In Re: Stephen B. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 31, 2013
IN RE STEPHEN B. ET AL.
Appeal from the Juvenile Court for Campbell County
No. J2012-279 Joseph M. Ayers, Judge
No. E2012-02575-COA-R3-PT-FILED-JULY 31, 2013
This is a termination of parental rights case focusing on the minor children (“the Children”)
of Tammy S. (“Mother”). Upon order of the Campbell County Juvenile Court entered
September 19, 2011, the Children were taken into emergency protective custody by the
Tennessee Department of Children’s Services (“DCS”) due to unsanitary conditions in the
family home and concerns regarding inappropriate supervision and medical neglect of one
of the Children. DCS filed a petition seeking to terminate Mother’s parental rights on July
11, 2012. The petition alleged several statutory grounds for termination, including
abandonment based on willful failure to visit the Children, abandonment based on failure to
provide a suitable home, persistent conditions, and substantial noncompliance with the
permanency plan. Following a bench trial conducted October 4, 2012, the trial court
terminated Mother’s parental rights after finding by clear and convincing evidence that (1)
Mother had abandoned the Children due to her failure to provide a suitable home, (2) Mother
had failed to substantially comply with the permanency plan, and (3) the conditions leading
to the Children’s removal persisted. The trial court further found that termination of
Mother’s parental rights was in the Children’s best interest. Mother has appealed. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.
Jordan Long, Knoxville, Tennessee, for the appellant, Tammy S.
Robert E. Cooper, Jr., Attorney General and Reporter, and Leslie Curry, Assistant Attorney
General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s
Services.
OPINION
I. Factual and Procedural History
Mother has two minor children: Stephen, now age ten, and Tyler, age three. DCS has
been significantly involved with this family for several years, dating back to at least 2004.
DCS received numerous referrals regarding Mother’s oldest son, Austin, who attained the
age of majority in 2011. The prior referrals concerning Mother involved allegations of
environmental neglect, lack of proper supervision, medical neglect, physical abuse, and
substantial risk of sexual abuse. Custody of Austin and Stephen was judicially removed in
2004 due to medical neglect and environmental issues. In approximately 2008 or 2009,
Austin and Stephen began living with their maternal aunt and uncle, with Mother residing
there intermittently. In 2010, Austin reported to DCS that his stepfather, Lewis S., hit him
in the back and also struck another minor who was visiting in the home.1
DCS Child Protective Services received a report approximately one week later that
Lewis S. had physically assaulted Mother in the presence of Tyler. At that time, Mother and
Lewis S. were lodging in a motel with Tyler. Mother reported that she and Lewis S. had
argued regarding their finances. The incident resulted in Lewis S. throwing a bottle toward
her. When Mother attempted to use the telephone to call for help, Lewis S. seized the
telephone and wrapped the cord around Mother’s neck.2 At this point, DCS petitioned the
Juvenile Court for a restraining order prohibiting Lewis S. from having any contact with the
Children. A no-contact order was entered. The Child Protective Services (“CPS”) worker
assigned to the case discussed the ramifications of the order with Mother and Lewis S. The
CPS worker also explained generally the process Lewis S. should follow to have the order
dismissed, which included completing an anger management course, obtaining a mental
health evaluation, and attending parenting classes. Lewis S. was also required to undergo
an alcohol and drug assessment, having recently tested positive for marijuana and
methamphetamine.
On September 13, 2011, CPS received a separate referral regarding Stephen.
Stephen’s school reported that he had been experiencing an ongoing problem with defecating
1
Lewis S. is the biological father of Tyler but not the biological father of Mother’s other two
children. Lewis S.’s parental rights regarding Tyler were terminated in a separate judicial proceeding.
2
Mother later recanted her story regarding the telephone, but both she and Lewis S. admitted that
he threw a bottle at her.
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on himself several times daily. The school also noted being unable to contact anyone from
the child’s family to bring clean clothes. With reference to the referral, the CPS worker went
to the school to interview Stephen. Stephen related that his stomach hurt constantly, and that
when he reported this problem to his aunt and Mother, they did not believe him. When the
CPS worker subsequently visited the home to interview Mother, she found the conditions of
the aunt’s home where the Children were residing to be deplorable. She described the
presence of cockroaches “everywhere,” stating that the family’s food supply was infested.
