In Re: Kelsie M.P. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 11, 2013
IN RE KELSIE M.P., ET AL.
Appeal from the Juvenile Court for Knox County
No. 114127 Hon. Timothy Irwin, Judge
No. E2012-02060-COA-R3-PT-FILED-FEBRUARY 12, 2013
This case involves the termination of a mother’s parental rights to three children who had
been placed in the custody of the Tennessee Department of Children’s Services. The mother
had made some progress in complying with the permanency plan developed by the
Department, but was still experiencing “instability.” Nearly two years after the mother
relinquished control of the children, the Department petitioned to terminate the mother’s
parental rights. The trial court granted the petition, terminating the mother’s parental rights
on the ground that the conditions that led to the children’s removal continued with little
likelihood of remedy. The mother appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., P.J., and D. M ICHAEL S WINEY, J., joined.
Ben H. Houston, II, Knoxville, Tennessee, for the appellant, Carrie M. P.
Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
Dorothy Cooley, Maryville, Tennessee, Guardian ad Litem.
OPINION
I. BACKGROUND
On January 15, 2010, Susan Raley, the maternal aunt of the children, petitioned the
Juvenile Court to find Kelsie M. P. (D.O.B. 1-8-09), Jacob M. R. (D.O.B. 8-23-07), and
Alyssa R. P. (D.O.B. 5-26-04)1 (collectively “the Children”) abandoned, dependent and
neglected. The petition alleged that the Children were without proper care and supervision
because Carrie M. P. (“Mother”) had been homeless for an extended period of time and
suffered from drug abuse issues. Ms. Raley and her husband had maintained physical control
of the Children since January 9, 2010, “when [M]other called and told them to come and get
the [C]hildren.” Mother brought the Children to the Raleys’ home, signed a power of
attorney, and left. At a preliminary hearing ten days later, the Juvenile Court awarded
temporary custody of the Children to Ms. Raley. Mother did not make an appearance at the
hearing.
Mother appeared at an April 30, 2010, hearing, with counsel, and agreed to transfer
custody to the Raleys. The parties stipulated and the court found by clear and convincing
evidence that the Children were dependent and neglected due to Mother’s lack of housing
and ongoing substance abuse issues. The Juvenile Court awarded ongoing temporary custody
to the Raleys.
A little over a month later, the Guardian ad Litem assigned to the Children made an
oral motion for their emergency removal from the Raleys’ home.2 At a subsequent hearing,
the Juvenile Court awarded temporary custody of the Children to the Department of
Children’s Services (“DCS”).
The initial permanency plan (“the Plan”) was developed on July 8, 2010, with
Mother’s presence and participation. The Plan required that Mother:
a. complete domestic violence counseling;
b. complete a mental health assessment and comply with resulting treatment
recommendations;
c. complete an alcohol and drug assessment, comply with resulting treatment
1
It is the policy of this court to identify the last names of those involved in termination proceedings
by initial.
2
Ms. Raley indicated that she became overwhelmed by the care required for the Children and the
impact on her marriage and financial resources.
-2-
recommendations, be alcohol- and drug-free, and pass random drug screens to
demonstrate sobriety;
d. establish suitable stable housing with no environmental hazards, domestic
violence, drug use, or other risks to her children; and
e. complete age-appropriate parenting education and demonstrate learned
skills.
Due to domestic violence and criminal issues involving Mother’s husband,3 she was required
to separate herself from him unless he, too, completed domestic violence/anger management
counseling and addressed other issues of concern. Additionally, Mother was instructed to
visit the Children regularly and to pay child support.
At a hearing on July 27, 2010, Mother reported that she had located appropriate
housing, taken her GED test, and obtained a job. According to Mother, she had completed
an alcohol and drug assessment through Bradford with a recommendation for intensive out-
patient treatment, had a car and driver’s license, and planned to address the domestic
violence issues through individual counseling. The Juvenile Court observed at that time that
Mother was in partial compliance with the Plan and that her progress was good. However,
within a few weeks she left Knoxville and returned to West Tennessee. A DCS pleading
summarizes what transpired next:
Over the next several months she maintained sporadic telephone contact with
[DCS] and attended some of the scheduled visits with [the Children]. She
came to Foster Care Review Board on October 6, 2010, and tested positive for
benzodiazepines. In mid-December 2010 she reported that she was with her
husband, living with her mother, and that they were thinking about moving
back to Knoxville.
