In re Jamie G. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 07, 2015 Session
IN RE JAMIE G.
Appeal from the Juvenile Court for Davidson County
No. 169539 Sophia Brown Crawford, Judge
No. M2014-01310-COA-R3-PT – Filed May 29, 2015
In this termination of parental rights case, Mother appeals the trial court‟s findings of
abandonment by willful failure to support and the persistence of conditions as grounds for
termination. Mother also appeals the trial court‟s conclusion that termination was in the
child‟s best interest. Pre-adoptive parents appeal the trial court‟s decision declining to find
the ground of willful failure to visit. We affirm the trial court‟s findings of willful failure to
support and persistent conditions. Further, albeit for different reasons, we affirm the trial
court‟s decision declining to terminate Mother‟s parental rights on the ground of willful
failure to visit. We also affirm the trial court‟s finding that termination is in the child‟s best
interest, and therefore, affirm the termination of the Mother‟s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and KENNY ARMSTRONG, J., joined.
Nicholas Perenich, Jr., Nashville, Tennessee, for the appellant, Heidi G.
Jacqueline B. Dixon, Nashville, Tennessee, for the appellees, Steven C. and Kathryn C.
Cynthia H. Moore, Nashville, Tennessee, Guardian Ad Litem.
OPINION
Background
In November 2007, Jamie G. 1 (“Jamie” or “the child”) was born to Heidi G.
(“Mother”) in Nashville, Tennessee. 2 Jamie was born with several abnormalities or
disabilities, including Tetralogy of Fallot3 and DiGeorge‟s Syndrome.4 After he was born,
Jamie lived with Mother in Davidson County, Tennessee. Mother also had three other
children, all of whom she had custody of at the time of Jamie‟s birth. Mother‟s other
children include Autumn G., Austin G., and Cy G. Both Austin and Cy had some special
needs involving learning and behavioral issues. Although the proceedings concerning
Mother‟s parental rights to Jamie did not begin until January 2013, Mother has a lengthy
history with the Department of Children‟s Services (“DCS”) that dates back to 2008.
On January 11, 2008, DCS filed a Petition for Custody with Request for Emergency
Removal and Request for Child Support in the Davidson County Juvenile Court. The
petition sought to remove the children from the legal custody of Mother. Jamie was two
months old when the petition was filed. DCS‟s petition asserted that Mother had several
untreated mental health issues and became violent against maternal grandmother
(“Grandmother”), whom Mother and the children lived with at the time. The record
indicates that Grandmother contacted DCS indicating that Mother had become “very
destructive and has a tendency to tear the house up when she becomes upset.” As a result of
this petition, the children entered DCS custody.
1
In cases involving minor children, it is the policy of this Court to remove the names of minor children and
other parties in order to protect their identities.
2
The parental rights of Jamie‟s biological father were also terminated by the trial court; however, he did
not appeal. Accordingly, Mother is the sole appellant in this case.
3
Tetralogy of Fallot is defined as:
[A] congenital heart anomaly . . . The primary symptoms in the infant are .
. . difficulty in feeding, failure to gain weight, and poor development. In
older children a typical squatting position and clubbing of the fingers and
toes are evident. A pansystolic murmur is usually heard, and the second
heart sound is faint or absent. . . .
Mosby’s Medical, Nursing, & Allied Health Dictionary 1603 (5th ed. 1998). In the record, the parties refer
to Jamie‟s condition as a “hole in his heart.”
4
DiGeorge‟s Syndrome is defined as “a congenital disorder characterized by severe immunodeficiency
and structural abnormalities, including hypertelorism; notched, low-set ears; small mouth; downward
slanting eyes; cardiovascular defects; and absence of the thymus and parathyroid glands.” Mosby’s
Medical, Nursing, & Allied Health Dictionary 488 (5th ed. 1998). “[H]ypertelorism” means “a
developmental defect characterized by an abnormally wide space between organs or parts.” Id. at 794. A
common type of hypertelorism is “ocular hypertelorism,” which is an abnormally wide space between the
eyes. Id. at 1137.
2
After a hearing on February 20, 2008, before the Juvenile Court of Davidson
County, the juvenile court entered its Agreed Order of Adjudication and Disposition. This
order adjudicated Jamie, along with his siblings, dependent and neglected “because of
[Mother‟s] ongoing mental health issues and her failure to take medication consistently.”
The juvenile court also found that Mother‟s instability led to her inability to provide
sufficient housing for the children and also led to the conflict with Grandmother. The
juvenile court noted that Mother had admittedly used marijuana at the time DCS filed its
petition in January 2008. Ultimately, the juvenile court approved an agreement between
the parties providing that Grandmother would be awarded temporary custody of Jamie and
Autumn. Custody of the other two children, Austin and Cy, was awarded to Catherine P.,
who is their maternal aunt. The court ordered Catherine P. to supervise all of Mother‟s
visitation with the children, which was to occur at Catherine P.‟s house. From a practical
standpoint, it is unclear whether Mother‟s visitation with Jamie at this point only occurred
under Catherine‟s supervision because Jamie resided in Grandmother‟s home with Mother.
The juvenile court‟s order provided that it was the court‟s “standard practice to allow a one
year time frame within which the parent will be given the opportunity to remedy the
conditions that necessitated foster care placement or temporary legal custody being granted
to a relative.” To this end, the court stated that Mother had one year (until January 2009) to
“rehabilitate [her] circumstances.” As discussed in detail infra, although there were a
multitude of proceedings concerning the children over the next several years, after this
order was entered, Jamie was never returned to Mother‟s custody.
Following the entry of the juvenile court‟s order, the juvenile court continued to
monitor whether Mother was making progress. In November 2008, Mother entered Family
Treatment Court, where she tested negatively on drug screens for several months. Mother,
Grandmother, and Jamie continued to live together for nearly two years. Upon additional
review by the juvenile court, the juvenile court entered an order on September 10, 2009,
stating that “[u]sually when a commitment to sobriety is present, other aspects of a client‟s
life fall into place. Unfortunately, that has yet to be the case.” The juvenile court noted that
Mother was still unemployed and lacked her own residence or a plan to pay for her own
residence. The court also found that it was unlikely she would be able to care for the
children without Grandmother‟s assistance and also found that she “does not seize an
active parenting role for her children.”5 The juvenile court afforded Mother sixty days
from the entry of this order to demonstrate to the court that she desired to be the children‟s
primary caregiver.
5
The court noted that Mother did not know where Cy G. attended school and that she did not regularly
attend the doctor‟s appointments for her special needs children.
3
After the expiration of the sixty days, on November 6, 2009, the juvenile court
entered another order reviewing Mother‟s progress and finding that it was not in the
children‟s best interest to be in the custody of Mother. While the court noted that Mother
had made sincere, but unsuccessful, attempts at obtaining employment, the court found that
Mother did not have the “temperament, patience, or consistency” to parent the children,
especially in light of Jamie and Austin G.‟s special needs. 6 Ultimately, this order
terminated Mother‟s involvement with the Family Treatment Court. The court placed legal
custody of three of the children (Austin G., Cy G., and Jamie) with Grandmother,7 but put
no restrictions upon Mother‟s visitation. Finally, the court reminded Mother that she was
“free to file a petition for a return of custody when she sees fit to do so.”
Jamie and his two brothers lived with Grandmother from February 20, 2008, the
date of the initial grant of custody to Grandmother, until she passed away on June 7, 2011.
Shortly before Grandmother passed away, in May 2011, she contacted Kathryn C. and
Steven C. (together, “Appellees”) to give them a power of attorney over Jamie. Kathryn C.
worked for an organization that provided in-home development therapy and other services
to Jamie at Grandmother‟s home. Before Grandmother passed away, she attended a court
appearance where both Mother and Appellees were present. At this time, the court granted
legal custody of Jamie to Appellees.8 Mother made no objection at this time to the transfer
of legal custody to Appellees. Shortly thereafter, on June 7, 2011, Grandmother passed
away.
After Grandmother‟s death, several petitions were filed concerning legal custody of
the four children. Appellees filed a petition for custody of Jamie. The paternal grandparents
filed a petition for custody of Austin G. and Cy G. The maternal grandfather, Richard B.,
(“Grandfather”) filed a petition for custody of all four children. The children‟s Guardian ad
Litem (“GAL”) filed a petition for Catherine P. to have custody of Autumn G. Finally,
Mother filed a petition for a return of custody, citing a material change in circumstances.
On August 2, 2011, the juvenile court held a trial on all of the above petitions. The
juvenile court entered an order on September 2, 2011. The court dismissed Mother‟s
petition based on her failure to prove a material change in circumstances. Moreover, the
court stated that Mother failed to remedy the conditions warranting removal of the children
6
Austin suffered from behavioral issues related to autism.
7
At some point, Mother was convicted of felony child abuse against her daughter, Autumn. The record
indicates that Autumn, at this point, resided with Catherine P., but does not indicate what conduct on
Mother‟s part was the basis for this conviction.
8
After Grandmother‟s death, Austin G. and Cy G. went to live with their paternal grandparents. Autumn G.
remained with Catherine P., Mother‟s sister.