The Children were feeding themselves from cereal boxes that contained cockroaches. In
addition, the bathroom presented a large hole in the floor; the toilet was filled with feces.
The Children were dirty and unkempt, smelling of smoke and urine.
Further, Mother admitted to the CPS worker that she had been aware of Stephen’s
stomach condition for about one month, but due to not feeling overly concerned, “had not
gotten around” to taking Stephen to the doctor. Mother acknowledged that custody of Austin
had been removed in 2004 by reason of a similar problem when the child had to undergo a
surgical procedure to have an impaction removed.
By order of the Juvenile Court, the Children were taken into protective custody by
DCS. They were subsequently adjudicated dependent and neglected due to their living
conditions and because Mother had attempted to “reunify the children with Lewis [S.] against
whom there is a no contact order.” A permanency plan was developed on October 19, 2011,
wherein Mother was required, inter alia, to visit the Children at least 4.3 hours per month,
obtain a mental health assessment and follow any recommendations, abide by the no-contact
order entered against Lewis S., complete parenting classes, and demonstrate appropriate
parenting skills. A second permanency plan was developed in May 2012, which plan
contained substantially identical parental responsibilities.
DCS filed a petition seeking termination of Mother’s parental rights on July 11, 2012.
The petition alleged several grounds for termination, including abandonment based on willful
failure to visit the Children, abandonment based on failure to provide a suitable home,
persistent conditions, and substantial noncompliance with the permanency plan. Following
a bench trial on October 4, 2012, the trial court terminated Mother’s parental rights upon
finding by clear and convincing evidence that (1) Mother had abandoned the Children due
to her failure to provide a suitable home, (2) she had failed to substantially comply with the
permanency plans, and (3) the conditions leading to removal persisted. The trial court
further found that termination of Mother’s parental rights was in the Children’s best interest.
Mother timely appealed.
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II. Issues Presented
Mother presents the following issues for our review, which we have restated slightly:
1. Whether the trial court erred in finding that Mother was in substantial
noncompliance with the permanency plans.
2. Whether DCS made reasonable efforts to reunite Mother and the
Children.
3. Whether the trial court erred in finding that the conditions leading to
removal still persisted at the time of trial.
4. Whether the trial court erred in finding that Mother abandoned her
Children by failing to provide a suitable home.
5. Whether termination of Mother’s parental rights was in the Children’s
best interest.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982)). As our Supreme Court has instructed:
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In light of the constitutional dimension of the rights at stake in
a termination proceeding under Tenn. Code Ann. § 36-1-113,
the persons seeking to terminate these rights must prove all the
elements of their case by clear and convincing evidence. Tenn.
Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d
at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The purpose of this heightened burden of proof is to minimize
the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In
re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and
convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any
serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State Dep’t
of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447
(Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Substantial Noncompliance with Permanency Plans
The trial court, inter alia, terminated Mother’s parental rights on the statutory ground
that she failed to substantially comply with the reasonable responsibilities set out in her
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) (Supp. 2012) provides, as
relevant to this action:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
...
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency
plan pursuant to the provisions of title 37, chapter 2, part 4.
The permanency plans in this case required Mother to: (1) visit the Children regularly
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each month, (2) obtain a mental health assessment and follow any recommendations, (3)
abide by the no-contact order regarding Lewis S. and the Children, and (4) complete
parenting classes and demonstrate appropriate parenting skills.
In its findings regarding Mother’s efforts under the permanency plans, the trial court
stated in relevant portion:
Both permanency plans provided that [Mother] would obtain a mental health
evaluation. DCS testified that [Mother] had a prior mental health assessment
from a previous case and they told her she could use that mental health
evaluation if the documentation was provided. [Mother] and DCS testified
that [Mother] previously signed a medical release for Ridgeview. Both plans
further provided that [Mother] would participate in parenting classes.
Testimony indicated that she has completed the parenting classes.
[Mother] did not make any efforts, until recently, to obtain stable housing. She
continued to reside in the home where the children were removed for a period
of time. She also lived with friends and in other locations that had bed bugs.