On January 6, 2011, [Mother] reported that she and her husband had returned
to Knoxville. They were looking for housing and jobs. The [C]hildren’s case
manager referred them to Knox Area Rescue Mission (KARM) and to public
housing. They sought assistance at KARM and entered the New Life Inn
program for homeless families. [Mother] worked diligently in this program,
eventually separating from her husband. She obtained a job, completed her
assessments, and participated in recommended individual therapy and
medication management through Solution Source. She passed random drug
screens. KARM assured her that she could continue to live there, and that her
[C]hildren could join her, but their goal was to find independent housing for
3
He was not a biological father of any of the Children.
-3-
her. She knew that she would not be eligible for public housing until
September 2011 due to previous criminal charges.
The [C]hildren were returned to [Mother]’s care for trial home placement on
May 26, 2011. They continued to live at KARM and she quit her job in order
to provide continuous supervision for the [C]hildren and to get Kelsie to all her
medical appointments. On July 8, 2011, [Mother] failed a drug screen, putting
her continued residence at KARM in jeopardy. A month later she failed
another drug screen. She was warned that another dirty screen would result in
her discharge from the program. In early August 2011, [Mother] got frustrated
with Jacob to the point that she hit him in the head, leaving marks on his
forehead. At a Child & Family Team Meeting on August 15, 2011, she said
she was very overwhelmed and frustrated, uncomfortable having her
[C]hildren at KARM, living in a one-room unit, and having no time alone. She
felt that Kelsie required her constant attention and that, as a result, Jacob and
Alyssa were not getting the attention they needed. She wanted to find a job,
but had no one to help watch the [C]hildren and could not get them into
daycare. She also stated that she could not handle it in Knoxville. She
proposed to return to live with her mother in West Tennessee and agreed that
the trial home placement should be terminated. The [C]hildren returned to
foster care that day.
On August 29, 2011, [Mother] telephoned from a Knoxville hotel. She said
that she had left KARM and tried staying with a friend but that had not worked
out. She was putting in applications for a job and intending to resume
treatment at Solution Source. That never happened. Instead, despite actually
being offered a job, she left town and went back to West Tennessee. On
September 12, 2011, she telephoned and reported that she had returned
temporarily to West Tennessee because she did not have suitable housing in
Knoxville and her peers had been negative influences. She was advised that
the [C]hildren’s case manager and the resource agency (Patria) had made
repeated efforts to locate her and that she needed to remain in contact. A visit
was scheduled for September 15, 2011, but she cancelled it as she did not have
transportation. She visited with Kelsie several times at the end of August but
has not seen the other [C]hildren since the trial home placement was disrupted
on August 15, 2011. She has communicated with the [C]hildren’s case
manager by t[e]xt message but those messages only confirm that her situation
is unchanged. She remains without suitable housing for herself and the
[C]hildren and without a stable source of income. She dropped out of therapy
and medication management. And she has failed to demonstrate the ability to
-4-
provide for the long-term care and supervision of [the Children].
(Numbering in original omitted.).
DCS filed to terminate Mother’s parental rights on November 21, 2011, based on the
continuing instability issues.4 DCS ultimately concluded that despite some improvement in
her situation, Mother still was unable to provide the care and supervision the Children
required.
A bench trial was held on August 29, 2012, at which time the parties agreed to
stipulate to the ground of persistence of conditions. The Juvenile Court read to Mother and
her attorney the definition of persistence of conditions, DCS asserted that the persistent
condition that had required removal and had not yet been remedied by Mother was her
instability, and Mother and her attorney individually stipulated to the existence of the ground.
DCS subsequently introduced the dependency and neglect proceedings and the documents
relating to the disruption of the trial home visit as proof of Mother’s instability.