4
originally. At this time, Mother remained unemployed and lacked housing, transportation,
and a driver‟s license. The court also found that Mother had removed herself from
medications used to treat her mental health issues. Additionally, Mother had incurred
domestic assault charges just several months prior to the hearing. Accordingly, the juvenile
court awarded legal custody of Jamie to Appellees; legal custody of Austin G. and Cy G. to
the paternal grandparents; and legal custody of Autumn G. to Catherine P. Mother was
limited to once-per-month visitation with all the children and telephone visitation twice per
week. The court specifically noted:
[I]f she misses the visitation, then the Court may stop
the visitation. If the visits go well and the Mother makes good
progress on her individual issues, the Court will increase her
visitation. Specifically, the Court again advised the Mother she
needs to obtain stable housing, transportation, employment,
alcohol and drug sobriety and mental health stability.
Several months after the court‟s grant of custody to the Appellees, on March 15,
2012, the Appellees filed a request against Mother for child support for Jamie. The court
entered an order requiring Mother to pay child support to the Appellees in the current
amount of $285.00 per month and retroactive support in the amount of $1,995.00, totaling
$328.33 per month. The record indicates that Mother failed to pay support as ordered;
however, Mother did begin paying some support after Appellees filed their petition to
terminate her rights. Ultimately, she made seven payments totaling $989.55 for the period
between March 26, 2013, and June 17, 2013. She also made two payments totaling $168.11
for the period between July 1, 2013 and July 15, 2013.
It appears that the visitation ordered by the court on September 2, 2011, continued
until July 2012, when the Appellees filed a Motion to Suspend and/or Modify Mother‟s
Visitation based on an alleged outburst of Mother at a recent visitation. On September 13,
2012, the juvenile court magistrate entered a written order specifically stating that it was
“not terminating Mother‟s visitation but leaving it in Mother‟s control based on the fact
that continued visitation will only occur once Mother is able to demonstrate compliance
with the directives in the Court‟s Order of September 2, 2011,” wherein the court ordered
Mother to address her issues with employment, transportation, and mental health. The
juvenile court also ordered Mother to obtain a mental health assessment before she could
seek a modification of this order.
On January 28, 2013, Appellees filed a petition to terminate Mother‟s parental
rights on several grounds: abandonment by willful failure to visit, abandonment by willful
failure to support, persistence of conditions, and incompetency. At some point prior to this
filing, Mother had appealed the magistrate‟s September 13, 2012, order purporting to
5
modify her visitation to the juvenile court. Mother had no visitation with Jamie while her
appeal was pending. After a hearing on January 29, 2013, the juvenile court revised its
order and permitted Mother to have visitation with Jamie on two separate dates in February
and March.
The juvenile court held a trial on Appellees‟ termination petition on various dates
between July 15, 2013, and May 18, 2014. Jamie was six years old at the start of trial. As
can be expected, much of the testimony concerned the circumstances surrounding
Mother‟s alleged failure to exercise visitation with Jamie, her alleged failure to financially
support Jamie, and her alleged failure to remedy the conditions that warranted Jamie‟s
removal from her custody initially.
Regarding visitation with Jamie, Mother testified that she was under the impression
that her visitation with Jamie was suspended by the juvenile court magistrate‟s September
13, 2012, order, discussed supra. She also testified that, in response to the purported
suspension of her visitation, she “appealed” the September 13, 2012, order to the juvenile
court judge, who then reinstated visitation by order entered February 20, 2013. Mother also
recounted various times where she had visited with the child while he was in Appellees‟
custody.
Mother also testified that she had been arrested in connection with several episodes
of domestic violence. Sometime in 1998, Mother pleaded guilty to a charge of child abuse.
Mother‟s sister, Catherine P., called the police and alleged that Mother had picked up her
sister‟s child by his neck and threw him across the room. Mother testified that she did not
pick him up by his neck, but she did pick him up “by his overalls, and I sat him. I did not
toss him.” She testified that she pleaded guilty primarily because she wanted out of jail.
For this incident, she was placed on probation for eleven months and twenty-nine days.
Mother‟s testimony also revealed that Mother had been convicted of felony child
abuse and neglect in 2000. Again, Mother alleged that she was “manipulated to plead
guilty,” after prosecutors asserted that she had beaten a three-month-old baby. Mother‟s
testimony as to how this incident occurred is confusing. From what we can discern, she
testified that she was babysitting when the baby was attacked by a puppy. 9 Mother again
9
Mother testified:
And I took the baby and decided that I was going to clean up on my room.
And I took the baby and laid - - I had a daybed. I laid her this way on the
bed (indicating). And I had a little puppy that I had with me. And I put it
up on the bed, and it scratched its face or the baby scratched its face. I do
not exactly know. But I went and told my mother about the baby. She said
all right. I told her I was scared for the child. Because the [baby‟s] mother
(Continued…)
6
pleaded guilty, but denied responsibility. She ultimately served nine months in jail for this
offense.
In addition to her testimony regarding the misdemeanor and felony child abuse
charges, Mother testified that she had been charged several times with domestic violence.
In 1998, Mother was charged with domestic violence against her sister‟s boyfriend. Again,
in 2003, Mother was charged with domestic violence after Grandmother called police
because Mother “got mad and threw [a] plate.” In 2004, Mother was charged with domestic
violence against Grandmother. In 2011, Mother was charged with domestic violence
against her sister at Grandmother‟s house.
Most recently, on July 3, 2013, Mother and her boyfriend, Marcus B., with whom
Mother lives, were both arrested and charged with domestic assault after an incident at
their home. Marcus B. told police that the altercation began over an argument concerning
Mother‟s Facebook page. Mother testified that the incident was largely the result of a
medication she was prescribed for headaches, which caused her to become angry and
combative. Her testimony indicates that she no longer takes this medication. Mother told
the police that she locked Marcus B. out of their house, and he kicked in the door. She then
locked herself in the bathroom, and Marcus B. kicked in that door as well. Marcus B. then
threw Mother on the bed, and she bit him on his thumb and head-butted him. The police
arrested both Mother and Marcus B. Ultimately, the court issued an order prohibiting
Mother and Marcus B. from having contact until the next court hearing on August 15,
2013. Mother‟s testimony regarding her compliance with this order is conflicting. First,
Mother testified that that she and Marcus B. immediately made up and that she moved back
into the house the day following the incident, in direct contravention of the no-contact
order. Mother testified that during this time, Marcus B. taught Mother how to shoot an
AR-15, a semi-automatic firearm. At another point in her testimony, Mother stated that she
moved in with a friend for a time, but then eventually moved back in with Marcus B.
Regardless, Mother testified that she contacted Marcus B. at least twice during the period
(…continued)
would call me and ask me if I would babysit the baby because of - - the
grandmother was mean to the baby. Excuse my French. Called the baby a
“bitch” and a “whore.” But she didn‟t call it once - - that once but she
called it that twice. Also my sister Kathy [sic] said that she had caught her
saying - - that she said, “Yeah. I watch the little - - and she caught herself
calling the baby a bitch again.” And - - but the mother would call me and
whisper in the phone, “Check the baby when she gets there.” And I said,
“Tiffany, I don‟t think that your grandmother is going to do anything to
this baby.” But at this time I‟m like six months pregnant. And Kathy [sic]
went out and got the baby. She brought the baby in. Then the next thing
you know I‟m being questioned . . .
7
in which she was to have no contact with him, explaining that she needed a ride to two
separate visitations. Although it is unclear from the testimony, the no-contact order appears
to have been dissolved at the August 15, 2013, hearing on the couple‟s domestic violence
charges.
Mother also testified as to the allegation that she failed to support Jamie. Mother
testified that although she had sought employment, she was unsuccessful and, therefore,
lacked stable employment at the time of trial. Mother‟s testimony regarding her work
history demonstrates sporadic employment history at several jobs. Sometime during June
and August 2012, Mother worked as a telemarketer for approximately one week and at a
store in the mall for approximately three weeks.
During the pendency of this case, she was employed in several capacities. First, she
testified that she received some income from housecleaning. Mother stated that she earns
“anywhere between $50 to $100” cleaning houses once or twice a week. In contrast,
Marcus B. testified that he was unsure of the precise amount Mother earned from cleaning
houses, stating it was “20 to 30 bucks here and there.” Although Mother earned income
sporadically from housecleaning throughout the relevant four-month period, she testified
that she gave the money to Marcus B. because he paid their rent and provided her
transportation to court appearances and visitations.
Although she testified that she cleaned houses sometimes twice a week, Mother
stated that she only has two regular customers. She said that these customers only request
her services once per month. Mother‟s testimony is unclear as to how many other clients
she cleans for during the week. She testified, however, that she cleaned houses less often so
she would be able to attend visitation with her children. She also stated that it was difficult
to find clients. Mother acknowledged that she was aware of several ways to increase her
customer base, such as advertising on Craigslist and putting signs through her
neighborhood; however, she never did either of those things. On cross-examination,
counsel for Appellees and Mother had the following exchange:
Q. And you clean at least one house a day or maybe two,
couldn‟t you?
A. Yes.
Q. So you could conceivably make $100 a day cleaning
houses, couldn‟t you?
A. I could have, but I didn‟t.
The record is unclear as to when she began cleaning houses and the last time she earned
money cleaning houses.