She did not make any attempts at finding a home until August, 2012. She
testified that she knew she needed a home but was financially unable to do so
until recently. [Mother] testified that she recently obtained employment and
would receive her first paycheck soon. [Mother] has been with Lewis [S.] on
most occasions when DCS has been to visit. She claims they are divorcing,
however, she has no proof of said divorce. [Mother] and Lewis [S.] have never
made any attempt to have the no contact order lifted. Further [Mother] appears
to have the attitu[de] that Lewis [S.] should be allowed around the children.
[Mother] has stated that her current home is not appropriate for the minor
children. Although the expected outcome achievement date is November 14,
2012, there is little likelihood that [Mother] will complete all of the goals on
the permanency plan. [Mother’s] home cannot be suitable as long as Lewis [S.]
is in the home, and he has failed to resolve his own issues. That alone, is a
fundamental requirement in this case. Therefore, [Mother] is in substantial
noncompliance with the permanency plan and DCS has established by clear
and convincing evidence that the Respondent has failed to substantially
comply with the permanency plans developed in this case.
The proof adduced at trial supports these findings. Mother was required to obtain a
mental health assessment and follow all recommendations. She expressed a desire to utilize
a mental health assessment she had obtained before the Children were removed from her
custody to satisfy this requirement. The evidence established that she never offered any
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documentation regarding this prior assessment to DCS, and she never provided any proof
regarding same at trial. The only assessment that Mother demonstrated having completed
was accomplished on August 23, 2012. This was more than a month after the termination
petition was filed and nearly one year after the Children were taken into protective custody.
Evidence of this assessment, however, was never supplied to DCS.
Mother reported to the DCS family service worker that she had been attending therapy
at Ridgeview. When the DCS worker attempted to verify this information, she was informed
that Mother had not attended Ridgeview since prior to the Children’s removal. Further,
Mother had never completed therapy; she had simply stopped attending sessions. The DCS
worker testified that she repeatedly reminded Mother of the need to have a new assessment
performed because she believed it was the most important requirement in the permanency
plans. She attempted to provide Mother with referrals for completing this task. Mother
refused the assistance, stating that she would simply return to Ridgeview.
Similarly, the plans required Mother to abide by the 2010 no-contact order regarding
Lewis S. and the Children. Although Mother represented to DCS that she and Lewis S. were
working with an attorney to seek its dismissal, the no-contact order remained in effect at the
time of trial. The evidence established that Mother was still living with Lewis S.
intermittently throughout these proceedings. She also had forced Stephen to talk to Lewis
S. on the telephone, telling him they were going to be a “big happy family again.”
Furthermore, Mother delivered a greeting card to the Children during a visit that was signed,
“Love Mommy and Daddy.” Mother voiced her lack of understanding as to why the no-
contact order was in effect. Her testimony clearly demonstrated that she held no intention
of abiding by the court’s directive.
As the trial court determined, Mother also failed to obtain alternative housing until
approximately two weeks before trial. Even then, as she conceded, the home was not suitable
for the care of the Children by reason of a lack of furniture other than a couch. The DCS
family service worker stated that this apartment likewise presented evidence of cockroaches
and that a meager amount of food was observed when she visited. Although the requirement
of having suitable housing was not explicitly listed in the permanency plans, such was
certainly implied, as the plans referenced the Children’s removal due in part to environmental
concerns. The environmental conditions and housing were identified as obstacles to
reunification. Mother testified that she understood her responsibility to obtain proper
housing to regain custody of the Children.
Mother was also required to visit regularly with the Children, at least 4.3 hours per
month. She failed to do so. As the DCS family service worker explained, Mother
accomplished no visits between March 14, 2012, and June 11, 2012. In the months preceding
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this time frame, Mother attended an average of one visit per month, often failing to appear
for visits or canceling at the last minute. The DCS worker could not locate Mother to
schedule a visit for August 2012. Mother also failed to appear for a scheduled visit in
September 2012. Therefore, the only permanency plan requirement with which Mother
complied was the completion of parenting classes. DCS arranged and paid for these classes
to be performed in Mother’s home. Despite completing the classes, Mother failed to engage
the Children during visitation or otherwise demonstrate appropriate parenting techniques.
The evidence in this case does not preponderate against the trial court’s determination, by
clear and convincing evidence, that Mother’s parental rights should be terminated upon the
statutory ground of substantial noncompliance with the permanency plans.