DCS thereafter called Courtney Hamilton, the Children’s DCS case manager, to testify
that termination of Mother’s parental rights was in the Children’s best interests. Hamilton
noted that at the time of trial, Kelsie was three years old and suffering from severe
developmental delays and a cortical visual impairment, severe acid reflux and asthma, and
was being tested for autism and cerebral palsy. Hamilton indicated that Kelsie, who requires
the use of a walker, is enrolled in a developmental preschool program where she receives
physical and speech therapy three days a week. Hamilton testified that Kelsie is currently in
a pre-adoptive foster home that includes three older boys who “pick [Kelsie] up and talk to
her, and she loves to see them when they walk in the door.” According to Hamilton, Kelsie
loves her foster mother and father and “fits right in.” Hamilton further observed that the
foster family has allowed Mother to visit Kelsie at their home and that they have built a
relationship with her.
As to Alyssa and Jacob, Hamilton related that they are with a different foster family
than their sister. At the time of trial, Alyssa had started the third grade; Hamilton noted that
Alyssa has had past issues with stealing and lying, but is improving. Alyssa receives
medication management and individual therapy every other week, but she is doing well in
the foster environment. Jacob was described by Hamilton as “being physically and verbally
aggressive, kind of destructive to property, . . . has a hard time when somebody tells him no
or he can’t have something that he wants.” According to Hamilton, Jacob requires immediate
4
The parental rights of Alyssa’s father and the father of Kelsie and Jacob had already been terminated
at the time of trial and were not appealed.
-5-
structure and stability with consistent consequences for his action. She opined that Jacob’s
problems with physical aggression and colorful language are because “he’s seen things in the
past.” Like Alyssa, Jacob also receives medication management and individual therapy.
Hamilton testified that due to the foster mother’s health issues, Jacob and Alyssa’s home was
no longer pre-adoptive. However, she opined that Jacob and Alyssa would be easily placed
in a new pre-adoptive foster home.
After hearing the proof, the Juvenile Court terminated Mother’s parental rights to the
Children based upon the ground of persistence of conditions. The court determined that the
parties had stipulated to the ground of persistent conditions and independently found that
termination was in the Children’s best interests. Mother filed a timely notice of appeal.
II. ISSUES
We restate the issues raised by Mother as follows:
a. Whether the trial court properly determined that Mother failed to remedy
the persistent conditions in her life that prevented reunification with the
Children.
b. Whether DCS sufficiently established that it made reasonable efforts to
reunify Mother with the Children.
c. Whether the trial court properly determined by clear and convincing
evidence that termination of Mother’s parental rights was in the Children’s
best interests.
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.”’ M.L.B.
-6-
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).
While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. “[A] court must determine that clear and convincing evidence
proves not only that statutory grounds exist [for termination] but also that termination is in
the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The existence
of at least one statutory basis for termination of parental rights will support the trial court’s
decision to terminate those rights. In re C. W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000),
abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug.13, 2003). This
evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
The Tennessee Supreme Court has provided guidance to this court in reviewing cases
involving the termination of parental rights:
A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
then make its own determination regarding whether the facts, either as found
by the trial court or as supported by a preponderance of the evidence, provide
clear and convincing evidence that supports all the elements of the termination
claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
Appellate courts conduct a de novo review of the trial court’s decisions
-7-
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010) ]; In re
Adoption of A.M.H., 215 S.W.3d at 809.
In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010) (emphasis added).
IV. DISCUSSION
I.
Tennessee Code Annotated section 36-1-113 provides the grounds for termination of
parental rights. The applicable provisions read as follows:
36-1-113. Termination of parental rights. – (a) The chancery and circuit
courts shall have concurrent jurisdiction with the juvenile court to terminate
parental or guardianship rights to a child in a separate proceeding, or as a part
of any grounds for termination of parental or guardianship rights permitted in
this part or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
***
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). . . :
(1) Abandonment by the parent or guardian, as defined in § 36-
1-102, has occurred;
-8-
(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;
(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 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 . . . .
Tenn. Code Ann. §§ 36-1-113(a) - (g)(3)(A)-(C) (Supp. 2012).5 The party petitioning for
termination carries the burden of proof. In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App.