8
In addition to housecleaning, Mother testified that she also earned money by
working with her boyfriend, Marcus B., who worked at an auto body shop and also
“junked” cars for additional income. Marcus B. said that this money immediately “went
right back into the gas tank” because Marcus B. drove Mother to Manchester, Tennessee,
so she could attend the proceedings involving the removal of her other children. Marcus B.
corroborated Mother‟s testimony as to his payment for her help and testified that this
arrangement continued from about September 2012 until January 2013. Mother was able to
help less when her Father‟s cancer worsened during October 2012. Mother testified that
she was actively searching for employment during the relevant time period by applying for
jobs in her area. Mother testified that she searched for employment by “walking around my
surrounding areas” and turning in applications to various employers, including Burger
King, Auto Zone, Dollar General, Save-A-Lot, Papa John‟s, Kroger, and a dry cleaning
store.
Similarly, Mother testified that someone referred her to a manager at a local Waffle
House restaurant and said that if she would just go by “La Vergne [Waffle House] and let
them know that I did talk to her and could work for her.” Mother testified that she had not
yet turned in an application. Likewise, Mother testified that she had another job lined up at
“A Second Look Consignment” in Smyrna, Tennessee, but her testimony indicates she had
not pursued that opportunity yet. Additionally, Mother‟s records from her mental health
provider, Centerstone Community Mental Health Care Center (“Centerstone”), show that
Mother said she was “let go a[]lot” because her skills were poor, despite having earned a
high school diploma and attending some college.
Mother testified that she has filed for unemployment benefits, but she does not
receive any money from unemployment benefits. In contrast, Mother‟s Centerstone
records indicate that Mother declined to apply for disability benefits. At the same
appointment where Mother indicated her refusal to apply for disability benefits, the
counselor recommended that Mother apply via the internet for a public benefit called
Bridges to Care. Despite the fact that Mother appears to have internet access, 10 the record
does not indicate that Mother ever applied. Still, Mother receives over $497.00 per month
from a resource called Families First for her and three of her children. 11 She testified that
10
Marcus B. indicated to police after his domestic dispute with Mother that the dispute arose over the
online social networking site Facebook.
11
At some point during the trial, DCS returned custody of Austin and Cy to Mother. The two boys had
initially been placed in the custody of their paternal grandparents after being removed from Mother‟s care.
After the paternal grandparents decided they could no longer care for the boys, custody was given to the
biological father in January 2012. At some point, the biological father and the two boys were living in a
pop-up camper without running water or electricity. When DCS received a referral and contacted Mother,
(Continued…)
9
she is currently unemployed, but that she is “pretty busy.” She gets her children ready for
school in the morning and then stays at home during the day until they are finished with
school. During the day, she watches television and cleans the house.
Eventually, after the filing of the termination petition and with the assistance of a
DCS worker, Mother obtained employment at Goodwill as a “clothes grader.” During
training to become a clothes grader, Goodwill paid Mother $7.25 per hour. After Mother‟s
three weeks of training, Goodwill paid her $7.75 per hour. Mother testified that she called
the child support office immediately after being hired by Goodwill, and child support was
garnished from her check. Mother worked at Goodwill from March 3, 2013 until July 2,
2013. Goodwill ultimately terminated Mother‟s employment because she was late several
times.12
Mother testified that she still lacked a driver‟s license and transportation. 13
Generally, Marcus B. supported Mother and paid their rent and bills. Still, Mother testified
that she had obtained stable housing because she and Marcus B. lived in an apartment
together, and both signed the lease. Although Mother‟s testimony was inconsistent at
times, her testimony indicates that she lived with Marcus B. beginning in May 2012 and
that she may have lived with him even while there was an order prohibiting the couple from
contacting each other. Mother contends that she contributed to the couple‟s $1,175
monthly rent at least once in the amount of $50.00. Mother is unable to obtain
government-subsidized housing because of her felony conviction.
(…continued)
she told DCS she was unaware of these conditions. In September 2012, the boys entered foster care. DCS
developed a permanency plan for Mother to regain custody of the boys. Both boys, but especially Austin,
display severe learning and behavioral issues and were in and out of several foster homes. In July 2013, the
boys were returned to Mother for a trial home visit. On October 31, 2013, the boys were returned to
Mother‟s custody. Shortly thereafter, Autumn was returned to Mother‟s custody in January 2014.
12
We note that Mother also asserted that she had been sexually harassed by a co-worker while working at
Goodwill. She testified that a male co-worker followed her into the women‟s restroom one day and made
advances toward her. Mother filed a report against the co-worker, and he was terminated shortly after
management at Goodwill discovered that the incident had been recorded via videotape. According to
Mother, she was very upset after the incident, and she was moved to work in a different Goodwill building.
However, her co-worker‟s mother worked in Mother‟s new building, causing further issues. Although this
occurred before Mother was eventually terminated for being late too many times, it does not appear from
the record that this incident had any impact on Mother‟s termination.
13
Mother testified that she does not currently own a vehicle. She does not have a driver‟s license and has
not since approximately 2000. To obtain her license, Mother testified that she has to take the driving test
and pay a license reinstatement fee. Mother depends on Marcus B. for transportation.
10
Turning to Mother‟s testimony regarding her mental health treatment, Mother
contended that she had been compliant with her mental health therapy sessions and
medications. Mother suffered from mental health issues for years before her children were
removed from her care. Her mental health records indicate that she began treatment at
Centerstone on December 3, 1999. Her most recent cycle of treatment at Centerstone began
on September 28, 2012, shortly after the juvenile court‟s order of September 13, 2012
ordering her to address, inter alia, her mental health issues. Throughout her treatment
there, she has received several diagnoses, including intermittent explosive disorder, major
depressive disorder, cannabis dependent episodic, borderline personality disorder, and
bipolar disorder. Mother‟s Centerstone records indicate that these diagnoses resulted in
Mother suffering from periods of emotional instability, anger, and violent outbursts.
Mother stopped taking certain medications used to treat her mental health while pregnant
with Jamie. It is unclear from the record whether Mother‟s cessation of her medication was
ordered by her medical doctor. Still, Mother admitted that she did not resume taking her
prescribed medication even after Jamie‟s birth. Mother asserts however, that since the
children were removed from her care on February 20, 2008, she has consistently taken her
medication as prescribed and has consistently attended her therapy appointments. She
stated that if she was unable to attend an appointment, she promptly rescheduled.
On cross-examination, counsel for Appellees questioned Mother‟s alleged
compliance with her mental health treatment and medications. Centerstone and its
counselors keep a record of each scheduled appointment, including notes as to what was
achieved at the appointment. Numerous Centerstone records include notes from her
counselors stating that Mother “no-showed” for the appointment or canceled at the last
minute. On one record, a Centerstone representative noted that, “[Mother] claims unique
[circumstances] each time and accepts no responsibility.” Mother testified that many of
these records were simply incorrect. In all, from September 2012 until December 2012,
Mother attended four appointments and canceled or was a no-show for at least seven
appointments.
Mother‟s testimony regarding her compliance with her medication was often
confusing. During September 2012 through December 2012, Mother missed four
medication management appointments. It was at the medication management
appointments that Mother could receive refills on her prescriptions. After the termination
petition was filed in January 2013, Mother‟s attendance at her Centerstone appointments
improved. From January 2013 until October 2013, Mother attended twenty-two
appointments, and canceled or was a no-show for eleven appointments. Mother maintained
at trial that she did not feel as if the medications were working, but testified that she had
consistently been taking them. However, prior to October 2012, Mother testified that, prior
to October 2012, she had been off her medication for approximately ten months. When
Mother testified on July 15, 2013, she said that she had started taking a new medication on
11
April 2, 2013, and that was currently the longest period she had ever been compliant on one
medication. In further contradiction of Mother‟s direct testimony, the record includes as an
exhibit a letter dated January 25, 2013, from Ms. Audra Bush, a DCS case manager, to the
juvenile court wherein Ms. Bush states that Mother had expressed that she did not need all
of the medication prescribed by Centerstone and that Ms. Bush was currently having issues
with Mother‟s compliance at Centerstone.
Ms. Bush also testified at trial. Ms. Bush‟s testimony focused on Mother‟s therapy,
medication, and attempts to secure housing and employment. Ms. Bush testified that DCS
required Mother to obtain a mental health assessment, follow mental health
recommendations, be compliant with her medication management, obtain adequate and
stable housing, and secure a legal means of income.14 Ms. Bush stated that Mother and
Marcus B.‟s home was suitable for an additional child and that she did not doubt Mother‟s
housekeeping abilities. Further, she described Mother‟s attempts at securing employment
as “diligent.” She testified that, although Mother missed several of her mental health
appointments at Centerstone, “she always rescheduled those appointments.” However, on
cross-examination, Ms. Bush admitted that any public assistance Mother received was not
enough to pay her monthly rent. Still, Ms. Bush insisted that Mother‟s home was suitable
for Jamie‟s return, even though she was aware of the recent domestic violence incident
between Mother and Marcus B. She stated that she believed that Mother was compliant
with any anger management requirements set forth by DCS, but she admitted she actually
did not know whether Mother attended anger management and that she has not received
any Centerstone records indicating that she had.
At trial, Appellees, with whom Jamie currently resides, also testified. Appellees
described their time spent with Jamie, how they have bonded with him, and his
development while in their care. Kathryn C. first met Jamie when she worked doing
in-home developmental therapy for First Steps, Inc. (“First Steps”). The therapy typically
included one hour sessions of exercises to address Jamie‟s delays in motor skills and
cognitive development. Kathryn C. provided services at Grandmother‟s home to Jamie
beginning in May 2008 when he was six months old. She provided these services until
November 2010.
Regarding the in-home therapy sessions, Kathryn C. testified that she primarily
worked with Grandmother, and Mother was usually asleep when the sessions began.