V. Reasonable Efforts by DCS
Mother contends that DCS did not make reasonable efforts to reunify her with the
Children. As this Court has previously stated:
[I]n the absence of aggravating circumstances, [DCS] is statutorily required to
make reasonable efforts to reunite a family after removing children from their
parents’ custody. Tenn. Code Ann. § 37-1-166(a)(2), (g)(2) (2005); In re
M.E., No. M2003-00859-COA-R3-PT, 2004 WL 1838179, at *9 (Tenn. Ct.
App. Aug.16, 2004), perm. app. denied (Tenn. Nov. 8, 2004); In re C.M.M.,
2004 WL 438326, at * 7. Because of this obligation, the Department must not
only establish each of the elements in Tenn. Code Ann. § 36-1-113(g)(3)(A),
it must also establish by clear and convincing evidence that it made reasonable
efforts to reunite the family and that these efforts were to no avail. In re
C.M.M., 2004 WL 438326, at *7 n. 27, *8.
While the Department’s reunification efforts need not be “herculean,” the
Department must do more than simply provide the parents with a list of
services and send them on their way. In re C.M.M., 2004 WL 438326, at *7.
The Department’s employees must use their superior insight and training to
assist the parents in addressing and completing the tasks identified in the
permanency plan.
For the purpose of proceedings such as this one, the Department’s
reunification efforts are “reasonable” if the Department has exercised
“reasonable care and diligence . . . to provide services related to meeting the
needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1) (2005).
The reasonableness of the Department’s efforts depends upon the
circumstances of the particular case. The factors that courts use to determine
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the reasonableness of the Department’s efforts include: (1) the reasons for
separating the parent from his or her children, (2) the parent’s physical and
mental abilities, (3) the resources available to the parent, (4) the parent’s
efforts to remedy the conditions that required the removal of the children, (5)
the resources available to the Department, (6) the duration and extent of the
parent’s remedial efforts, and (7) the closeness of the fit between the
conditions that led to the initial removal of the children, the requirements of
the permanency plan, and the Department’s efforts.
The Department does not have the sole obligation to remedy the conditions
that required the removal of children from their parents’ custody. When
reunification of the family is a goal, the parents share responsibility for
addressing these conditions as well. Thus, parents desiring the return of their
children must also make reasonable and appropriate efforts to rehabilitate
themselves and to remedy the conditions that required the Department to
remove their children from their custody.
In re Giorgianna H., 205 S.W.3d 508, 518-19 (Tenn. Ct. App. 2006) (other internal citations
omitted).
In the instant action, DCS made substantial efforts to reunite this family after removal
of the Children from Mother’s custody. DCS facilitated visits between Mother and the
Children by transporting the Children, as well as assisting Mother with her own
transportation through provision of a gas card and a referral to East Tennessee Human
Resources Agency (“ETHRA”). DCS developed two permanency plans with Mother,
providing her with a referral to obtain a mental health assessment. DCS arranged and paid
for parenting classes to be performed in Mother’s home. Additional departmental efforts
included attempting to maintain contact with Mother when she could be located and often
initiating contact to schedule visitation in the absence of communication from Mother. DCS
explained the effect of the no-contact order to Mother as well as the steps necessary to seek
its dismissal. Mother was repeatedly warned not to have Lewis S. involved with the
Children. DCS made at least three home visits to Mother’s residence. On one visit the
worker was denied entry, allegedly due to bedbug infestation.
It should also be noted that DCS made substantial efforts to prevent removal of the
children, all to no avail. See Tenn. Code Ann. §37-1-166. DCS had been involved with
Mother for a number of years. During a prior custody episode, many services had been
offered to Mother to support her efforts to appropriately parent the Children. The services
provided in the past included instruction on how to properly clean house, prevent insect
infestation, do laundry, and store food. In 2010, the assigned CPS worker met with Mother
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and prepared a plan of tasks Mother needed to accomplish to improve her situation. The
strategy included obtaining her eyeglasses, a driver’s license, and a GED through her
employment. The worker further provided Mother with information on how to fulfill these
tasks. She later reported that after four months Mother had completed none of these
responsibilities. Although the CPS worker put services in place for Mother to receive
training on conflict resolution and budgeting, Mother failed to avail herself of such
opportunities.
