In Re Josie G. ( 2022 )

09/15/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 21, 2022 Session
IN RE JOSIE G.
Appeal from the Juvenile Court for Hamilton County
No. 295990 Robert D. Philyaw, Judge
No. E2021-01516-COA-R3-PT
In this case involving termination of the mother’s parental rights to her child, the trial
court determined that two statutory grounds for termination had been proven by clear and
convincing evidence. The trial court further determined that clear and convincing
evidence demonstrated that termination of the mother’s parental rights was in the child’s
best interest.1 The mother has appealed. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.
Ardena Garth Hicks, Chattanooga, Tennessee, for the appellant, Rodreka G.
Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Senior
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
OPINION
I. Factual and Procedural Background
This case focuses on Josie G., the minor child (“the Child”) of Rodreka G.
(“Mother”) and William H. (“Father”). The Child was approximately two weeks of age
when the Tennessee Department of Children’s Services (“DCS”) filed a petition in the
1
The trial court terminated the father’s parental rights to the child in the same proceeding. Inasmuch as
the father has not appealed the termination of his parental rights, we will confine our analysis to those
facts relevant to the mother’s appeal.
Hamilton County Juvenile Court (“trial court”) on December 2, 2016, alleging that the
Child was dependent and neglected because Mother was “homeless, unstable, and ha[d]
untreated mental health issues.” In the dependency and neglect petition, DCS stated that
Mother had reported not knowing the identity of the Child’s father. At the time of the
initial DCS referral regarding the Child, Mother had been admitted to Erlanger Hospital
(“Erlanger”) in Chattanooga due to postpartum bleeding, and the Child was with her
although not under treatment. According to the petition, upon a referral, a child
protective services investigator interviewed Mother at Erlanger, and Mother reported to
the investigator that she had stayed with her father (the Child’s maternal grandfather) in
Nashville and given birth to the Child in Nashville “in an attempt to avoid [DCS]
becoming involved with her again.”
DCS further averred in the dependency and neglect petition:
The mother has a significant history with [DCS]. Specifically, her
rights to three other children have been involuntarily terminated by this
Honorable Court. The most recent termination of parental rights occurred
on September 8, 2016 regarding her other child, Jareuel [G.-B.]. The
mother’s rights were terminated due to substantial noncompliance with the
permanency plan, persistent conditions, and mental incompetence.
Prior to the current referral, [DCS] was unaware of the mother’s
whereabouts. She was last known to be homeless. At one point during her
pregnancy with the subject child, she was living in a car. In addition, she
has not been receiving mental health treatment or taking any medication for
her mental health issues.
The trial court entered an ex parte protective custody order on December 2, 2016,
awarding temporary legal custody of the Child to DCS. At that time, the Child was
placed in the care of a foster parent. In May 2017, with the assistance of Omni Visions
foster care resources coordinators, the Child was placed in the care of the foster parents
with whom she has remained throughout the pendency of the case except for an
unsuccessful one-month trial home placement with Father in 2019. In its protective
custody order, the trial court granted to Mother supervised visitation with the Child.
The trial court entered an order adjudicating the Child dependent and neglected on
May 1, 2017, nunc pro tunc to a hearing conducted on April 11, 2017. The court noted in
its order that Mother was awaiting adjudication on a criminal charge for allegedly
assaulting a charge nurse at Erlanger at the time of the Child’s removal into DCS
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custody. Pursuant to Tennessee Code Annotated § 37-1-102(b)(13) (2017),2 the court
adjudicated the Child dependent and neglected upon finding Mother to be “homeless,
unstable and [suffering from] untreated mental health issues.” Mother was again granted
supervised visitation.
At the time of the dependency and neglect adjudication, Father was still
unidentified to DCS or the trial court. According to the termination petition, the trial
court determined Father to be the biological father of the Child following paternity
testing ordered on July 5, 2017.
Prior to filing the petition for termination of parental rights, DCS developed five
permanency plans for Mother, spanning January 11, 2017, as the date the first was
developed, through April 14, 2020, as the date of the fifth plan’s development. Each
permanency plan had been ratified by the trial court and was presented by DCS as an
exhibit during trial. Mother’s responsibilities set forth in the first plan included
undergoing a mental health intake assessment and following all recommendations,
undergoing a parenting assessment, obtaining and maintaining safe and stable housing for
at least six months, actively participating in parenting classes, refraining from illegal
activities or associating with those known to participate in illegal activities, refraining
from exhibiting hostility toward service providers or DCS workers, adhering to a
visitation schedule, and paying child support as ordered. Mother’s responsibilities in the
subsequent permanency plans remained substantially similar. Upon allegations that
Mother’s visits with the Child had been inconsistent, requirements for Mother in the fifth
and final permanency plan added responsibilities of maintaining regular visitation with
the Child and developing a bonded relationship with the Child.
Father, who was residing with a paramour, W.D., was included in the permanency
plans beginning in January 2018 with the fourth plan. In an order entered on March 26,
2019, the trial court found both Father and Mother in substantial compliance with the
fourth permanency plan. Father was then granted unsupervised visitation in May 2019
and a trial home placement for the Child in Father’s home in August 2019. However,
upon subsequent investigation into bruising on the Child, discovered while she was in
daycare and allegedly inflicted by W.D., DCS removed the Child from Father’s care the
following month. Following a review hearing conducted in December 2019, the trial
court entered an order on March 3, 2020, determining Mother to be in only partial
compliance with the permanency plan upon finding that she had not been consistently
taking her prescribed medications.
2
In its adjudicatory order, the trial court stated that the Child was dependent and neglected pursuant to the
statutory definition provided at Tennessee Code Annotated § 37-1-102(b)(12). However, prior to the
dependency and neglect petition’s filing, the General Assembly had recodified this definition at § 37-1-
102(b)(13). See 2016 Tenn. Pub. Acts, Ch. 979, § 4 (S.B. 2121), eff. April 27, 2016.
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Throughout the pendency of this case, Mother’s mental health concerns were a
primary issue in terms of her ability to care for the Child, and she underwent two clinical
parenting assessments at DCS’s request, one performed by Dr. Bertin Glennon over the
course of three days in the fall of 2017 and one performed by Benjamin James Biller,
M.S, in September 2020. At trial, DCS presented both assessment reports as evidence,
and Mr. Biller testified.
In his report, Dr. Glennon agreed with diagnoses of Mother made during a 2014
clinical assessment, namely: “Bipolar I, Latest episode depressive with psychosis; Major
Depression with Psychotic Features; and Schizophrenia by history.” He noted that during
Mother’s 2014 assessment, she had been given an intelligence quotient (“IQ”) test and
had been evaluated as having a “very serious” intellectual disability. Dr. Glennon did not
repeat the IQ test. Dr. Glennon concluded that Mother had “cognitive problems” and that
although she suffered from “a mental illness” that “move[d] from depression, to mania
and back to depression,” she had expressed a desire not to utilize prescribed medications.
