 perm. app. denied Feb.
20, 2015.
No expert testified at trial as to Mother’s mental condition. However, evidence in
the record on appeal reflects that on different occasions, Mother has been diagnosed with
or shown signs of suffering from “subtle thought disorder,” “unspecified schizophrenia
spectrum and other psychotic disorder,” and anxiety disorder. Apart from those
considerations, perhaps the most glaring evidence concerning this issue comes from
Mother’s own testimony at trial. Mother testified at great length about her concerns over
her or the child being victimized by human organ traffickers, satanic conspirators, and
other alleged nefarious forces. This is, of course, a free society, and Mother is entitled to
her personal beliefs. However, as pertains to the Child’s welfare, these beliefs and
patterns of thinking have serious ramifications that are of public concern. In our
judgment, Mother’s untreated paranoia prevents her from making well-founded decisions
necessary to successfully parent the Child. To review, DCS became involved in this case
in part because of the Child’s lack of proper education. Any doctor, teacher, or official or
authority of any sort, from Mother’s perspective, could be an organ trafficker or satanic
occultist in disguise. Were Mother to resume parenting the Child, critical decisions
necessary for the Child’s welfare likely would be made in this outlandish context.
Moreover, Mother has shown zero genuine inclination toward remedying her
mental health issues. In fact, as demonstrated by her own testimony, Mother will not
commit to cooperate fully with the recommendations of mental health experts. It is,
therefore, unlikely that Mother’s mental health issues ever could be rectified to an extent
that she could assume responsibility for the care of the Child. We find, as did the
Juvenile Court, that the ground of mental incompetence has been proven by clear and
convincing evidence. We affirm this ground.
The final issue we address is whether the Juvenile Court erred in finding that
termination of Mother’s parental rights is in the Child’s best interest. The evidence does
not preponderate against the Juvenile Court’s findings relative to this issue. The Child is
doing well in her foster home. While there is evidence of a bond of love between Mother
and the Child, this fact is outweighed by the appropriateness of the Child’s current
placement as opposed to the serious hazards implicit in a return to Mother’s care given
Mother’s ongoing and unresolved mental health issues. We find by the standard of clear
and convincing evidence, as did the Juvenile Court, that termination of Mother’s parental
rights is in the Child’s best interest.
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In summary, we reverse the grounds of willful failure to support and persistent
conditions. We affirm the grounds of substantial noncompliance with permanency plan
and mental incompetence. We also affirm the Juvenile Court’s determination that
termination of Mother’s parental rights is in the Child’s best interest. We, therefore,
affirm the Juvenile Court’s termination of Mother’s parental rights.
Conclusion
The judgment of the Juvenile Court is affirmed, in part, and reversed, in part, and
this cause is remanded to the Juvenile Court for collection of the costs below. The costs
on appeal are assessed against the Appellant, Judith B., and her surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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