As stated above, parents also bear responsibility in making reasonable efforts to
rehabilitate themselves and to remedy the conditions that necessitated removal of children
from parental custody. See Giorgianna H., 205 S.W.3d at 518-19. Mother utterly failed in
this responsibility. Viewing the situation in its entirety, the trial court found that DCS had
made reasonable efforts to assist Mother in reuniting her family. We agree. In significant
measure, Mother did not take advantage of DCS’s reasonable efforts. As this Court has
previously stated:
Reunification is a “two-way street,” and the law does not require DCS to
carry the entire burden of this goal. DCS cannot reasonably be expected to
do everything for a parent.
In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576 at *16 (Tenn. Ct. App. Oct.
13, 2008). We conclude that the efforts expended by DCS in this case were reasonable. This
issue is without merit.
VI. Persistent Conditions
Tennessee Code Annotated § 36-1-113(g)(3) provides the following as an alternate
ground for termination of parental rights:
(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
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remedied at an 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
integration into a safe, stable and permanent home . . . .
By its order terminating Mother’s parental rights, the trial court, inter alia, found that
the requirements of this statutory section had been satisfied:
In the instant case, there is clear and convincing evidence that the conditions
that led to the removal still persist. The minor children were removed due to
environmental neglect issues in the home and the fact that the mother intended
to take the minor children to reside with Lewis [S.] in violation of a Campbell
County Juvenile Court Order. [Mother] still does not have an appropriate
home for the children by her own admission. Further, although [Mother] has
stated that she has filed for divorce from Lewis [S.], he is at the home every
time DCS makes a home visit. [Mother] has stated that Lewis [S.] loves the
children and she does not seem to understand why he cannot be around them.
Further, the home still has roaches. There is little chance that these conditions
will be remedied soon. DCS has made reasonable efforts to assist [Mother] to
remedy the conditions.
The evidence supports these findings. The Children were removed from the home by
court order on September 19, 2011, due primarily to the poor living conditions and Mother’s
failure to abide by the no-contact order regarding Lewis S. and the Children. At the time of
trial over one year later, these conditions still persisted. Mother continued to live in the
unsuitable home until late summer 2012, some nine to ten months following the Children’s
removal. The DCS worker visiting this home in May 2012 found similarly deplorable
conditions to exist. Mother was subsequently homeless for a period of time. She did not
apply for public housing until August 2012. Although obtaining an apartment approximately
two weeks prior to trial with rent assistance from Ridgeview, she admitted that this residence
was not suitable for the Children due to a lack of furniture. Mother also acknowledged that
there was a cockroach concern when she moved into the apartment, a fact confirmed by the
DCS worker who observed the situation when she visited the home two days before the
termination trial. The DCS worker indicated that there was very little food in the home as
well.
Further, Lewis S. was present in the home during the most recent visit by the DCS
worker. This was also the situation during prior unannounced visits. The DCS worker
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explained that Lewis S. was present often when she spoke to Mother by telephone. Although
Mother maintained at trial that she was separated from Lewis S. and in the process of
obtaining a divorce, there was no corroborating proof of this assertion. Mother’s testimony
demonstrated several significant facts, including (1) she and Lewis S. knew the steps
necessary to seek dismissal of the no-contact order, but never pursued them; (2) she
entertained the idea of moving to Florida with Lewis S. and the Children after the no-contact
order was entered; (3) she continued to live with Lewis S. intermittently during the pendency
of these proceedings; (4) she held a power of attorney for Lewis S. at the time of trial; (5) she
continued to approach the Children on Lewis S.’s behalf; and (6) in May 2012, after Stephen
disclosed sexual abuse allegations against Lewis S., she spoke to Stephen by telephone,
telling him, “Lewis loves you, Lewis would never hurt you . . . why are you saying those
things about him?”