He opined that custody of the Child should not be awarded to Mother “unless and until
she [had] demonstrated at least a year of having a regimen of effective medication and
she [had] demonstrated that she [could] follow the regimen exactly.”
In his report, Mr. Biller noted that Mother fell asleep during the clinical interview
with him several times and had to be awakened to answer some questions while he had to
omit the answers to some questions as unresponsive. Mr. Biller characterized this
behavior as “odd,” particularly considering the purpose of the assessment, given that
parents in Mother’s situation would generally attempt to positively impress the assessor.
In his report, Mr. Biller summarized that Mother had not “demonstrate[d] the mental
ability to provide safe parenting for her children” and that her “emotional characteristics
[did] point to significant psychopathology that would impede her ability to parent her
children.” He stated that Mother “appear[ed] to have limited plans for changing these
patterns.”
DCS filed its petition to terminate the parental rights of both parents to the Child
on January 19, 2021. As relevant on appeal, DCS alleged statutory grounds against
Mother of persistence of the conditions leading to the Child’s removal from Mother’s
custody, pursuant to Tennessee Code Annotated § 36-1-113(g)(3), and mental
incompetence pursuant to Tennessee Code Annotated § 36-1-113(g)(8). DCS further
alleged that it was in the Child’s best interest for Mother’s parental rights to be
terminated. The trial court subsequently entered orders respectively appointing an
attorney to represent each parent and attorney John Allen Brooks as a guardian ad litem
(“GAL”) to represent the Child.
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On February 18, 2021, the GAL filed a motion to terminate visitation with both
parents. In support of his motion, the GAL stated that the Child had been meeting with a
psychologist for several months and that the “the main cause for this medical need [was]
the psychological damage the visitation with the child’s actual parents [was] causing.”
Attaching copies of Mr. Biller’s report, a preliminary version of Dr. Glennon’s report,
and a letter written by a clinical psychologist who had treated the Child, the GAL further
averred that visitation was causing the Child “to have highly negative emotional reactions
to contact with her natural parents and resulted in regressive behavior following contact
with her parents.” Following a hearing, the trial court entered an order on February 24,
2021, setting the termination trial and announcing an agreement that the GAL’s motion
would be set in front of the magistrate.3
The trial court conducted a bench trial spanning two days on July 14 and
September 16, 2021. Mother appeared before the court on both days of trial. Father
failed to appear the second day, and upon DCS’s request, the trial proceeded in his
absence. DCS initially called both parents as adverse witnesses. As relevant to Mother,
DCS also presented testimony during trial from Mr. Biller; Omni Visions foster care
resource coordinators, Ruthanne Higgins and Shatera Simmons; DCS investigator Seth
Shelton; the Child’s foster mother (“Foster Mother”); and Father’s paramour, W.D. DCS
also presented as an exhibit the deposition testimony of Alexis Nolan, who was the DCS
family services worker assigned to the case since June 2020.4 In addition to the
dependency and neglect and permanency plan records, DCS presented as evidence, inter
alia, the clinical parenting assessment of Mother completed by Mr. Biller in September
2020, a May 2010 trial court order terminating Mother’s parental rights to her two eldest
children, and a September 2016 trial court order terminating Mother’s parental rights to
her third child. Mother presented a photograph of the Child sleeping with her head
resting on Mother’s leg during a supervised visit. The GAL presented the November
2017 clinical parenting assessment of Mother conducted by Dr. Glennon.
In its final order, entered on November 18, 2021, the trial court stated that it had
heard proof regarding the Child’s “medical and developmental issues.” The court
particularly noted the testimony of Ms. Higgins with Omni Visions, who testified within
her capacity as the social worker for medically fragile children that from 2017 to 2018,
the Child had “required near constant oxygen, had acid reflux, and was developmentally
delayed.” Ms. Higgins also testified that by the time of trial, the Child had “receiv[ed]
multiple therapies” and was “doing much better.” However, Ms. Higgins reported that
3
Although the disposition of the GAL’s motion is not entirely clear from the record, it appears to have
been subsumed into the termination proceedings.
4
The trial court sustained a limited objection from Mother’s counsel regarding a small portion of Ms.
Nolan’s deposition, and the deposition was otherwise accepted as an exhibit without objection.
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the Child “required an abnormally high level of care and work” and that “at no time
during [Ms. Higgins’s] oversight of this case would she have recommended unsupervised
visits for [Mother].” The trial court credited Foster Mother’s testimony that the Child
required “numerous doctor and therapy appointments,” a “need for structure,” and “a
higher level of care than that of most children.” The court noted Foster Mother’s
testimony that the foster parents wished to adopt the Child.
The trial court determined that statutory grounds existed to terminate the parental
rights of both parents. Specifically as to Mother, the court found by clear and convincing
evidence that the conditions leading to removal of the Child from her custody had
persisted and that Mother was mentally incompetent to adequately provide care for the
Child. The court further found by clear and convincing evidence that termination of
Mother’s parental rights was in the Child’s best interest. Mother timely appealed.
II. Issues Presented
Mother presents two issues on appeal, which we have restated slightly as follows:
1. Whether the trial court erred by finding clear and convincing
evidence supporting the statutory grounds of persistence of the
conditions leading to the Child’s removal from Mother’s custody
and Mother’s mental incompetence to provide adequate care for the
Child.
2. Whether the trial court erred by finding clear and convincing
evidence that it was in the Child’s best interest to terminate Mother’s
parental rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d
507, 523-24 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law,
however, are reviewed de novo with no presumption of correctness. See In re Carrington
H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal
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and shall not be disturbed absent clear and convincing evidence to the contrary. See
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:
The parental rights at stake are “far more precious than any property right.”
Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of
parental rights has the legal effect of reducing the parent to the role of a
complete stranger and of [“]severing forever all legal rights and obligations
of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1);
see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
U.S. at 754; see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C.,
452 U.S. 18, 27 (1981) (discussing the due process right of parents to
fundamentally fair procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).
***
-7-
In light of the heightened burden of proof in termination proceedings,
however, the reviewing court must make its own determination as to
whether the facts, either as found by the trial court or as supported by a
preponderance of the evidence, amount to clear and convincing evidence of
the elements necessary to terminate parental rights. In re Bernard T., 319
S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
IV. Grounds for Termination of Mother’s Parental Rights
Tennessee Code Annotated § 36-1-113 (2021) lists the statutory requirements for
termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4. . . .
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
The trial court determined that the evidence clearly and convincingly supported a finding
of two statutory grounds to terminate Mother’s parental rights: (1) persistence of the
conditions leading to the Child’s removal from Mother’s custody and (2) Mother’s
mental incompetence to adequately provide care for the Child. We will address each
statutory ground in turn.
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A. Persistence of Conditions Leading to the Child’s Removal
The trial court found clear and convincing evidence of the statutory ground of
persistence of the conditions leading to removal of the Child from Mother’s custody.