Kathryn C. was required to keep notes of all visits in Grandmother‟s home, and she
indicated in her notes that Mother sometimes participated in the sessions. At trial, however,
Kathryn C. testified that Mother “was typically asleep on the couch or out of the room or .
These requirements appear to be connected to a permanency plan entered in connection to DCS‟s removal
14
of Austin and Cy, not Jamie.
12
. . playing on her phone in the kitchen. But my contact was primarily done with
[Grandmother].” 15 Kathryn C. indicated that Mother occasionally showed interest in
Jamie‟s therapy, but “[i]t kind of seemed to depend on when she had to go to court.”
Additionally, Kathryn C. testified that Mother would often yell at others in the home to
“shut up . . . because she was trying to sleep.” Kathryn C. also indicated that she was
concerned regarding the constant smoking in the home because of Jamie‟s heart condition.
She also testified that Mother often would say “That‟s not my responsibility,” when
requested to get the children ready or to change Jamie‟s diaper.
Jamie began to live with Appellees immediately after Grandmother passed away.
Steven C., Kathryn C.‟s husband, testified that Appellees‟ extended family supported the
decision, and Jamie‟s developmental issues had improved since the child had come to live
with them. Steven C. testified that he, Kathryn C., and Jamie shared a close bond.
Appellees and their witnesses generally testified that Mother‟s outbursts often
disrupted visitation while Jamie remained in Appellee‟s custody. At one visitation at a
local McDonald‟s restaurant, Mother became violent with her elderly father who was also
attending the visitation. Her father had recently been diagnosed with Stage IV cancer.
Mother cursed at him, screamed, and shoved him. According to Appellees, Jamie was in
close proximity. Mother also became combative with her sister, Catherine P., at a visitation
when Catherine brought her own children to the visitation. Mother believed Catherine‟s
children would take away from her visitation with Jamie. According to Appellees, Mother
began arguing with her sister, which brought the visitation to an end. These disruptions
often resulted in upsetting Jamie, and he would begin screaming, crying, and banging his
head against things.
Appellees indicated that Mother had a difficult time understanding Jamie during
phone visitation and became impatient with him as he was talking. Appellees testified that
they did not believe that Mother understood what appropriate phone behavior for Jamie
was, given his age and special needs. Appellees and their witnesses also testified that
Mother paid no support or made any provisions of in-kind support for the child prior to the
filing of the termination petition; instead, they testified that they only received child
support payments from Mother when it was garnished from her wages earned at Goodwill,
beginning after the filing of the termination petition.
Appellees also introduced the child‟s school records, which showed that he was
progressing academically. Appellees testified that they have taken the child for evaluations
at Vanderbilt University Medical Center, including speech development and occupational
Kathryn C. testified that the focus of her notes was not to judge the engagement of the parent or child‟s
15
caregiver at therapy, but rather to note the child‟s progress. For this reason, she testified that her notes often
did not include that Mother failed to engage with Jamie‟s therapy.
13
therapy evaluations. According to Appellees, they are involved at the school where Jamie
attends kindergarten and plan on enrolling him in a summer camp with other children.
Testimony from Jamie‟s pediatrician also showed that he has received appropriate
and regular medical attention while in Appellees‟ care. Jamie‟s pediatrician, Dr. Dana
Haselton, testified that the child‟s genetic conditions cause a variety of issues, including
heart issues and delays in speech and hearing development. Eventually, the child will need
surgery to correct some of the issues associated with these disorders. Dr. Haselton testified
that a review of the child‟s medical records shows that he had not been seen regularly by a
doctor prior to living with the Appellees. Dr. Haselton testified that, since she began seeing
Jamie, she has noticed significant improvements in Jamie‟s ability to maintain eye contact,
communicate, and engage with people. According to Dr. Haselton, Mother has never
attended a single appointment with the child, nor has she made any effort to contact Dr.
Haselton‟s office in any way about the child‟s medical conditions. When questioned about
the child‟s health, however, Mother was able to generally testify about the child‟s current
condition and the challenges that might result from his disorders.
After the conclusion of the trial, on June 6, 2014, the juvenile court entered a written
order regarding the termination of Mother‟s parental rights. The juvenile court concluded
that clear and convincing evidence existed as to two grounds for termination: (1)
abandonment by willful failure to support; and (2) persistence of conditions. 16
Additionally, the juvenile court concluded that clear and convincing evidence existed to
support termination of Mother‟s parental rights on the ground of abandonment by willful
failure to visit, but declined to conclude that it was terminating Mother‟s rights on this
ground because it found other grounds existed. The juvenile court also found that it was
in the best interest of Jamie for Mother‟s rights to be terminated. From this order, Mother
now appeals.
Issues
As we perceive it, Mother presents four issues:
1. Whether the juvenile court erred in finding that clear and
convincing evidence existed to prove that Mother willfully
abandoned the child by failing to pay support;
2. Whether the juvenile court erred in finding that clear and
convincing evidence existed to prove the ground of persistence
of conditions; and
16
The trial court declined to find that clear and convincing evidence supported the ground of incompetence.
Neither party raised this ground as an issue on appeal. Accordingly, we do not address it in this Opinion.
14
3. Whether the juvenile court erred in finding that clear and
convincing evidence existed to prove that termination of
Mother‟s parental rights was in the best interest of the child.
Appellees raise an additional issue for appeal:
1. Whether the juvenile court erred in finding that clear and
convincing evidence existed to prove that Mother willfully
abandoned the child by failing to visit.
Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996).
Thus, the state may interfere with parental rights only if there is a compelling state interest.
Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)).
Our termination statutes identify “those situations in which the state‟s interest in the
welfare of a child justifies interference with a parent‟s constitutional rights by setting forth
grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434
S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn.
Ct. App. Apr. 29, 2005)). A person seeking to terminate parental rights must prove
both the existence of one of the statutory grounds for termination and that termination is in
the child‟s best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360,
367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent‟s rights and the grave consequences
of the termination of those rights, courts require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for
termination and the best interest inquiry must be established by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and
convincing evidence “establishes that the truth of the facts asserted is highly probable . . .
and eliminates any serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such
evidence “produces in a fact-finder‟s mind a firm belief or conviction regarding the truth of
the facts sought to be established.” Id.
In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review as set forth in Tennessee
Rule of Appellate Procedure 13(d). As to the juvenile court‟s findings of fact, our review is
de novo with a presumption of correctness unless the evidence preponderates otherwise.
15
Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the juvenile
court or as supported by the preponderance of the evidence, clearly and convincingly
establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d
835, 838 (Tenn. 2002). When the resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying, is in a far better position than
this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415
(Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The
weight, faith, and credit to be given to any witness's testimony lies in the first instance with
the trier of fact, and the credibility accorded will be given great weight by the appellate
court. Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
Grounds for Termination
In their petition to terminate Mother‟s parental rights to Jamie, Appellees alleged
three related, but distinct, grounds for termination of Mother‟s parental rights:
abandonment by willful failure to visit, abandonment by willful failure to support, 17 and
the persistence of conditions. We address each in turn.
Abandonment Generally
Appellees first alleged abandonment by willful failure to visit and abandonment by
willful failure to support pursuant to Tennessee Code Annotated Section 36-1-113(g)(1)
and Tennessee Code Annotated Section 36-1-102(1)(A)(i) respectively. In pertinent part,
Tennessee Code Annotated Section 36-1-113(g) provides:
(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). Tennessee Code Annotated Section 36-1-102 defines
“abandonment,” in relevant part as follows:
17
The parental duty of support is separate and distinct from the parental duty of visitation. In re Audrey S.,
182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).
16
(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 a [sic] parent or parents or a 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 a 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).
The statutory definition of “abandonment” requires us to focus on the “period of
four (4) consecutive months immediately preceding the filing of a proceeding or pleading
to terminate the parental rights[.]” Tenn. Code Ann. § 36-1-102(1)(A)(i). In the present
case, the four-month period for purposes of establishing abandonment by failure to visit
and support is September 27, 2012, until January 27, 2013, the day before the petition was
filed.
In order for a court to terminate a parent‟s parental rights on the ground of
abandonment, that abandonment must be willful. In In re Audrey S., 182 S.W.3d 838
(Tenn. Ct. App. 2005), this Court discussed willfulness in the context of termination of
parental rights cases:
The concept of “willfulness” is at the core of the
statutory definition of abandonment. A parent cannot be found
to have abandoned a child under Tenn. Code Ann. §
36-1-102(1)(A)(i) unless the parent has either “willfully”
failed to visit or “willfully” failed to support the child for a
period of four consecutive months . . . . In the statutes
governing the termination of parental rights, “willfulness”
does not require the same standard of culpability as is required
by the penal code. Nor does it require malevolence or ill will.
Willful conduct consists of acts or failures to act that are
intentional or voluntary rather than accidental or inadvertent.
Conduct is “willful” if it is the product of free will rather than
coercion. Thus, a person acts “willfully” if he or she is a free
17
agent, knows what he or she is doing, and intends to do what he
or she is doing . . . .
* * *
Failure to visit or support a child is “willful” when a
person is aware of his or her duty to visit or support, has the
capacity to do so, makes no attempt to do so, and has no
justifiable excuse for not doing so. In re M.J.B., 140 S.W.3d at
654; see also Shorter v. Reeves, 72 Ark.App. 71, 32 S.W.3d
758, 760 (2000); In re B.S.R., 965 S.W.2d 444, 449 (Mo. Ct.