From our review of Mother’s trial testimony, we determine that she clearly did not
understand or appreciate that Lewis S. presented a danger to the Children and therefore
should not be in their company. Mother’s representation that she was divorcing Lewis S. was
not supported by the totality of the evidence. Mother repeatedly represented to the DCS
worker during the pendency of the proceedings that she and Lewis S. intended to seek a
dismissal of the no-contact order in order to live together. Mother did not take appropriate
steps to remove Lewis S. from her life and appeared unwilling to do so. She had also failed,
by her own admission, to maintain a home suitable for the Children by the time of trial. As
such, it would not be safe for the Children to be returned to her. We conclude that the
conditions leading to removal of the Children still persisted at the time of trial, more than a
year following. We further conclude that those conditions were unlikely to be remedied at
an early date such that the Children could be safely returned to Mother.
There was also sufficient proof that continuation of the parent-child relationship
would greatly diminish the Children’s chances of early integration into a safe, stable, and
permanent home. The DCS worker testified that Stephen’s stomach issues had resolved
since being placed into state custody. After visiting with Mother, however, Stephen
experienced significant regressive behavior, defecating on himself for the first time in
months. He also acted out in aggression toward his brother. This proof demonstrates that
continuation of the relationship with Mother would greatly diminish the Children’s chances
of early integration into a safe, stable, and permanent home. See, e.g., State Dep’t of
Children’s Servs. v. M.P., 173 S.W.3d 794, 807 (Tenn. Ct. App. 2005). The evidence in this
case does not preponderate against the trial court’s determination, by clear and convincing
evidence, that Mother’s parental rights should be terminated upon the ground of persistent
conditions.
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VII. Abandonment by Failure to Provide a Suitable Home
Tennessee Code Annotated § 36-1-113(g)(1) (Supp. 2012) provides, as an additional
statutory ground for termination:
(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 . . . .
Tennessee Code Annotated § 36-1-102(1)(A)(ii) (2010) defines abandonment, in relevant
part, as:
The child has been removed from the home of the parent(s) or guardian(s) as
the result of a petition filed in the juvenile court in which the child was found
to be a dependent and neglected child, as defined in § 37-1-102, and the child
was placed in the custody of the department or a licensed child-placing agency,
that the juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-placing
agency made reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable efforts from being
made prior to the child’s removal; and for a period of four (4) months
following the removal, the department or agency has made reasonable efforts
to assist the parent(s) or guardian(s) to establish a suitable home for the child,
but that the parent(s) or guardian(s) have made no reasonable efforts to provide
a suitable home and have demonstrated a lack of concern for the child to such
a degree that it appears unlikely that they will be able to provide a suitable
home for the child at an early date. The efforts of the department or agency to
assist a parent or guardian in establishing a suitable home for the child may be
found to be reasonable if such efforts exceed the efforts of the parent or
guardian toward the same goal, when the parent or guardian is aware that the
child is in the custody of the department . . . .
By its order terminating Mother’s parental rights, the trial court, inter alia, found that
the requirements of this statutory section had also been satisfied:
[Mother] did not make any efforts to provide a suitable home for the children
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until after the Petition to Terminate Parental Rights was filed. She waited until
August, 2012, to obtain her own apartment. She also waited until August,
2012, to get on any waiting lists for other possible residences. Prior to that
time, she continued to reside in the home from which the children were
removed, without resolving the environmental neglect issues in that home.
She did not have stable housing for a period of time, and resided with friends.
[Mother] testified that her current apartment is not currently appropriate for the
minor children. She testified that there are currently roaches in the home and
the home is without any furniture other than a couch. Further, one of the other
homes where she resided had bed bugs. [Mother] stated that she filed [for]
divorce from Lewis [S.], however, she did not have any documentation or
proof that the divorce was filed. However, Lewis [S.] was at her home two (2)
days before court, and he has been present on other occasions when the
department visited. Her demeanor and testimony during trial indicates that she
does not believe that there is anything wrong with Lewis. [S.] being around her
children.
Again, the evidence supports these findings. Parental custody of the Children was
removed in September 2011. The Children were subsequently found to be dependent and
neglected at a hearing on November 10, 2011. As previously stated, DCS made reasonable
efforts to assist Mother in establishing a suitable home for the Children during a period of
more than four months following their removal. Mother, however, made no reasonable
efforts to provide a suitable home. She instead demonstrated a lack of concern for the
Children’s home environment. Mother did not actively seek visitation with the Children,
often did not appear at scheduled visits, and did not interact with the Children appropriately
during such parenting time. Further, the proof showed that Mother seldom inquired as to the
Children’s welfare and did not attend medical or other appointments. Mother’s lack of
concern has been of such degree that it appears unlikely that she will be able to provide a
suitable home for the Children at an early date.