Regarding this statutory ground, Tennessee Code Annotated § 36-1-113(g)(3) (2021)
provides:
(3)(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a
court order entered at any stage of proceedings in which a petition
has been filed in the juvenile court alleging that a child is a
dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent or
guardian, or other conditions exist that, in all reasonable
probability, would cause the child to be subjected to further
abuse or neglect, preventing the child’s safe return to the care
of the parent or guardian;
(ii) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely
returned to the parent or guardian in the near future; and
(iii) 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;
(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard[.]
In its final judgment, the trial court stated the following specific findings regarding
this statutory ground:
Pursuant to Tenn. Code Ann. § 36-1-113(g)(3), the Court finds that
[DCS] has proven by clear and convincing evidence the statutory elements
of persistent conditions, as to [Mother].
[Mother’s] issues have remained constant in the last five (5) years of
this custodial episode. [Mother] has been generally unstable and has had
mental health issues, which she failed to address with medication. She still
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has mental health diagnoses which make it hard for her to parent a child,
especially a child with the kind of extensive needs as this one. More
recently, Mr. Biller testified of his serious concerns regarding [Mother’s]
ability to parent the child, which was the reason the child was taken into
custody in the first place and those concerns persist today. It does not
appear there is a likelihood that these conditions will be remedied any time
soon. [Mother] is in no position to care for this child and continuing the
parent child relationship greatly diminishes the child’s chances of
integration into a stable and loving home.
(Paragraph numbering omitted.)
Upon careful review, we determine that a preponderance of the evidence supports
the trial court’s findings as to this statutory ground. We note that as the trial began, the
Child had been in protective custody for far longer than the statutory six-month
minimum. Following the filing of a petition alleging dependency and neglect, the Child
was removed from Mother’s physical and legal custody by the trial court’s order entered
on December 2, 2016, and placed in the custody of DCS. By the time the termination
trial began in July 2021, the Child, who had been two weeks of age when removed from
Mother’s custody, had been in DCS custody for approximately four and one-half years.
As alleged in the dependency and neglect petition and subsequently found in the
trial court’s May 2017 adjudicatory order, the reasons for the Child’s removal from
Mother’s custody were that Mother was “homeless, unstable and [suffering from]
untreated mental health issues.” On appeal, Mother states that she “attempted to
complete all the tasks in her [permanency] plans.” However, Mother does not deny that
her instability and mental health issues persisted at the time of trial. Instead, she focuses
her argument on an alleged lack of assistance from DCS in remedying her situation,
particularly during “the COVID-19 pandemic season.” As DCS points out, to some
extent Mother appears to be conflating the statutory ground of substantial noncompliance
with the reasonable requirements of a permanency plan, see Tenn. Code Ann. § 36-1-
113(g)(2), with the statutory ground of persistence of the conditions leading to a child’s
removal, see Tenn. Code Ann. § 36-1-113(g)(3). Mother asserts that because the reasons
for the Child’s removal from her custody involved mental health issues that she was
tasked with addressing in the permanency plans, “an analysis of persistence of conditions
. . . necessarily entails the reasonableness of and the mother’s compliance with the plan.”
However, DCS did not allege the ground of substantial noncompliance with a
permanency plan against Mother.
Concerning the focus of the statutory ground at issue, persistence of conditions,
this Court has recently explained:
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The persistence of conditions ground focuses “on the results of the parent’s
efforts at improvement rather than the mere fact that he or she had made
them.” [In re Audrey S., 182 S.W.3d,] 874 [(Tenn. Ct. App. 2005)]. The
goal is to avoid having a child in foster care for a time longer than
reasonable for the parent to demonstrate the ability to provide a safe and
caring environment for the child. In re Arteria H., 326 S.W.3d 167, 178
(Tenn. Ct. App. 2010), overruled on other grounds by In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). Thus, the question before the court is “the
likelihood that the child can be safely returned to the custody of the [parent],
not whether the child can safely remain in foster care.” In re K.A.H., No.
M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July
21, 2000).
In re Kaisona B., No. W2020-01308-COA-R3-PT, 2021 WL 4319624, at *6 (Tenn. Ct.
App. Sept. 23, 2021). “Under this [persistence of conditions] ground, a parent’s inability
to eliminate such conditions does not need to be willful.” In re Braden K., No. M2020-
00569-COA-R3-PT, 2020 WL 5823344, at *9 (Tenn. Ct. App. Sept. 30, 2020) (citing In
re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012)).
During trial, Mother testified that she had been meeting with a therapist through
the Mental Health Cooperative in Chattanooga once or twice a month, either virtually or
in person, until the therapist recently began maternity leave. She acknowledged that she
had voluntarily admitted herself into Parkridge Valley Hospital in Chattanooga in
October 2020 for mental health issues and that she had told the staff there that she had
not taken any mental health medications since June 2020. Although Mother confirmed
that she needed mental health medications, she stated that she was not taking any at the
time of trial. Mother further testified that she was waiting for someone who would come
into her home with appointments to prescribe her medication. Although Mother’s
testimony in this regard was somewhat vague, even crediting Mother with the efforts to
which she testified, such would not constitute a change in conditions that would make it
safe to return the Child to her care.
In analysis of this ground, the focus must be on the results of Mother’s efforts
rather than “the mere fact” that she made those efforts. See In re Kaisona B., 2021 WL
4319624, at *6. Dr. Glennon’s 2017 report, Mr. Biller’s 2020 report, and Mr. Biller’s
trial testimony all indicated that Mother continued to suffer from mental health concerns
that rendered her unable to safely assume the responsibility of providing care for the
Child and that she had not demonstrated that she would follow through on a treatment
regimen.
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An additional condition leading to the Child’s removal was the instability of
Mother’s housing situation. Although Mother testified that she had been residing in the
same apartment for two years at the time of trial and that her rent was paid, she also
acknowledged that her “lease [was] up” and that she had not yet found a new place to
live. Mother stated that she was “in the process of moving” but did not know to where.
As DCS points out, Mother’s housing situation was “uncertain” at the time of trial.
Mother argues that DCS failed to make “accommodations for [Mother] and her
mental health issues that would provide for the child[’s] safety if she were returned to
[Mother’s] home” and failed to provide Mother with support “during the COVID-19
pandemic season to make progress on what was required of her.” She particularly cites
the closing paragraph of Mr. Biller’s summary and recommendations in his report, in
which he stated:
Due to the age of the children, if they are returned to the home,
initial, intermittent unannounced visits would be beneficial to provide a
watch over the children to assure as much safety as possible.[5] This would
allow [Mother] to know that [DCS] is maintaining an interest in the
children. The monitoring could potentially be viewed as a source of
support and assistance by [Mother].
(Emphasis added.) Mr. Biller clearly prefaced his recommendation regarding support in
the home on whether a decision would be made to return the Child to Mother’s custody.