App. 1998); In re Estate of Teaschenko, 393 Pa.Super. 355,
574 A.2d 649, 652 (1990); In re Adoption of C.C.T., 640 P.2d
73, 76 (Wyo. 1982). . . .
The willfulness of particular conduct depends upon the
actor‟s intent. Intent is seldom capable of direct proof, and
triers-of-fact lack the ability to peer into a person‟s mind to
assess intentions or motivations. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a
person‟s actions or conduct.
In re Audrey S., 182 S.W.3d at 863–64 (internal citations and footnotes omitted).
In determining whether a parent‟s conduct was willful, it may become necessary in
a given case to evaluate events occurring prior to the start of the four-month period. Thus,
events occurring prior to the four-month period may bear on the willfulness of the parent‟s
conduct during the four-month period. See In re Alex B.T., No.
W2011-00511-COA-R3-PT, 2011 WL 5549757, at *6 (Tenn. Ct. App. Nov. 15, 2011)
(“Courts often consider events that occurred prior to the relevant period to determine if
there was interference with the biological parent‟s attempts to visit or support the
child[.]”); see also In re Keri C., No. E2010-00381-COA-R3-PT, 2010 WL 4739706, at
*16 (Tenn. Ct. App. Nov. 22, 2010) (explaining that the parent‟s conduct prior to the
four-month period is “relevant background and context for the necessarily fact-intensive
evaluation” of the parent‟s conduct during the four-month period).
“Whether a parent failed to visit or support a child is a question of fact. Whether a
parent‟s failure to visit or support constitutes willful abandonment, however, is a question
of law.” In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H.,
215 S.W.3d at 810). As previously discussed, this Court reviews questions of law de novo
with no presumption of correctness. Id.
18
Abandonment by Willful Failure to Support
We begin with the termination of Mother‟s rights based on the juvenile court‟s
conclusion that Mother abandoned Jamie by her willful failure to support him during the
relevant four months preceding the termination petition. For purposes of this subdivision of
abandonment, “willfully failed to support” or “willfully failed to make reasonable
payments toward such child‟s support” means the “willful failure, for a period of four (4)
consecutive months, to provide monetary support or the willful failure to provide more
than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-102(1)(D).
Token support is defined as support that “under the circumstances of the individual case, is
insignificant given the parent‟s means.” Id. at (1)(B).
In this case, there is no question that Mother provided no support for the child
during the relevant four-month period. Instead, the only question on appeal involves
whether that failure was willful. In the context of support, a parent‟s “[f]ailure to support a
child is „willful‟ when a person is aware of his or her duty to support, has the capacity to
provide the support, makes no attempt to provide the support, and has no justifiable excuse
for not providing the support.” In re Jarett M., No. W2014-01995-COA-R3-PT, 2015 WL
1647924, at *5 (Tenn. Ct. App. Apr. 13, 2015) (citing In re M.L.D., 182 S.W.3d 890, 896
(Tenn. Ct. App. 2005)).
Here, the juvenile court made the following specific findings concerning the ground
of abandonment by willful failure to support in its June 6, 2014 order:
29. [Mother] was ordered to pay child support to [Appellees]
pursuant to an Order Setting Support entered by this Court on
March 15, 2012[.] She was ordered to pay $285.00 per month
in current support and $43.33 [per month] in retroactive
support for a monthly total of $328.33. [Mother] has willfully
failed to pay child support as ordered. In the four months prior
to the filing of the Petition in this matter, [Mother] did not pay
child support. [The record] shows seven payments totaling
$989.55, for the period March 26, 2013 through June 17, 2013
. . . and two payments totaling $168.11, for the period July 1,
2013 through July 15, 2013.
30. [Mother] is abled bodied and capable of working. [Mother]
submitted no proof that she was disabled or incapable of
working. This was true from September 28, 2012 through
January 28, 2013. During this time, she did not have children
to care for and she in fact worked during this period of time.
Both [Mother] and her boyfriend, Marcus B[.], testified that
19
she frequently worked for him and he paid her for this work.
She also worked cleaning houses during this time period.
During her testimony, she even mentioned the name of at least
one, if not more, of her customers.
Based on the above findings, the juvenile court concluded that clear and convincing
evidence existed to terminate Mother‟s parental rights on the ground of abandonment by
willful failure to support. Mother appeals this determination and argues that her failure to
pay such support was not willful because she did not have the ability to pay.
Mother was clearly aware of her duty to provide support to Jamie as set forth in the
March 15, 2012 child support order in the amount of $328.33 monthly. Despite Mother‟s
acknowledgement of her support obligation, Mother testified that she did not pay child
support in the relevant four month period. Mother contends that her failure was not willful
due to her limited income, stemming from her unemployment, and the cost of her monthly
expenses.
A thorough review of the record leads this Court, like the trial court, to conclude that
Mother‟s failure to support the child was willful. First, the record indicates that Mother did
earn some sporadic income during the relevant four-month period, both by cleaning houses
and helping her boyfriend with his employment. Mother testified, however, that all of this
income was required to pay the couple‟s expenses. The record does indicate that Mother
typically turned over any income to Marcus B. for household bills, transportation, and gas.
Other than these sporadic jobs that offered little in the way of support, however,
Mother had no stable employment that would allow her to support the child. Simply
because Mother was unemployed or underemployed and not disabled does not necessarily
mean that her lack of paying child support was willful. In re M.P.J., No.
E2008-00174-COA-R3-PT, 2008 WL 3982912, at *10 (Tenn. Ct. App. 2008) (discussed in
detail, infra). Instead, the inquiry becomes whether the parent‟s unemployment or
underemployment is willful. Id. Upon review of the record in this case, it appears that
Mother, despite some effort on her behalf, has remained unemployed because of her
intentional failure to follow through with several opportunities to become employed.
Although Mother‟s testimony reveals numerous places of employment where Mother has
applied for a job, Mother‟s testimony also reveals that she has turned down or failed to
pursue multiple employment opportunities that would produce income. See In re M.P.J.,
2008 WL 3982912, at *10 (“In light of Father‟s testimony that he was offered employment
and he declined that employment, we conclude that his unemployment was voluntary.”).
Mother‟s testimony generally indicates apathy toward the concept of finding suitable
employment in an effort to support her children. For example, Mother indicated that she
had lined up employment opportunities at Waffle House and a local consignment store.
20
Instead of pursuing these opportunities, Mother testified that she often stayed at home and
watched television or cleaned during the day. In addition, Mother testified that she could
have advertised her cleaning services to increase her customer base, allowing her to make
up to $100.00 per day, but that she simply declined to make the effort. Mother‟s failure to
pursue these opportunities does not appear to have been due to any external issues beyond
her own control. Instead, Mother‟s failure to earn sufficient income to support her son
appears to simply have been the product of her own refusal to make an effort to do so. For
example, Mother‟s counselor at Centerstone noted that Mother expressed animosity
toward all authority figures mentioned, including bosses, and that Mother simply did not
want to do some of the jobs she might be qualified for, such as working at a fast food
restaurant. Moreover, from the record, it appears that Mother lost the jobs that she did have
due to her own failure to comply with the rules of her employment. Under these
circumstances, we must conclude that Mother‟s inability to support her child is a product of
her own making.
We note that some recent Tennessee cases have come to different conclusions
regarding whether a parent‟s failure to support his or her child is willful. These cases,
however, are easily distinguishable from the case-at-bar. First, in In re Adoption of Angela
E., 402 S.W.3d 636 (Tenn. 2013) the child‟s mother and stepfather sought to terminate the
parental rights of the child‟s biological father for his alleged willful failure to support. Id. at
640. The child‟s biological father, a medical doctor, earned income of approximately
$150,000.00 annually. The biological father undisputedly provided support in the amount
of $3,500.00 during the relevant four-month period. Under a previous court order,
however, the biological father was ordered to pay $10,000.00 during this period. Id. The
child‟s mother argued that biological father‟s payment was meager given his means, and
that, therefore, his support payment should be deemed token. Id. (citing Tenn. Code Ann. §
36-1-102(1)(B)). On appeal, the Tennessee Supreme Court first considered the evidence in
the record regarding the biological father‟s income and expenses, which evidence it
deemed “limited at best.” Id. The Court determined that it could not evaluate the biological
father‟s capacity to pay more support than he had paid because of the sparse evidence. Id.
at 641. Ultimately, the Court agreed with the trial court‟s conclusion that “Father‟s
payment of $3500 during the four months immediately preceding the petition for
termination precluded a finding of abandonment.” Id.
Another recent case, In re Noah B.B, held that clear and convincing evidence did
not exist as to a mother‟s willful failure to support when the petitioners failed to show the
mother‟s financial means, expenses, or obligations during the relevant four-month period.
In re Noah B.B., No. E2014-01676-COA-R3-PT, 2015 WL 1186018, *9 (Tenn. Ct. App.
Mar. 12, 2015). Unlike the father in Angela E., however, the mother in Noah B.B. was
unemployed and had not paid any support to the child during the relevant four-month
period. Like in Angela, the evidence regarding her capacity to pay support was meager.