2004). The requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause substantial harm to
his or her child before the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
At trial, Mother purported to stipulate that grounds existed to terminate her parental
rights – indeed, she stipulated that her instability was the cause for removal of the Children
and the reason why they could not be returned to her custody. The proceedings in the trial
court transpired as follows:
THE COURT: The State said that you are willing to stipulate to the ground of
persistence of conditions. In an abundance of precaution, I’m going to read
5
Recent amendments have not modified provisions applicable in this case.
-9-
you that ground, and I’m going to read it to you as they pled it, and I’m going
to ask if you’re willing to stipulate to the ground, okay, so we can get it on the
record.
That the [C]hildren have been removed by order of the Court for a period of
six months, the conditions which led to their removal still persist, other
conditions persist which in all probability would cause the [C]hildren to be
subjected to further abuse and neglect, which therefore prevents the
[C]hildren’s return to the care of [Mother]. There is little likelihood these
conditions will be remedied at an early date so that these [C]hildren can be
returned to [Mother] in the near future. The continuation of legal parent and
child relationship greatly diminishes the [C]hildren’s chance of early
integration in a stable, safe and permanent home.
What specific conditions are you talking about?
MS. KOVAC: Your Honor, the conditions that led to removal included
substance abuse, which has been resolved, and instability, and we would assert
that that is a condition that has not been resolved.
THE COURT: Do you understand?
[MOTHER]: Yes, sir.
THE COURT: Are you willing to stipulate to that ground?
[MOTHER]: Yes, sir.
THE COURT: Say it out loud.
[MOTHER]: Yes, sir.
***
Mother now argues that the Juvenile Court failed to include in its final order findings
of fact and conclusions of law sufficient to support a finding that grounds existed to
terminate her parental rights. Relying upon the holding of the Tennessee Supreme Court in
In re Angela E., 303 S.W.3d 240 (Tenn. 2010), Mother posits that while parties may
-10-
stipulate6 to the existence of certain facts in a termination of parental rights proceeding,
parties are not permitted to stipulate that a statutory ground exists without presenting
sufficient evidence into the record to establish the existence of the ground by clear and
convincing evidence. Id. at 253-255. As noted by Mother, even when termination
proceedings are uncontested, “the trial court must develop an evidentiary record, ultimately
resulting in a written order with 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 [the parent’s] parental rights.” Id. at 255. She asserts there is insufficient
evidence to support a finding of persistence of conditions (instability). Mother further
contends that the evidence of record supports a determination that the older children, Alyssa
and Jacob, may have a better shot at early integration into a safe, stable and permanent home
if they are reunited with Mother, since their current foster home was not pre-adoptive.
The Juvenile Court’s order provides, inter alia, as follows:
The parties stipulate and the Court, therefore, finds that the [C]hildren have
been removed by order of this Court for a period of six (6) months; the
conditions which led to their removal still persist; other conditions persist
which in all probability would cause the [C]hildren to be subjected to further
abuse and neglect and which, therefore, prevent the [C]hildren’s return to the
care of [Mother]; there is little likelihood that these conditions will be
remedied at an early date so that these [C]hildren can be returned to [Mother]
in the near future; the continuation of the legal parent and child relationship
greatly diminishes the [C]hildren’s chances of early integration into a stable
and permanent home. The parties agree that substance abuse is no long a
significant issue but stipulate that [Mother] has not been able to establish
stability for herself and her [C]hildren despite the additional time inadvertently
allowed through the several continuations of this matter.
[Mother] has not made such an adjustment of circumstance, conduct, or
conditions as to make it safe and in the [C]hildren’s best interest to be in her
6
In Allman v. Allman, No. M1997-00251-COA-R3-CV, 2000 WL 1728339 (Tenn. Ct. App. Nov. 22,
2000), this court noted as follows:
Generally speaking, the “facts” in a case are occurrences and events that happen in the world
outside the courtroom, which must be proved through the introduction of competent
evidence. . . . Stipulations are not evidence, but they have the effect of making it
unnecessary to prove the agreed-to facts with evidence.
Allman, 2000 WL 1728339, at *1, n. 1 (internal citations omitted).