Immediately preceding this recommendation, however, Mr. Biller summarized his
concerns regarding Mother’s ability to parent as follows in pertinent part:
[Mother] is estimated to be functioning in the low range of intelligence as
based upon her interaction patterns and results of previous testing.
Intelligence scores in both rates of fluid and crystallized intelligence tend
to be within 3 to 5 points over the course of a decade. She does report
having some level of psychotic symptoms. She does report having some
level of depression and anxiety. She does not demonstrate the mental
ability to provide safe parenting for her children. Her emotional
characteristics do point to significant psychopathology that would impede
her ability to parent her children.
The concerns expressed by DCS in regards to [Mother’s] potential
for responsible parenting are primarily related to mental stability, stability
5
At the time of Mr. Biller’s assessment report, Mother retained parental rights solely to the Child.
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of housing, and stability of income. After having reviewed the information
and questioning [Mother] in regards to these areas she appears to have
limited plans for changing these patterns.
(Emphasis added.) In his report, and subsequently in his testimony, Mr. Biller essentially
opined that Mother’s mental health concerns persisted at the time of her evaluation and
that she was not making any significant progress toward improvement.
Likewise, in his psychological evaluation and parental assessment conducted four
years prior to trial, Dr. Glennon opined that medication for Mother’s mental health
diagnoses, “if it works effectively cannot be counted on because of her unwillingness to
be reliable with the medications.” Dr. Glennon found at that time that “[c]ustody should
not be turned over to [Mother] unless and until she has demonstrated at least a year of
having a regimen of effective medication and she has demonstrated that she can follow
the regimen exactly.” Dr. Glennon also noted that Mother “show[ed] cognitive
problems,” and did not “demonstrate making good choices,” stating further that “[t]his
may be because of her limited ability to learn and relate what she knows to a situation
that will demand action so that she can take care of her child.”
According to Mr. Biller’s report and testimony, these conditions persisted at the
time of trial. The evidence preponderated in favor of the trial court’s finding by clear and
convincing evidence that “[i]t does not appear there is a likelihood that these conditions
will be remedied any time soon” to place Mother in a position to safely care for the Child.
See In re B.S.G., No. E2006-02314-COA-R3-PT, 2007 WL 1514958, at *7 (Tenn. Ct.
App. May 24, 2007) (“A parent’s mental incapacity can provide a sufficient factual
predicate for a finding that persistent unremedied conditions exist which prevent the safe
return of the child or children to that parent’s care.”).
Moreover, contrary to Mother’s argument, whether DCS made reasonable efforts
to assist her in regaining custody of the Child and learning to care for the Child in her
home is not a factor to be considered when analyzing this statutory ground. See In re
Steven W., No. M2018-00154-COA-R3-PT, 2018 WL 6264107, at *22 (Tenn. Ct. App.
Nov. 28, 2018) (“[T]he termination statute regarding persistence of the conditions leading
to the Children’s removal . . . contains no requirement that DCS expend reasonable
efforts to assist a parent in remedying such conditions.” (citing Tenn. Code Ann. § 36-1-
113(g)(3))). As our Supreme Court has held, “the extent of DCS’s efforts to reunify the
family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is
not a precondition to termination of the parental rights of the respondent parent.” In re
Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). We will therefore confine our
consideration of the efforts made by DCS to assist Mother to the best interest analysis.
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The evidence also supported a determination that continuation of the parent-child
relationship would greatly diminish the Child’s chances of integration into a safe, stable,
and permanent home. As the trial court found, the evidence demonstrated that the Child
had “extensive needs,” that those needs had been met by her foster parents for more than
four years at the time of trial, and that the foster parents had expressed a desire to adopt
the Child. See, e.g., In re Kaisona B., 2021 WL 4319624, at *7-8 (determining that when
the twin children had been “placed in their current foster home directly from the
hospital,” the mother had been unable to remedy the problems leading to removal for
nearly two years, and the foster parents wished to adopt the children, “[c]learly, the
continuation of Mother’s relationship with the Children greatly diminishe[d] their
chances of early integration into a permanent home.”). We conclude that the trial court
properly terminated Mother’s parental rights based on clear and convincing evidence of
this statutory ground.
B. Mental Incompetence to Adequately Care for the Child
Mother also contends that the trial court erred by terminating her parental rights on
the statutory ground of mental incompetence to adequately provide care for the Child.
Tennessee Code Annotated § 36-1-113(g)(8) (2021) provides regarding this ground for
termination:
(8)(A) The chancery and circuit courts shall have jurisdiction in an adoption
proceeding, and the chancery, circuit, and juvenile courts shall have
jurisdiction in a separate, independent proceeding conducted prior to
an adoption proceeding to determine if the parent or guardian is
mentally incompetent to provide for the further care and supervision
of the child, and to terminate that parent’s or guardian’s rights to the
child;
(B) The court may terminate the parental or guardianship rights of that
person if it determines on the basis of clear and convincing evidence
that:
(i) The parent or guardian of the child is incompetent to
adequately provide for the further care and supervision of the
child because the parent’s or guardian’s mental condition is
presently so impaired and is so likely to remain so that it is
unlikely that the parent or guardian will be able to assume or
resume the care of and responsibility for the child in the near
future; and
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(ii) That termination of parental or guardian rights is in the best
interest of the child;
(C) In the circumstances described under subdivisions (8)(A) and (B), no
willfulness in the failure of the parent or guardian to establish the
parent’s or guardian’s ability to care for the child need be shown to
establish that the parental or guardianship rights should be
terminated[.]
The General Assembly’s exclusion of willfulness from this statutory ground
“serves to protect children from harm caused by a parent who is incapable of safely
caring for them.” See In re D.A.P., No. E2007-02567-COA-R3-PT, 2008 WL 2687569,
at *5 (Tenn. Ct. App. July 9, 2008). If willfulness were required in order to terminate
parental rights for mental incompetence, “an obvious result . . . is to condemn a child,
whose parents are unfit to properly care for the child because of mental illness, to a life in
serial foster homes without any possibility of a stable, permanent home.” See State,
Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990).
This Court has rejected the argument that the ground of mental incompetence is
reserved only for parents who have “a condition for which ‘no amount of intervention can
assist.’” See In re S.M.R., No. M2008-01221-COA-R3-PT, 2008 WL 4949236, at *6
(Tenn. Ct. App. Nov. 18, 2008). This Court has instead affirmed the termination of
parental rights when parents have suffered from unalleviated mental disorders such as
bipolar disorder, adjustment disorder with anxiety and depressed mood, dependent
personality disorder, and schizophrenia disorder. See e.g., Smith, 785 S.W.2d at 337-39(affirming the termination of parental rights of a parent diagnosed with schizophrenic
disorder on the basis of mental incompetence although the acts of the mentally disabled
parent were not willful); In re S.M.R., 2008 WL 4949236, at *6 (affirming termination of
parental rights on the statutory ground of mental incompetence when the parent was
diagnosed with bipolar disorder and personality disorder, not otherwise specified); Dep’t
of Children’s Servs. v. M.R.N., No. M2006-01705-COA-R3-PT, 2007 WL 120038, at *10
(Tenn. Ct. App. Jan. 17, 2007) (affirming termination of parental rights on the statutory
ground of mental incompetence based on a diagnosis of adjustment disorder with anxiety
and depressed mood as well as dependent personality disorder). The parent’s mental
condition, however, must impair the parent to an extent that he or she cannot adequately
provide for the care and supervision of the child. See Tenn. Code Ann. § 36-1-
113(g)(8)(B)(i).