21
See id. at *8. Mother testified that she graduated from high school, had “a little bit of
college” education, and was physically healthy. Id. At the time of trial, she stated she was
unemployed but searching for a job. Id. Noting the insufficiency of evidence concerning
the mother‟s capacity to pay, the court opined that “[i]t is not enough for a petitioner to
„simply prove that [m]other was not disabled during the relevant timeframe‟ and therefore
assume that she was capable of working and paying child support.” Id. at *9 (citing In re
Josephine E.M.C., No. E2013-02040-COA-R3-PT, 2014 WL 1515485, at *18 (Tenn. Ct.
App. Apr. 17, 2014)). Because there was also a suggestion that mother‟s unemployment18
was due to a prior back injury and her testimony that her criminal record prevented her
from obtaining employment, there was some question as to whether mother may have had a
justifiable excuse for the unemployment. Under these circumstances, the Court of Appeals
concluded that there was simply insufficient evidence in the record to meet the high clear
and convincing burden. Id. at *9.
The cases of Angela E. and Noah B.B. indicate that a court can only determine
willfulness of a parent‟s failure to support where there is sufficient evidence regarding the
parent‟s ability to pay. The facts presented in Angela E. and Noah B.B. are simply not
analogous to this case. First, unlike in Angela E. where the biological father actually did
make some payments to support the child during the relevant four-month period, Mother
has not paid anything during the relevant time frame in this case. 19 Thus, in Angela E.,
the issue was not whether biological father had some capacity to pay support and instead
voluntarily chose not to make an effort to meet his support obligation, but instead involved
whether biological father could have paid more, given his means. Biological father‟s
expenses were, therefore, highly relevant to that determination. The facts in Noah B.B. are
somewhat closer to the facts here, but involve evidence that was simply not presented in
this case: that mother‟s inability to obtain employment may have been the result of issues
outside her control. Thus, neither Angela E. nor Noah B.B. require this Court to hold that
Mother‟s failure to pay support in this case was not willful.
Furthermore, we do not interpret either Angela E. or Noah B.B. as holding that
there cannot be a finding of willful failure to support a child even where the evidence
supports a finding of willful unemployment. Indeed, other cases have held the opposite.
For example, in In re M.P.J., No. E2008-000174-COA-R3-PT, 2008 WL 3982912 (Tenn.
18
The Court of Appeals noted that there was not even sufficient evidence in the record to actually
determine whether the mother was actually unemployed during the relevant period. Id. at *9.
19
In addition, we are cognizant of the evidence demonstrating that Mother paid child support after the
filing of the petition when it was garnished from her Goodwill wages. However, Tennessee Code
Annotated Section 36-1-102(1)(F) provides that “[a]bandonment may not be repented of by resuming
visitation or support subsequent to the filing of any petition seeking to terminate parental or guardianship
rights or seeking the adoption of a child[.]”
22
Ct. App. Aug. 27, 2008), the mother sought to terminate biological father‟s parental rights
for, inter alia, abandonment by failure to support. It was undisputed that the biological
father was unemployed during the relevant four-month period. The Court of Appeals,
however, stated that the dispositive issue was not whether biological father was
unemployed, but whether the unemployment was willful. Because the evidence showed
that the biological father was offered employment, but declined to accept that employment,
the Court of Appeals held that his unemployment was voluntary. Id. at *10. The Court of
Appeals concluded that because biological father‟s inability to pay resulted from his
voluntary unemployment, his failure to pay was willful for purposes of Tennessee Code
Annotated Section 36-1-102. Id. (“Had he accepted the employment offer, he would have
had an income and could have made at least some support payments.”).
From the record as a whole, we conclude that Mother has abandoned Jamie based on
her willful failure to support him. The juvenile court‟s ruling on this ground is affirmed.
Although only one ground for termination of parental rights must be met, the Tennessee
Supreme Court has directed this Court to review the findings of fact and conclusions of law
as to each of the juvenile court‟s grounds for termination in order to avoid unnecessary
remand. See In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we
continue on to consider whether the ground of abandonment by willful failure to visit was
also established in this case.
Abandonment by Willful Failure to Visit
Another way to prove abandonment is by establishing “the willful failure, for a
period of four (4) consecutive months, to visit or engage in more than token visitation.”
Tenn. Code Ann. § 36-1-102(1)(E). Again, there is no dispute in this case that Mother had
no visitation with the child during the relevant four-month period. Mother argues,
however, that her failure to visit with the child was not willful because she was prevented
from visiting the child by an order of the juvenile magistrate and that she was actively
pursuing legal action to overturn that order during the four-month period. From the record,
we agree.
As previously discussed, prior to the filing of the termination petition, the juvenile
magistrate suspended Mother‟s visitation pending further orders of the court. In its
September 13, 2012 order, the magistrate said:
The Court is not terminating Mother‟s visitation but leaving it
in Mother‟s control based on the fact that continued visitation
will only occur once Mother is able to demonstrate compliance
with the directives in the Court‟s Order of September 2, 2011,
wherein Mother was advised that “she needs to obtain stable
23
housing, transportation, employment, alcohol and drug
sobriety, and mental health stability.”
The magistrate required Mother to complete a mental health assessment and stated
that, once Mother completed the above requirements, she could present herself to the court
for further modification of visitation. Mother appealed the magistrate‟s order to the
juvenile court judge. During the pendency of the appeal of this order to the juvenile judge,
Mother completed a mental health assessment and received treatment. Ultimately, by
written order entered February 20, 2013, the juvenile court judge reinstated visitation,
listing a certain time and place for Mother to have visitation with Jamie on two separate
occasions.
Ultimately, in terminating Mother‟s parental rights, the juvenile court found that
Mother‟s non-compliance with the court order of September 2, 2011, (i.e. the order
denying Mother custody of all four children) was what caused the suspension of her
visitation. Specifically, the court stated that Mother was put “on notice through [the
court‟s] numerous orders requiring her to address the issues which resulted in the initial
removal of her children.” Because Mother waited over a year from the September 2, 2011,
order to make any effort to address these issues (e.g., receiving a mental health assessment)
and only did so after the magistrate specifically suspended her visitation, the juvenile court
found that Mother caused the suspension of visitation. Accordingly, the juvenile court
found Mother‟s failure to visit was willful.
Still, despite its detailed findings indicating that Mother‟s failure to visit was
willful, the juvenile court‟s written order states: “[F]inding other grounds for termination
of parental rights, the Court will not enter a finding regarding abandonment for willful
failure to visit.” We note that trial courts should address all of the alleged grounds for
termination to prevent delay in rendering a final decision. In re D.L.B., 118 S.W.3d 360,
367 (Tenn. Ct. App. 2003). While we realize the juvenile court made detailed findings of
fact regarding this ground, it is unclear to this Court why the juvenile court determined that
the existence of other grounds for termination would prohibit the court from finding the
existence of another ground inappropriate. Our Supreme Court has stated:
The trial court is required to find only one statutory ground for
termination of parental rights. See Tenn. Code Ann. §
36-1-113 (2001). However, given the importance of
establishing the permanent placement of a child who is the
subject of a termination of parental rights proceeding, the trial
court should include in its final order findings of fact and
conclusions of law with regard to each ground presented. If the
trial court addresses each ground that is raised in a termination
24
proceeding, the child‟s permanent placement will not be
unnecessarily delayed due to a remand for findings on alternate
grounds.
Id.
The discrepancy in the juvenile court‟s order does not change our standard of
review. Additionally, we still consider whether the facts, either as found by the trial court
or supported by a preponderance of the evidence, clearly and convincingly establish the
ground of abandonment by willful failure to visit. Tenn. R. App. P. 13(d); Jones v. Garrett,
92 S.W.3d 835, 838 (Tenn. 2002). Accordingly, we turn to the Mother‟s contention that
because of the suspension of her visitation in the September 2, 2011 order, and her appeal
of that order, Mother‟s failure to visit was not willful.
In its ruling as to this ground, the juvenile court does not discuss the testimony of
Mother, but appears to base its decision solely on the fact that its order stated that visitation
could be modified based on Mother‟s compliance with certain conditions. The juvenile
court‟s order makes no reference to Mother‟s appeal of the suspension of her visitation to
the juvenile court judge. Nor does the court discuss whether Mother prosecuted her appeal
within the relevant four-month time period. While the juvenile court does render some
findings of fact as to this ground, intent should be determined by the sum of a party‟s
actions and conduct. In re Audrey S., 182 S.W.3d at 864. Here, it is clear that Mother
made efforts to appeal and argue the suspension of her visitation. Additionally, shortly
after the September 13, 2012 order suspending her visitation, she obtained a mental health
assessment and began treatment presumably in an effort to regain visitation.
The Tennessee Supreme Court considered a similar issue in In re Adoption of
A.M.H., 215 S.W.3d 793 (Tenn. 2007), which involved a termination of rights petition
filed by the guardians of the child against the child‟s biological parents on the ground of
abandonment by willful failure to visit. Id. at 796. The biological parents of the child
undisputedly exercised no visitation with the child in the relevant four-month period. Id. at
801–02. However, immediately prior to the four-month period, custodial parents refused to
permit the biological parents to take the child from the guardians‟ home for family pictures
and the police were called to escort the biological parents off the guardians‟ property. Id. at
801. Less than a month later, the biological parents sought judicial intervention to regain
physical and legal custody of their child. A few months later, the biological parents filed a
petition to regain custody of the child, and parents were actively litigating that case when
the guardians filed their termination petition. Id. at 802. The Tennessee Supreme Court
concluded that these facts failed to establish willful failure to visit, stating:
25
Here, we are presented with a situation in which the parents of
[the child] actively pursued legal proceedings to regain
custody of [the child] during the “abandonment” period but
failed to visit for a period of four consecutive months
immediately prior to the filing of a petition for termination of
parental rights. . . .We hold that the evidence in this case does
not support a finding that the parents intentionally abandoned
the [child].