-11-
home despite reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible.
She has not maintained regular visitation with the [C]hildren since they entered
foster care, abandoning them for months at a time and then returning to resume
contact. She has failed to demonstrate the ability to care for her [C]hildren on
a long-term basis. A change of caretakers and physical environment is likely
to have a detrimental effect on the [C]hildren’s emotional, psychological and
medical condition.
Kelsie functions at the level of a nine-month old and has extraordinary medical
needs. She requires constant attention. Her foster parents are uniquely suited
to care for her and she has made significant progress in their home. They have
established a positive relationship with [Mother] that everyone anticipates will
continue. Adoption in their home will occur as quickly as possible following
conclusion of these proceedings. Jacob and Alyssa are in a separate foster
home. Their foster mother recently experienced serious health problems and,
as a result, concluded that adoption is not a possibility. The [C]hildren have
been thriving in that home. It is clear from their behavior there and while on
respite elsewhere that they need definite structure, consistent consequences,
and a safe, stable and secure environment to overcome their previous
experiences. Jacob, at just five years of age, has a vocabulary of profanity and
attempts to resolve his conflicts and frustrations by hitting. Another move for
these [C]hildren will certainly be a set-back but it cannot be helped. The
[C]hildren’s case manager testified that she has no doubt a suitable home can
be identified quickly once the [C]hildren are free for adoption. They will
remain in the current foster home until then. [Mother] has been offered the
unusual opportunity to participate in the selection process.
***
The Department of Children’s Services has made reasonable efforts toward
achieving permanency for these [C]hildren.
It is, therefore, in the best interest of [the Children] and the public that all of
[Mother]’s parental rights to these Children be terminated and the complete
custody, control, and full guardianship of the [C]hildren be awarded to the
State of Tennessee, Department of Children’s Services, with the right to place
them for adoption and to consent to such adoption in loco parentis.
***
-12-
(Headings and numbering in original omitted.).
It is commendable that Mother has made great strides in resolving her issues with drug
abuse. However, she still has failed to remedy her issue with instability, preventing the
permanent return of the Children to her. A report prepared for the Juvenile Court reflects
that Mother stated that she is unable to safely and appropriately care for the Children, and
that the Children are too much for her to handle. Indeed, after being permitted by DCS to
regain custody of the Children on a trial basis, Mother’s instability resurfaced, resulting in
a suspension of the trial home visit. We therefore agree with the Juvenile Court’s conclusion
that DCS has shown, through clear and convincing evidence, that, pursuant to Tennessee
Code Annotated section 36-1-113 (g)(3), the conditions that led to the Children’s removal
continue to persist and prevent the Children’s return to Mother, that there is little likelihood
that the conditions will be remedied in the near future, and that the continuation of the
parent-child relationship greatly diminishes the Children’s chances of being placed in a
permanent home.
II.
The General Assembly has recognized that children should not be separated from their
parents unless separation is necessary for the children’s welfare or in the interest of public
safety. Tenn. Code Ann. §§ 37-1-101(a)(3), 37-2-401(a). “Even after a child has been
validly committed to the custody of [DCS], the State’s first priority is to restore the family
unit if at all possible.” In re Drinnon, 776 S.W.2d 96, 99-100 (Tenn. Ct. App. 1988). To that
end, DCS must submit an affidavit to the court in every proceeding where the child’s
placement is an issue certifying that it has made reasonable efforts to reunify and restore the
family. In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *8 (Tenn. Ct.
App. March 9, 2004). Tennessee Code Annotated section 37-1-166(g)(1) defines these
reasonable efforts as “the exercise of reasonable care and diligence by the department to
provide services related to meeting the needs of the child and the family.” Tenn. Code Ann.
§ 37-1-166(g)(1). DCS’s efforts must be reasonable, but are not required to be “herculean.”
In re Georgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006). However, DCS need not
shoulder the burden alone. The parents “must also make reasonable efforts to rehabilitate
themselves and to remedy the conditions that required the removal of the children.” In re
Q.E., 284 S.W.3d 790, 800-1 (Tenn. Ct. App. 2008). The State has the burden of proving
by clear and convincing evidence that its efforts at reunification were reasonable under all
the circumstances. See In re C.M.M., 2004 WL 438326, at *8.