In its final judgment, the trial court stated the following specific findings of fact
regarding this statutory ground:
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Pursuant to Tenn. Code Ann. []§ 36-1-113(g)(8)(B), the Court finds
that [DCS] has proven by clear and convincing evidence the statutory
elements of Mental Incompetence as to [Mother].
Testimony was provided by forensic psychological examiner,
Benjamin Biller, as well as the prior report from Dr. Glennon, which was
entered as an exhibit without objection.
Considering all the evidence, the Court finds that [Mother] is
incompetent to adequately care for the subject child because of her mental
health issues, which are not likely to be remedied any time in the near
future. These diagnoses have been in place for a number of years and still
persist today. [Mother] was found to be incompetent in 2016, and that
order was entered as an exhibit, as [were] Dr. Glennon’s findings from
2017. Mr. Biller testified of his assessment and [Mother’s] inability to
understand the importance of the assessment and the fact she fell asleep
during the meeting. This child cannot safely be placed with [Mother].
(Paragraph numbering omitted.) We agree with the trial court.
In support of the finding that Mother’s mental health diagnoses had “been in place
for a number of years,” the trial court cited its own August 25, 2016 order, presented as a
trial exhibit during the instant action, terminating Mother’s parental rights to her third
child on the basis of Mother’s mental incompetence to adequately provide care for the
child as well as on the statutory grounds of persistence of the conditions leading to the
child’s removal and Mother’s substantial noncompliance with the reasonable
requirements of a permanency plan.6 DCS also presented as an exhibit the trial court’s
April 30, 2010 order terminating Mother’s parental rights to her two eldest children based
on the same three statutory grounds as in the 2016 order. In both of these prior
termination orders, the trial court cited the conclusions and testimony of Dr. Alice
Greaves, who had conducted separate parenting assessments of Mother, one prior to the
2010 trial, and the second in December 2014.
In the 2010 order, the trial court found as to this ground:
[Mother’s] mental condition is such that it prevents her from
providing safe and stable care and supervision for the Children.
Specifically, in the opinion of Dr. Greaves, [Mother] suffers from such
6
At the time of the 2016 termination trial, Mother was pregnant with the Child who is the focus of this
case.
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extreme mental illness that it is not possible for her to properly care for
herself, much less the Children.
In the 2016 order, the court, crediting Dr. Greaves’s testimony, found:
There is little chance that [Mother’s] condition can be improved to
such an extent that the child can be placed safely with her in the foreseeable
future because of [Mother’s] resistance to help, to advice, to treatment, to
counseling, and to medication.
Although these prior orders are not proof of Mother’s condition at the time of the instant
trial, we determine that the trial court properly considered them as evidence
demonstrating the number of years that Mother had been suffering from mental illness
without making significant progress toward becoming capable of providing adequate care
for a child. See State v. CBH, No. E2003-03000-COA-R3-PT, 2004 WL 1698209, at *2
(Tenn. Ct. App. July 29, 2004) (noting in a termination proceeding involving statutory
grounds of, inter alia, mental incompetence and persistence of conditions that “the
history of past behavior is relevant to the issue of future behavior.”).
During the pendency of the instant action, Dr. Glennon completed his assessment
in the fall of 2017. In his report, presented as an exhibit during trial, Dr. Glennon noted
that he had reviewed Dr. Greaves’s assessments of Mother and had chosen to use
different instruments whenever possible to either “cast doubts” or “support” the previous
diagnoses, stating that “[i]f similar findings [came] from these new instruments, the
previous instruments and their conclusions would be supported.” Dr. Glennon ultimately
came to the same conclusions as Dr. Greaves. He did not repeat the IQ test performed by
Dr. Greaves, noting that “[s]ince intellectual disability has a very small chance of
changing, significantly,” Mother’s “diagnosis would still be Significant Intellectual
disability” as found by Dr. Greaves. Upon the results of his administered instruments,
Dr. Glennon agreed with Dr. Greaves’s diagnoses of Mother as suffering from “Bipolar I,
Latest episode depressive with psychosis; Major Depression with Psychotic features; and
Schizophrenia by history.” Dr. Glennon summarized in his report in pertinent part:
[Mother] has a mental illness. This mental illness moves from
depression, to mania and back to depression. In the times between mania
and depression she is likely feeling driven to find excitement to get out of
her depression. At times when she is in a better mood, she usually becomes
bored. From there the cycle starts all over. There are indications in the
record that she has been prescribed medication, but she reports that she
does not like these medications and tries not to use them. It seems to this
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clinician that the medication, if it works effectively cannot be counted on
because of her unwillingness to be reliable with the medications.
Custody should not be turned over to [Mother] unless and until she
has demonstrated at least a year of having a regimen of effective
medication and she has demonstrated that she can follow the regimen
exactly.
[Mother] shows cognitive problems, while she seems to be aware of
what is happening to and around her, she does not demonstrate making
good choices. This may be because of her limited ability to learn and relate
what she knows to a situation that will demand action so that she can take
care of her child. The problem is that she will have to care for a one year
old child.
[Mother] has a history of diagnoses that are major mental illnesses.
Progress can only be made slowly and carefully. If [Mother] does begin to
make progress, supervisors must be careful not to expect that change will
be rapid.
At trial, Mr. Biller was accepted by the trial court as an expert in clinical
psychology. He testified that in completing his psychological evaluation and parenting
assessment of Mother in September 2020, he had reviewed Mother’s previous
evaluations, which had been sent to him by DCS, in addition to observing Mother’s
responses and behavior during her assessment in his office. He explained that although
Mother completed some testing in his office, she repeatedly fell asleep to the point that
she was snoring and unresponsive to questions. He stated that he would be concerned
about Mother’s ability to parent a young child in part based on “observed behavior of not
taking the issue of parenting seriously just because she fell asleep during the interview.”
Mr. Biller noted that in twenty years of assessing parents, Mother was the first parent he
had observed falling asleep during an assessment. Mr. Biller further explained: “[I]f
she’s not taking that seriously in this environment where she was told that this is, you
know, going to be utilized to establish custody, I would assume that that would transfer
poorly to a home environment as well.”