Id. at 810. The Court further explained its holding, opining:
Th[e] undisputed evidence does not support a finding that the
[biological] parents‟ failure to visit [the child] was willful.
Where, as here, the [biological] parents‟ visits with their
child have resulted in enmity between the parties and where
the [biological] parents redirect their efforts at maintaining a
parent-child relationship to the courts the evidence does not
support a “willful failure to visit” as a ground for
abandonment. Therefore, we hold that there has been no
willful abandonment and reverse the termination of parental
rights.
Id. at 810–11 (footnote omitted). Thus, the Tennessee Supreme Court held that even where
a parent has not visited a child in the relevant four-month period, that fact alone is
insufficient to support a finding of willful failure to visit where visitation has been thwarted
by the other party and the parent is actively pursuing legal proceedings to regain custody or
visitation with the child.
From our review of the record, the facts in this case are somewhat analogous to In re
Adoption of A.M.H. because Mother was pursuing visitation with Jamie by appealing the
order suspending visitation and attempting to comply with the juvenile magistrate‟s
requirements during the relevant period. Although the record in this case does not provide
her legal basis for pursuing the appeal of the magistrate‟s September 13, 2012, suspension
of her visitation, the record does indicate that she did appeal that order. Furthermore, the
juvenile judge did indeed enter an order overturning the magistrate‟s ruling and providing
that Mother was entitled to visitation. It is unclear from the record as to whether the
juvenile judge reinstated Mother‟s visitation because it concluded that the juvenile court
erroneously suspended Mother‟s visitation or whether it found that Mother had complied
with the magistrate‟s requirements. Regardless, Mother successfully obtained
reinstatement of her visitation, and there is no dispute that she resumed visiting with the
child once she was permitted to do so.
26
Pursuant to Tennessee Code Annotated Section 37-1-107, Mother was required to
file her appeal within five days to prevent the order suspending her visitation from
becoming a final order. Thus, it appears that Mother‟s appeal was pending during the entire
relevant four month period. It also appears that Mother followed through with her appeal as
it was heard by the juvenile judge on January 29, 2013, one day after the filing of the
termination petition. Thus, we can infer that, at some point during the four months
preceding the termination petition, Mother set her appeal of the juvenile magistrate‟s order
for a hearing. Accordingly, during the four-month period before the petition was filed,
albeit after numerous chances to correct certain lifestyle and mental health issues or risk
losing visitation, Mother was actively pursuing visitation with Jamie.
We also note that Mother regularly attended visitation with Jamie before the
relevant four-month period, and this regular visitation allowed Jamie to maintain some sort
of relationship with Mother. Thus, Mother‟s previous efforts to visit with Jamie support
our conclusion that Mother did not willfully fail to visit the child. See generally In re Mark
A.L., 2013 WL 5536801.
Because Mother was clearly making an effort to reestablish visitation with Jamie
during the relevant four-month period, we must conclude that the Appellees failed to
establish by clear and convincing evidence that Mother willfully failed to visit with the
child pursuant to Tennessee Code Annotated Section 36-1-102.
Persistence of Conditions
We next consider the issue raised by Mother regarding the juvenile court‟s finding
of persistence of conditions. Persistence of conditions requires the trial court to find, by
clear and convincing evidence, that:
The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child‟s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child‟s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at any early date so that the child can be safely
returned to the parent(s) or guardian(s) in the near future; and
27
(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).
“A parent‟s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the parent‟s
care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct.
App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-CV, 2000
WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the conditions
which led to the removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6
(citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990)).
“Where . . . efforts to provide help to improve the parenting ability, offered over a long
period of time, have proved ineffective, the conclusion is that there is little likelihood of
such improvement as would allow the safe return of the child to the parent in the near
future is justified.” Id. The purpose behind the “persistence of conditions” ground for
terminating parental rights is “to prevent the child‟s lingering in the uncertain status of
foster child if a parent cannot within a reasonable time demonstrate an ability to provide a
safe and caring environment for the child.” In re A.R., No. W2008-00558-COA-R3-PT,
2008 WL 461675, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re D.C.C., No.
M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).
In concluding that the ground of persistence of conditions was proved by clear and
convincing evidence, the juvenile court stated:
[Mother] has failed to support Jamie G[.]; failed to exercise
regular visitation; failed to maintain a stable source of income,
housing, or transportation; and failed to comply with the
directives of the Centerstone personnel including directives in
regards to prescription medications for her previously
diagnosed mental health disorders.
It is undisputed that the child in this case was removed from Mother‟s home by
order of the Davidson County Juvenile Court more than six months prior to the initiation of
the termination proceedings. However, Mother argues that the record lacks sufficient
evidence to support the juvenile court‟s conclusion that the conditions that led to the
child‟s removal, specifically Mother‟s untreated mental conditions and her lack of support,
still persist and would, in all reasonable probability, subject the child to further abuse or
neglect. Upon a thorough review of the record, we respectfully disagree with Mother‟s
argument.
28
Mother‟s mental health and her treatment thereof were at issue in juvenile court
proceedings involving Mother as far back as January 2008. While Mother disputes that her
mental conditions make her unfit to parent, the juvenile court made specific credibility
findings as to Mother‟s testimony concerning her mental health treatment. As it relates to
Mother‟s medication management, the trial court found:
Although [Mother] continues to insist that she is compliant
with the medication necessary to address her serious mental
health diagnoses, her testimony is again not credible and is in
contradiction to the Centerstone Mental Health records.
In addition to the specific findings of credibility, the trial court also noted generally
that it simply did not consider Mother to be a credible witness. Findings of fact based on
witness credibility are given great deference on appeal. It is well-settled that when the
resolution of issues in a case depends upon the truthfulness of witnesses, the trial judge
who has the opportunity to observe the witnesses and their manner and demeanor while
testifying is in a far better position than this Court to decide those issues. See McCaleb v.
Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834,
837 (Tenn. Ct. App. 1997). The trial court‟s findings on credibility, whether express or
implicit, are entitled to great deference on appeal. See Taylor v. McKinnie, No.
W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug. 5, 2008).
Here, the juvenile court‟s finding of the persistence of conditions was clearly based upon
its credibility finding that Mother had not made as much progress as she indicated in her
testimony. Accordingly, where the trial court‟s factual determinations are based on its
assessment of witness credibility, this Court will not reevaluate that assessment absent
clear and convincing evidence to the contrary. Franklin Cnty. Bd. of Educ. v. Crabtree,
337 S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002)).
It is undisputed that Mother suffers from a variety of mental health issues, including
intermittent explosive disorder, major depressive disorder, cannabis dependent episodic,
borderline personality disorder, and bipolar disorder. Because of these mental health
issues, the juvenile court repeatedly ordered Mother to endeavor to remedy these problems,
including by attending Centerstone counseling and diligently taking her prescribed
medication. Relying in large part on Mother‟s Centerstone records, the trial court
concluded that Mother had not succeeded in remedying her problems and that it was
unlikely that she would do so in the future. Accordingly, we will first consider those
records.
According to Mother‟s Centerstone records, Mother‟s mental health issues resulted
in poor impulse control, irritability, frustration, lack of anger management skills, and lack
29
of coping skills. Her records further indicate that Mother exhibited “[e]xtremely poor”
judgment. Mother‟s records reflect that she was often unwilling to take responsibility for
missed appointments or for her prior convictions for child abuse. The records also indicate
that Mother was not properly attending scheduled appointments at Centerstone. For
example, during the approximately four-month period prior to the filing of the termination
petition, Mother missed more appointments than she attended at Centerstone and was not
making progress in addressing her mental health concerns. Furthermore, because Mother‟s
missed appointments often involved medication management, it is clear that Mother could
not be fully compliant with her prescribed medication because she did not attend
appointments wherein she was to obtain refills on her prescriptions. Nothing in the records
indicates that Mother had made any progress in addressing the mental health issues that
kept her from parenting the child.
Despite the detailed Centerstone records indicating that Mother often cancelled or
no-showed for her appointments, Mother asserted that these records were incorrect.
Mother, however, offered no credible evidence to support a finding that these records were
erroneous or altered to place Mother in an unfavorable light. Additionally, on appeal,
Mother offers no clear and convincing evidence to set aside the trial court‟s credibility
finding. Accordingly, we agree that Mother was simply not credible on this issue.
Mother asserts, however, that her compliance is supported by other evidence in the
record, including the testimony of Ms. Bush, the DCS worker. Ms. Bush‟s testimony
likewise contradicted the other evidence in the record, and at times, her own prior
statements. For example, Ms. Bush admitted that she filed a letter with the trial court just
days before Appellees‟ termination petition was filed.20 In this letter, Ms. Bush detailed
Mother‟s refusal to follow Centerstone‟s directives and the fact that her mental health
issues remained largely unchecked. This letter, coupled with the Centerstone records and
the other testimony at trial, clearly and convincingly demonstrate that Mother was not
compliant with the juvenile court‟s order to address her mental health issues. After
considering all of the testimony and the Centerstone records, the trial court‟s ruling
demonstrates that it gave more weight to the detailed and lengthy records from Centerstone
than to Mother and Ms. Bush‟s contradictory testimony. Based on the evidence in the
record and the trial court‟s credibility finding, we agree that the evidence in the record
supports the juvenile court‟s factual findings regarding Mother‟s compliance with her
mental health directives.