Mother failed to make a reasonable effort to obtain a suitable home for the Children
during the year the Children were in state custody before the termination trial. She obtained
an apartment only two weeks before trial, this being two months after the petition to
terminate her parental rights was filed. In addition, that apartment was not an appropriate
home for the Children, as discussed at length in prior sections. We conclude that the
evidence does not preponderate against the trial court’s determination, by clear and
convincing evidence, that Mother’s parental rights should be terminated upon the ground of
abandonment by failure to provide a suitable home.
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VIII. Best Interest of Children
When a parent has been found to be unfit by establishment of a ground for
termination, as here, the interests of parent and child diverge, and the focus shifts to what is
in the child’s best interest. In re Audrey S., 182 S.W.3d at 877. Tennessee Code Annotated
§ 36-1-113(i) (Supp. 2012) provides a list of factors the trial court is to consider when
determining if termination is in the child’s best interest. This list is not exhaustive, and the
statute does not require the court to find the existence of every factor before concluding that
termination is in a child’s best interest. In re Audrey S., 182 S.W.3d at 878. Further, the best
interest of a child must be determined from the child’s perspective and not the parent’s.
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such duration
of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
(4) Whether a meaningful relationship has otherwise been established between
the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or
guardian, has shown brutality, physical, sexual, emotional or psychological
abuse, or neglect toward the child, or another child or adult in the family or
household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care for
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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.
In this case, the trial court appropriately made findings regarding the above-listed
statutory factors, finding factors 1, 2, 6, and 7 to be determinative:
The Respondent has not made such an adjustment of circumstance, conduct,
or conditions as to make it safe and in the children’s best interest to be in the
home of the Respondent. The Respondent still has unresolved mental health
issues as well as the need for a suitable home. The home is currently not ready
for the children and Lewis [S.] is still an active participant in [Mother’s] life.
It would not be in the best interests of the children to return to the
Respondent’s care.
The Respondents have 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. [Mother] has not
addressed her mental health issues, still does not have appropriate housing, and
is still involved with Lewis [S.] even after DCS has provided some assistance
before and after the removal of the minor children for over one (1) year. The
minor child Stephen has disclosed that Lewis [S.] has sexually molested him.
It is not safe for the minor children to reside in the home because [Lewis S.]
is still present. Further, Lewis [S.] has had a domestic violence history that at
least one of the minor children has witnessed. [Mother] does not seem willing
or able to keep the minor children away from Lewis [S.].
These findings are supported by the evidence adduced at trial. We agree that Mother
has not made a significant adjustment to her circumstances or conduct so as to make it safe
for the Children to be with her. Further, due to the length of time DCS has been attempting
to help Mother, an adjustment does not reasonably appear possible. Although Mother has
visited with the Children, albeit not regularly, there was no proof that a meaningful
relationship existed between Mother and the Children. A change of caretakers and physical
environment would have a detrimental effect on the Children’s emotional and psychological
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well-being, based on Stephen’s disclosure of possible abuse and his regression in behavior
after visiting with Mother. As the trial court found, Mother appeared desirous of keeping
Lewis S. as a part of her life, despite the previous physical abuse he inflicted upon her and
her oldest child and despite the sexual abuse allegations voiced against him by Stephen.
Mother did not maintain a safe and suitable home for the Children. She also failed
to comply with the requirement that she obtain a mental health assessment until
approximately one month before trial; ostensibly, her mental health issues, if any, had not yet
been addressed. Finally, there was no proof regarding whether Mother had paid any child
support. Reviewing the evidence in light of the statutory factors, the trial court did not err
in finding clear and convincing evidence that termination of Mother’s parental rights was in
the best interest of the Children.
IX. Conclusion
The judgment of the trial court terminating the parental rights of Mother is affirmed.
Costs on appeal are taxed to the appellant, Tammy S. This case is remanded to the trial
court, pursuant to applicable law, for enforcement of the trial court’s judgment and collection
of costs assessed below.
_______________________________
THOMAS R. FRIERSON, II, JUDGE
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