Mr. Biller reported that although Mother stated that she was taking no
medications, she appeared “seemingly sedated.” In response to a question posed by the
GAL concerning the effect on a schizophrenic individual of not taking prescribed
medication, Mr. Biller stated that the absence of psychotropic medication would “lead to
an increase in symptoms.” When questioned by Mother’s counsel regarding whether a
lack of Mother’s prescribed medication would be likely to make her sleepy, Mr. Biller
- 18 -
opined that it would not. As noted in a previous section of this Opinion, Mr. Biller
concluded in his report and reiterated in his testimony that Mother’s “emotional
characteristics do point to significant psychopathology that would impede her ability to
parent her children.”
Mother presented no countervailing expert proof regarding her mental status.
Apart from reference to the statute, Mother’s argument on appeal regarding this statutory
ground consists of two sentences. She asserts that because “[t]he record lacks any
evidence that [DCS] made accommodations for the mother regarding her mental health
issues,” “the evidence preponderates against a clear and convincing finding that the
mother was not able to deal with her mental health treatment.” Mother cites to no
authority in support of this assertion. In response, DCS notes efforts made, including
DCS’s provision of in-home parenting education services through Omni Visions and
referrals for mental health assessment and treatment.
However, DCS also correctly points out that the elements of this statutory ground
do not require a finding that DCS made reasonable efforts to assist Mother in making
progress in her mental health status such that she could adequately provide care for the
Child. See In re David J.B., No. M2010-00236-COA-R3-PT, 2010 WL 2889265, at *7
(Tenn. Ct. App. July 23, 2010) (“[T]he burden is on DCS to demonstrate two essential
facts: (1) that Mother is presently unable to care for the subject children and (2) that
Mother is unlikely to be able to care for the children in the near future.” (citing Tenn.
Code Ann. § 36-1-113(g)(8))). We emphasize that “the extent of DCS’s efforts to reunify
the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts
is not a precondition to termination of the parental rights of the respondent parent.” In re
Kaliyah S., 455 S.W.3d at 555.
Following a thorough review of the record, we conclude that the evidence does not
preponderate against the trial court’s finding by clear and convincing evidence that
Mother was mentally incompetent to adequately provide for the care and supervision of
the Child. Mother’s mental condition is presently and is likely to remain so impaired that
it is unlikely that Mother would be able to assume care of and responsibility for the Child
in the near future. Therefore, we affirm the termination of Mother’s parental rights based
on the statutory ground of mental incompetence.
V. Best Interest of the Child
When a parent has been found to be unfit by establishment of at least one statutory
ground for termination of parental rights, as here, the interests of parent and child
diverge, and the focus shifts to what is in the child’s best interest. In re Audrey S., 182
S.W.3d 838, 877 (Tenn. Ct. App. 2005); see also In re Carrington H., 483 S.W.3d at 523
- 19 -
(“The best interests analysis is separate from and subsequent to the determination that
there is clear and convincing evidence of grounds for termination.” (quoting In re Angela
E., 303 S.W.3d 240, 254 (Tenn. 2010))). Tennessee Code Annotated § 36-1-113(i)
provides a list of factors the trial court is to consider when determining if termination of
parental rights is in a child’s best interest. This list is not exhaustive, and the statute does
not require the court to find the existence of every factor before concluding that
termination is in a child’s best interest. See In re Carrington H., 483 S.W.3d at 523; In re
Audrey S., 182 S.W.3d at 878 (“The relevancy and weight to be given each factor
depends on the unique facts of each case.”). Furthermore, the best interest of a child
must be determined from the child’s perspective and not the parent’s. White v. Moody,
171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) in effect
when the petition was filed in the instant action listed the following factors for
consideration:7
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
7
Effective April 22, 2021, the General Assembly has amended Tennessee Code Annotated § 36-1-113(i)
by deleting the previous subsection in its entirety and substituting a new subsection providing, inter alia,
twenty factors to be considered in determining a child’s best interest in a case involving termination of
parental rights. See 2021 Tenn. Pub. Acts, Ch. 190 § 1 (S.B. 205). However, because the termination
petition in this case was filed prior to the effective date of the amendment, the statutory best interest
factors provided in the prior version of the statute are applicable here. See, e.g., In re Braxton M., 531
S.W.3d 708, 732 (Tenn. Ct. App. 2017).
- 20 -
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the
home, or whether there is such use of alcohol, controlled substances
or controlled substance analogues as may render the parent or
guardian consistently unable to care for 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.
As our Supreme Court has explained regarding the best interest analysis:
“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d [240,] 254 [(Tenn. 2010)].
When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
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remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending 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). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
more weight—even outcome determinative weight—to a particular
statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In the instant action, the trial court concluded that the statutory factors weighed
against maintaining Mother’s parental rights to the Child, finding as follows in pertinent
part:
The Court finds, pursuant to Tenn. Code Ann. § 36-1-113(i), that it
is in the best interest of the child for termination to be granted as to
[Mother], as she has failed to address the issues which would make it safe
for the child to return to the home despite help from Omni Visions and
[DCS]. [Mother] did not exercise regular visitation with the child and there
is no meaningful relationship between her and the child.
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***
Further, termination is in the child’s best interest pursuant to Tenn.
Code Ann. § 36-1-113(i), because a change in caregivers would have a
seriously detrimental effect on the child. She has been with the [foster
parents] for over four (4) years. This family is meeting all of her medical,
therapeutic, and emotional needs. They are committed to the child and
want to adopt. There was plenty of proof that the child wants stability and
wants to be with the [foster parents].
(Paragraph numbering omitted.) Upon careful review, we agree with the trial court’s
determination that termination of Mother’s parental rights was in the Child’s best interest.
The trial court’s findings within its best interest analysis indicate that it expressly
weighed factors one through five against maintaining Mother’s parental rights to the
Child. While conflating the best interest factors somewhat, Mother contends overall that
the trial court erred in its analysis because (1) no evidence indicated that Mother “ever
caused any physical harm” to the Child, (2) Mother “did have some relationship” with the
Child, (3) no evidence indicated that DCS “made accommodations for [the] COVID-19
pandemic and its impact” on Mother, and (4) the pandemic had “an impact on the ability
of [Mother] to make progress on her responsibilities.”
In relation to factors one, two, and six, Mother asserts that DCS presented no
proof that she had ever caused any physical harm to the Child. This lack of evidence
regarding abuse is relevant to factor six, which we will address more fully below.
However, as DCS points out, under the facts of this case, a lack of physical abuse of the
Child on Mother’s part has almost no relevance to factors one and two. We have
determined in a previous section of this Opinion that the conditions leading to the
removal of the Child from Mother’s custody persisted at the time of trial and did not
show promise of remedy in the near future. Mother did not make sufficient progress in
her mental health treatment to effect a lasting adjustment that would make it safe and in
the Child’s best interest to be in Mother’s home. Therefore, the evidence does not
preponderate against the trial court’s finding regarding factor one.