To determine whether DCS made reasonable efforts at reunification, a court should
consider, among other things,
-13-
(1) the reasons for separating the parent from his or her child or 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 separation,
(5) the resources available to the Department,
(6) the duration of the parent’s remedial efforts, and
(7) the closeness of the fit between the conditions that led to the initial
separation, the requirements in the permanency plan, and the Department’s
efforts.
In re C.M.M., 2004 WL 438326, at *7.
Mother asserts the record in this case is devoid of any testimony regarding what
reasonable efforts at reunification were made by DCS. She further notes that she did not
stipulate that DCS made reasonable efforts to reunify her with the Children. Mother does not
elaborate regarding what else DCS could have done on her behalf.
From our careful review of the record, we find that it supports, by clear and
convincing evidence, the Juvenile Court’s finding that DCS presented sufficient evidence
regarding its reunification efforts. DCS provided Mother with visitation, mental health
assessments, mental health counseling, alcohol and drug assessment, domestic violence
treatment, and housing referrals. DCS assisted Mother’s homelessness and stability issues
by working with the Knox Area Rescue Ministries and the New Life Inn program to ensure
that Mother would not be asked to leave as long as she followed program rules. After putting
these services in place, DCS attempted to return the Children to Mother as part of a trial
home placement to see if she could provide a stable environment for the Children.
Unfortunately, despite DCS’s services and the trial home visit, Mother was unable to remedy
the instability that prevented her from being able to adequately parent the Children.
Accordingly, from our review of the record, we find that it supports, by clear and convincing
evidence, the trial court’s findings of fact and conclusions of law that DCS made reasonable
efforts to provide Mother with the services she needed to be reunited with the Children.
-14-
III.
Having concluded that there was clear and convincing evidence supporting the
statutory ground to terminate Mother’s parental rights, we must consider whether termination
of Mother’s parental rights was in the best interest of the Children. In making this
determination, we are guided by the non-exhaustive list of factors provided in Tennessee
Code Annotated section 36-1-113:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child . . . the court shall consider, but is not limited to,
the following:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol or
-15-
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent’s or guardian’s mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to [section] 36-5-101.
Tenn. Code Ann. § 36-1-113(i) (2010). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may conclude
that terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when
the best interest[] of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interest[ ] of the child, which interests are
hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering
a child’s best interest, the court must take the child’s perspective, rather than the parent’s).
Mother argues that the evidence regarding the circumstances of the Children in foster
care was very sparse. She contends that the evidence presented is not clear and convincing.
Again, we applaud Mother’s accomplishments regarding her drug abuse issues.
However, our review of this matter reveals that Mother has failed to make a lasting
adjustment despite the best efforts of DCS to provide her services. See Tenn. Code Ann. §§
36-1-113(i)(2) & (8). Mother also failed to make an adjustment of circumstances, conduct,
and conditions to make it in the best interests of the Children to remain in her home. See
Tenn. Code Ann. § 36-1-113(i)(1). A report prepared for the Juvenile Court reflects that
Mother declared that she is unable to safely and appropriately care for the Children, as the
Children were too much for her to handle. At the time of trial, Mother still had not obtained
stable housing fit to care for the Children. Thus, despite the lengthy period of time away
from the Children that Mother has had to “get her act together,” she still cannot provide a
stable environment for the Children. Likewise, the Children are doing well in foster care and
would suffer emotionally should they be removed. See Tenn. Code Ann. § 36-1-113(i)(5).
Given the evidence showing Mother’s inability to parent and provide for the Children and
the Children’s need for permanence, the Juvenile Court properly found that the termination
-16-
of Mother’s rights was in the best interest of the Children. We conclude that there was clear
and convincing evidence to establish that termination of Mother’s parental rights was in the
best interest of the Children.
V. CONCLUSION
The judgment of the trial court is affirmed and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are assessed to the appellant, Carrie
M. P.
_________________________________
JOHN W. McCLARTY, JUDGE
-17-