From our review of the Centerstone records and the testimony at trial, it is clear that
Mother‟s mental issues have not been remedied and, therefore, “prevent the child‟s safe
20
The letter does not indicate to whom it was directed. It appears that the letter merely served to
memorialize Ms. Bush‟s observations in the trial court‟s file.
30
return to the care of” Mother. Tenn. Code Ann. § 36-1-113(g)(3). Here, testimony shows
that Mother has had violent outbursts, directed at Grandmother, Grandfather, and Marcus
B. Mother‟s recent inappropriate behavior at visitation has caused the child considerable
distress. Even more distressing, Mother has pleaded guilty or been convicted of three
separate charges of child abuse and has been arrested for domestic violence on several
occasions. Rather than treating the mental illnesses that led to these violent episodes,
Mother failed to diligently follow Centerstone‟s requirements, often missing appointments
and failing to attend appointments dealing with her medication management. Mother‟s
conditions, which often lead her to become easily aggravated, frustrated, and violent,
simply make her unable to parent Jamie, a special needs child.
Additionally, it appears that Mother simply refuses to take responsibility for her
own actions. While Mother‟s refusal to admit that she has failed to properly attend
Centerstone Counseling, as the records clearly show, is somewhat troubling to this Court,
we are far more concerned with Mother‟s refusal to take responsibility for the multiple
times that she had been charged with abuse of a child. In every case, Mother testified that
these charges were false, but in every case, Mother either pleaded guilty or was found to
have committed a crime against a child. This Court has previously considered a parent‟s
refusal to take responsibility for his or her anger management issues in concluding that the
ground of persistent conditions had been established. See State Dept. of Children’s Servs.
v. D.A.B., No. E2006-01490-COA-R3-PT, 2006 WL 3694449, at *15 (Tenn. Ct. App. Dec.
15, 2006) (considering father‟s refusal to accept responsibility for his anger management
problem as evidence that the conditions that led to the child‟s removal persisted). Here,
Mother not only refuses to take responsibility for her anger management issues, but she
refuses to take responsibility for her prior convictions for child abuse.
The evidence also shows that Mother remains unemployed, lacks a stable source of
income, remains without a driver‟s license or transportation, and lacks a safe and stable
home environment. 21 Essentially, Mother has refused or been unable to make any
meaningful change in her circumstances. For example, regarding her inability to maintain
employment, Mother‟s Centerstone records from November 12, 2012 indicate that Mother
expressed animosity toward all authority figures mentioned, including her bosses, and that
Mother “does not want to do many [of the jobs] she might be qualified for (eg. Mother
21
The witness from DCS, Ms. Bush, testified that Mother did not have stable housing before moving in
with Marcus B. However, at trial, Ms. Bush testified that Mother did have stable housing at the time of trial,
despite the fact that Mother did not earn enough income to cover her own rent and the fact that both Mother
and Marcus B. had been recently arrested for domestic violence. It appears that the trial court did not find
that Ms. Bush‟s conclusion that Mother had suitable housing was credible. The juvenile court found, and
we agree, that “but for Marcus B[.], [Mother] would more likely than not be without housing[.]” The
precariousness of Mother‟s situation is exacerbated by the fact that Mother and Marcus B. were involved in
a recent domestic violence incident, which certainly indicates that their relationship is less-than-stable.
31
stated that she “[didn‟t] want to do fast food or I‟ll get fat and be diabetic.”) Mother
testified several times that she would rather be a stay-at-home mother than be employed.
Mother‟s testimony indicates that, while she has submitted several employment
applications, she has no sincere interest in financially supporting her children. Essentially,
even after numerous opportunities, Mother has not regained control of her circumstances.
She is still financially unstable, making her unable to financially support Jamie and provide
him with a stable environment. Mother is essentially in the same position she was when
Jamie was removed from her care initially.
Last, the continuation of the parent-child relationship between Mother and Jamie
would greatly diminish Jamie‟s chance to integrate into a permanent home with Appellees,
as evidenced by the negative effects produced at visitation with Mother. As detailed in the
testimony, Jamie often becomes emotionally upset and disturbed because of Mother‟s
behavior at visitation. A continuation of this confusing and problematic parent-child
relationship would disrupt Jamie‟s integration into a new, stable home. Based on the
foregoing, we conclude that the juvenile court did not err when it found that the ground of
persistence of conditions was proved by clear and convincing evidence.
Best Interest of the Child
When at least one ground for termination of parental rights has been established, the
petitioner must then prove by clear and convincing evidence that termination of the
parent‟s rights is in the child‟s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn.
Ct. App. 1994). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child‟s best interest. Id.
Because not all parental conduct is irredeemable, Tennessee‟s termination of parental
rights statutes recognize the possibility that terminating an unfit parent‟s parental rights is
not always in the child‟s best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest of
the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child‟s best interest must be
viewed from the child‟s, rather than the parent‟s, perspective.” Moody, 171 S.W.3d at
194.
The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to make
it safe and in the child's best interest to be in the home of the
parent or guardian;
32
(2) Whether the parent or guardian has failed to affect 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
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent‟s or guardian‟s mental and/or
emotional status would be detrimental to the child or prevent
the parent or guardian from effectively providing safe and
stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by
the department pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent‟s rights is in the best
interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a single factor
or other facts outside the enumerated, statutory factors may dictate the outcome of the best
interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
33
Ascertaining a child‟s best interests does not call for a rote
examination of each of Tenn. Code Ann. § 36-1-113(i)‟s nine
factors and then a determination of whether the sum of the
factors tips in favor of or against the parent. The relevancy and
weight to be given each factor depends on the unique facts of
each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of
one factor may very well dictate the outcome of the analysis.
In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
Based upon the foregoing discussion, it is clear that Mother has struggled to make
an adjustment of circumstances, conduct, or conditions so as to make it safe and in Jamie‟s
best interest to be in her care. Despite DCS‟s efforts and efforts of various support
agencies, Mother has failed to make a lasting adjustment, as evidenced by the fact that she
remains unemployed and without a driver‟s license or transportation. More importantly, it
is unclear whether her current mental state would promote Jamie‟s well-being if returned to
her, as evidenced by Mother‟s most recent arrest for domestic violence against Marcus B.
Despite efforts to find employment, Mother has failed to support Jamie. Further, she has
failed to maintain an active role in the developmental and medical aspects of Jamie‟s life.
The record indicates that Jamie has done well in Appellees‟ care. Kathryn C.
testified that Jamie entered her home on May 31, 2011. She testified that she has witnessed
Mother‟s failure to understand Jamie‟s developmental struggles and has witnessed Mother
become frustrated with him. She also testified that Mother‟s outbursts often caused
visitations to go awry, which resulted in Jamie becoming angry, screaming, and banging
his head. Kathryn C. also testified that Jamie has bonded extremely well with her family,
including her husband Steven C. She stated that Jamie has adapted well since the birth of
Appellees‟ biological child, and the two children behave like brothers.
Regarding Jamie‟s well-being in Appellees‟ care, both Appellees‟ testified that
Jamie is progressing academically, medically, and developmentally. Kathryn C. testified
that the child‟s medical condition will require routine monitoring and extensive medical
treatment in the future. Appellees have ensured that the child receives appropriate medical
care; in contrast, testimony shows that Mother often declined to participate in the child‟s
therapy and has failed to make any effort with regard to the child‟s physical health, either
before or after the Appellees began caring for the child. Jamie‟s school records also
indicate that Appellees are involved with his education and that he is succeeding in school
as well.
Finally, from the totality of the circumstances, it appears that a change in caretaker
and a change in physical environment would likely have a negative effect on Jamie at this
34
stage. While living with Appellees, Jamie has received regular medical care and has
enjoyed stability, both of which have resulted in an improvement in his behavior and other
areas of cognitive development. To remove him at this point and place him in what is still
an unstable environment with Mother would likely undo these positive changes.
Applying the foregoing statutory factors, and for the stated reasons, it is clear that
Mother has not made a lasting change in her conduct or condition that would allow Jamie
to return to her care at an early date. She has not supported Jamie financially and still
remains unemployed. She has recently been arrested for domestic violence. While this
Court does not doubt Mother‟s love for Jamie, the record does not support her assertion
that she would be able to provide Jamie with the emotional, medical, and developmental
support that he requires at this stage in his young life. From the totality of the
circumstances, we conclude that clear and convincing evidence exists to support the trial
court‟s conclusion that termination of Mother‟s parental rights is in Jamie‟s best interest.
Conclusion
For the foregoing reasons, we affirm the juvenile court‟s order terminating Mother‟s
parental rights to Jamie on the grounds of abandonment by willful failure to support and
persistence of conditions. We affirm the juvenile court‟s order declining to terminate
Mother‟s parental rights to Jamie on the ground of abandonment by willful failure to visit.
We also affirm the juvenile court‟s order finding it in the best interest of Jamie to terminate
Mother‟s parental rights. This case is remanded to the juvenile court for such further
proceedings as may be necessary and are consistent with this Opinion. Costs of this appeal
are assessed against Appellant Mother. Because Mother is proceeding in forma pauperis in
this appeal, execution may issue for costs if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
35