Considering our determination as to factor one, factor two could only weigh in
Mother’s favor if DCS had failed to make reasonable efforts to assist her in making a
lasting adjustment. See In re Kaliyah S., 455 S.W.3d at 555. Although Mother does not
raise this argument per se in relation to best interest, she does assert, as she has
throughout this appeal in her arguments regarding the statutory grounds, that DCS failed
to make accommodations for Mother during the COVID-19 pandemic. In its final order,
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the trial court found that Mother had “failed to address the issues which would make it
safe for the child to return to the home despite help from Omni Visions and [DCS]”
(emphasis added).
During the pendency of the case, DCS developed five permanency plans with
Mother. The trial court expressly found in permanency hearing orders, entered
respectively in January 2018 and May 2020, that DCS had made reasonable efforts to
assist the parents by providing referrals for mental health assessment, counseling, and
case management; clinical parenting assessment; and housing, as well as by providing
basic and specialized parenting instruction and some assistance with transportation. At
trial, Mother acknowledged that she had received in-home parenting instruction in 2017.
She had also undergone mental health and parenting assessments with Dr. Glennon and
Mr. Biller and had participated in intermittent mental health treatment with the Mental
Health Cooperative.
Through Omni Visions, Mother was provided with supervision for visits with the
Child throughout the pendency of the Child’s time in protective custody. Mother’s in-
person visits were initially supervised by Ms. Higgins from June 2017 through December
2018 and then by Ms. Simmons in 2019 and the early months of 2020. At the outset of
the pandemic in the spring of 2020, Mother was provided with opportunities for virtual
visits with the Child, which were supervised initially by Foster Mother and then by Ms.
Nolan. According to Ms. Nolan’s testimony, Mother missed a scheduled in-person visit
in October 2020 when Mother was at Parkridge Valley Hospital, and due to the
pandemic, visits were virtual again until May 2021. We determine that the evidence
preponderated in favor of the trial court’s finding that DCS and Omni Visions provided
assistance to Mother, and we further determine that this assistance constituted reasonable
efforts to assist Mother in reunifying with the Child. However, given that Mother did not
make sufficient adjustments to render it safe to return the Child to her custody, factor two
weighs against maintaining Mother’s parental rights.
Concerning factors three (Mother’s visitation with the Child) and four (whether a
meaningful bond had been established), the trial court found that Mother had failed to
“exercise regular visitation” and that “no meaningful relationship” existed between her
and the Child. On appeal, Mother does not address the trial court’s finding regarding the
inconsistency of her visits with the Child except to assert that DCS did not provide
accommodations for the pandemic’s “impact on [Mother] as a parent.” As noted above,
the record indicates that DCS, through its relationship with Omni Visions, did provide
virtual visits during the height of the pandemic and resumed scheduling in-person visits
prior to trial.
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However, the record also indicates that Mother’s attendance at visits was
inconsistent. Ms. Nolan testified and Mother acknowledged that Mother had missed
twelve visits with the Child between October 2020 and the beginning of trial in July
2021. According to Ms. Nolan, Mother participated in only five visits during that
timeframe. As to visitation in the earlier years of the Child’s time in protective custody,
Ms. Higgins testified that between June 2017 and December 2018, Mother was
inconsistent in attending visits and that when she did attend, “[s]he was rarely on time
and did not stay the full amount of time that she was allotted.” Ms. Simmons, who
supervised visitation in 2019 and early 2020, testified that Mother was inconsistent in her
attendance at visits during that timeframe as well.
In support of her assertion that Mother had “some relationship” with the Child,
Mother relies in part on a photographic exhibit portraying the Child asleep with her head
resting on Mother’s leg during a visit. In the trial court’s findings of fact in its final
order, the court particularly referenced this photograph, stating:
The most compelling evidence that there is any kind of relationship
between [Mother] and this child is seen in Exhibit #8, which shows [the
Child] asleep on [Mother’s] leg during a supervised visit. In this
photograph, the child appears to be either completely comfortable or
completely worn out. Otherwise, the testimony was that the child screamed
and cried during her visits with [Mother] and gave no evidence of a
meaningful relationship with [Mother]. While the first three (3) weeks of
the child’s life are not chronicled, there was testimony that since December
2016, [Mother] has not changed a diaper or even given the child a bottle.
The Court finds that there is no meaningful relationship.
As the trial court noted, testimony throughout the trial indicated that visits
between Mother and the Child were consistently problematic. Ms. Higgins testified that
in the beginning, Mother’s visits were scheduled for two hours twice a month. She
described those visits as follows:
It was not a good interaction. [The Child] would get very upset
when I would give her to her mother. When she would cry, the mom would
usually just hand her back to me. There was not any kind of appropriate
care. At one point, she tried to give [the Child] Cheetos. So it was not –
there was not good interaction whatsoever.
Ms. Higgins explained that at the time that Mother attempted to feed the Child Cheetos,
the Child was eating only specially prepared bottles of liquid with thickener added
because of her difficulty swallowing.
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According to Ms. Higgins, when the Child was turning a year old, Mother visited
and insisted that the Child could walk if she would stop being lazy. Mother let go of the
Child’s hands while the Child was standing, and the Child “went down to the ground,”
which was carpeted. Ms. Higgins stated: “[The Child], of course, was very upset, and so
I picked her up at that point and comforted her, and I ended the visit.” Ms. Higgins also
stated that she attempted “to explain to [Mother], both before that incident and right after,
that that’s just not where [the Child] was developmentally.” Ms. Higgins testified that
Mother became “very angry” with Ms. Higgins at that point and told her that the Child
“was lazy” and should be walking. Ms. Higgins reported that she did not remember
seeing Mother feed the Child or change a diaper during the visits she supervised.
Ms. Simmons opined that Mother did not understand the medical and
developmental needs of the Child. She described the visits during 2019 and early 2020 as
follows:
When I was initially assigned to the case, [the Child] would – I
mean, she basically would just fall out and cry. There wasn’t really a
connection or a bond. Over time, though, when [the Child] got older, when
she started turning three and getting a little bit more sociable, I think she
kind of somewhat understood. So it got a little better. There wasn’t a
bond, but there was something that – you know, they were together, and it
wasn’t screaming. It was able to be done.
Regarding the Child’s separate visits with Mother and Father during the last year
prior to trial, Ms. Nolan stated:
Every time [the Child] comes into the office, she’s always clinging
onto the foster mom. The foster mom actually has to stay in the DCS office
while they did their visitation. The first in-person visitation that I
supervised was in October [2020]. That was with [Father]. When [the
Child] came into the office, she screamed. She hollered loud. Her face was
pouring down in tears. She did not want to do a visit with [Father].
When she conducted her visit with her mom face to face, she did the
same thing. . . .
***
[Father], he did try to engage sometimes, but [the Child] still cries. She
still screams. [Mother], minimum engagement. The last visitation, [the
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Child] was sitting on the floor playing with the toy truck by herself.
[Mother] was at the table looking at her iPad.
Ms. Nolan further testified that during Mother’s last visit with the Child on May 12,
2021, while the Child was present, Mother began to ask Ms. Nolan personal questions
and to “make threats” toward Ms. Nolan and her own child. According to Ms. Nolan,
Mother was then asked to leave the DCS office, and she did not reappear for a visit with
the Child that was scheduled for five days later.
Other than the photographic exhibit of the Child sleeping, Mother has presented
no countervailing evidence regarding her relationship with the Child. We conclude that
the evidence preponderates in favor of the trial court’s determination that Mother had
failed to establish a meaningful relationship with the Child.
On appeal, Mother acknowledges that factor five, the effect a change of caretakers
and physical environment would likely have on the Child, weighs against maintaining her
parental rights. She posits that “counseling for the child could help mitigate the
negatives.” The trial court found that such a change would have a “seriously detrimental
effect” on the Child given that she had resided with the foster parents for more than four
years; the foster parents had met her “medical, therapeutic, and emotional needs”; and the
foster parents were “committed to” and wished to adopt the Child. Considering the
Child’s perspective, we are not persuaded by Mother’s postulate. We emphasize that
“[w]hen considering the statutory factors, ‘courts must remember that the child’s best
interests are viewed from the child’s, rather than the parent’s, perspective.’” In re
Johnathan M., 591 S.W.3d 546, 560 (Tenn. Ct. App. 2019) (quoting In re Gabriella D.,
531 S.W.3d at 681).
As to Mother, the trial court did not directly address factor six (whether Mother or
anyone residing with her had shown abuse or neglect toward the Child) or factor seven
(whether the physical environment of Mother’s home was healthy, safe, and free from
criminal activity or controlled substances). Mother correctly asserts that DCS presented
no evidence of her causing physical harm to the Child, and we note that the only proof
presented of abuse involved an incident that occurred during the Child’s trial home
placement with Father and W.D. Concerning Mother’s home, DCS also presented no
evidence that Mother’s apartment was unsafe. However, Mother did testify that her lease
was nearly expired and that she would be relocating. She offered no further information
regarding her future home.
Mother asserts regarding factor seven that the trial court “noted that COVID-19
did have an impact on the ability of the mother to make progress on her responsibilities.”
However, Mother’s citation to the record for this assertion is to a juvenile court
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magistrate’s March 29, 2021 “Findings and Recommendations,” in which the magistrate
stated that the court noted Mother’s counsel’s “suggestion” that the pandemic had
affected Mother’s progress on the permanency plan goals, rather than to any finding by
the court. Moreover, considering Mother’s undisputed testimony that she had resided in
an apartment for the two years prior to trial, it is unclear how Mother’s argument
regarding the pandemic would be relevant to factor seven.
This Court has previously held, in pertinent part, that “[i]n the absence of evidence
that tied” the parent to “abuse” or “an unsafe home,” “we must conclude that these
factors weigh against termination.” In re Braelyn S., No. E2020-00043-COA-R3-PT,
2020 WL 4200088, at *20 (Tenn. Ct. App. July 22, 2020); see also In re London B., No.
M2019-00714-COA-R3-PT, 2020 WL1867364, at *11-12 (Tenn. Ct. App. Apr. 14,
2020). We therefore determine that factor six weighs in favor of maintaining Mother’s
parental rights to the Child and that factor seven, given the uncertainty of Mother’s future
housing situation, weighs neither for nor against termination.
However, we further determine that factor eight, Mother’s mental status, is clearly
implicated by the trial court’s findings as to the statutory ground of Mother’s mental
incompetence to adequately care for the Child, as well as to the ground of persistence of
conditions. The trial court essentially found that Mother’s mental status would prevent
her from effectively providing safe and stable care and supervision for the Child. Mother
states in her appellate brief that “[t]he record lacks any evidence to weigh for or against
factor (8).” DCS argues to the contrary, noting the court’s findings regarding Mother’s
mental health. Inasmuch as both of the proven statutory grounds in this action involve
Mother’s mental status, we determine that factor eight weighs against maintaining
Mother’s parental rights to the Child.
Finally, as to factor nine, it is undisputed that Mother did not pay child support.
Although the trial court found that Father had failed to pay court-ordered child support,
the court made no such findings regarding Mother, and it is not clear that Mother was
ever ordered to pay child support. We note that it is well settled in Tennessee that every
parent is presumed to have knowledge of a parent’s duty to support his or her minor
children regardless of whether a court order to that effect is in place. See Tenn. Code
Ann. § 36-1-102(1)(H) (2021) (“Every parent who is eighteen (18) years of age or older
is presumed to have knowledge of a parent’s legal obligation to support such parent’s
child or children[.]”). Mother testified that she received $774 monthly in Supplemental
Security Income (“SSI”) disability benefits and that at the time of trial, she had been in a
training program for employment at Goodwill for two weeks. When questioned
regarding where she had previously been employed, Mother stated, “Well, I have a
business license so I can work out of my home,” adding that she can “do hair, sell food.”
As to any home business, Mother acknowledged, however, that “it’s not open right now.”
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When asked whether she had paid any child support, Mother responded: “No. They took
away child support. I was, and they took me off of child support.” Mother also testified
that she had bought “clothes, shoes, food” for the Child.
Although SSI benefits are not subject to legal process for payment of court-
ordered child support in Tennessee, see Tenn. Dep’t of Human Servs., ex rel. Young v.
Young, 802 S.W.2d 594, 599 (Tenn. 1990), this Court has considered a parent’s disability
benefits in the context of parental rights termination to find that a parent could have
provided some amount of support for a child, see, e.g., In re Kierani C., No. W2020-
00850-COA-R3-PT, No. 2021 WL 4057222, at *12 (Tenn. Ct. App. Sept. 3, 2021); In re
Miracle M., No. W2017-00068-COA-R3-PT, 2017 WL 3836020, at *6 (Tenn. Ct. App.
Aug. 30, 2017). However, without any further evidence presented in this case regarding
Mother’s ability to pay child support, we determine that factor nine weighs neither for
nor against termination of Mother’s parental rights to the Child.
In sum, we determine that factor six is the sole best interest factor weighing in
favor of maintaining Mother’s parental rights to the Child. However, any failure of the
trial court to take note of this factor, an absence of proof of abuse by Mother, constituted
harmless error. Based on our thorough review of the evidence in light of the statutory
factors, we conclude that the evidence presented does not preponderate against the trial
court’s determination by clear and convincing evidence that termination of Mother’s
parental rights was in the best interest of the Child. Having also determined that statutory
grounds for termination were established, we affirm the trial court’s termination of
Mother’s parental rights to the Child.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s
judgment terminating Mother’s parental rights to the Child and collection of costs
assessed below. Costs on appeal are assessed to the appellant, Rodreka G.
s/ Thomas R. Frierson, II____________
THOMAS R. FRIERSON, II, JUDGE
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