In Re Cayson C. ( 2022 )

11/28/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 3, 2022
IN RE CAYSON C., ET AL.
Appeal from the Juvenile Court for Grainger County
No. 2021-JV-39 Steven Lane Wolfenbarger, Judge
No. E2022-00448-COA-R3-PT
This appeal concerns the termination of a mother’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for
Grainger County (“the Juvenile Court”) seeking to terminate the parental rights of Pamela
C. (“Mother”) to her minor children Cayson S.-C. and Chaston C. (“the Children,”
collectively). After a hearing on the termination petition, the Juvenile Court entered an
order terminating Mother’s parental rights to the Children. Mother appeals. We vacate the
ground of failure to manifest an ability and willingness to assume custody because the
Juvenile Court failed to make specific findings regarding the second prong of that ground.
We find that all other grounds found by the Juvenile Court were proven by clear and
convincing evidence. We find further, as did the Juvenile Court, that termination of
Mother’s parental rights is in the Children’s best interest. We affirm as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed as Modified; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT
and KENNY W. ARMSTRONG, JJ., joined.
Whitney P. Trujillo, Strawberry Plains, Tennessee, for the appellant, Pamela C.
Jonathan Skrmetti, Attorney General and Reporter, and Amber L. Barker, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
Cayson S.-C. was born to Mother in June 2014; Chaston C. was born to Mother in
May 2016. Bryan S. (“Father”) is the Children’s father.1 In July 2019, DCS received a
referral that the Children were exposed to drugs. Upon an investigation by DCS, the
Children were found with their grandmother. In August 2019, Mother was located, and
she agreed to complete a non-custodial permanency plan to work toward achieving
sobriety. In November 2019, DCS filed a petition seeking to control Mother’s conduct and
alleging that the Children were dependent and neglected. The Juvenile Court ordered the
Children into DCS custody. The Juvenile Court subsequently entered an order adjudicating
the Children dependent and neglected. In December 2019, a permanency plan—the first
of four—was created for Mother. Under the first permanency plan, Mother’s
responsibilities included: complete a mental health assessment; complete an alcohol and
drug assessment; submit to random drug screens; maintain a safe and stable home; refrain
from incurring new legal charges; and maintain contact with DCS. The three succeeding
permanency plans retained the same essential responsibilities. In September 2020, the
Juvenile Court entered an order finding that a child born to Mother during the custodial
episode, a half-sibling of the Children but who is not a subject of this appeal, was a victim
of severe child abuse at Mother’s hands due to in utero exposure to methamphetamine and
THC. The record on appeal does not reflect that Mother ever appealed this finding of
severe child abuse.
On June 10, 2021, DCS filed a petition in the Juvenile Court seeking to terminate
Mother’s parental rights to the Children. DCS alleged the following grounds: (1)
abandonment by failure to visit; (2) abandonment by failure to support; (3) abandonment
by failure to provide a suitable home; (4) substantial noncompliance with the permanency
plans; (5) persistent conditions; (6) severe child abuse; and (7) failure to manifest an ability
and willingness to assume custody. DCS alleged further that termination of Mother’s
parental rights is in the Children’s best interest.
This case was tried on February 15, 2022. While neither parent appeared at the
hearing, counsel for Mother and Father were present. Before the witnesses testified, the
following exchange occurred concerning the whereabouts of the parents:
THE COURT: Okay. Is the Rule requested?
1
Father did not appeal the Juvenile Court’s order terminating his parental rights to the Children. We relate
facts about Father only to the extent they bear on Mother’s case.
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MR. LONG [counsel for Father]: No, Your Honor. But just on a
preliminary matter, I’d like to make a Motion for a Continuance. My client
is not here. Since it’s a Termination, I would just want my client here to
participate.
MS. BEIER [counsel for Mother]: I need to make the same Motion,
Your Honor.
THE COURT: Okay. Very well. So are the parents on notice
regarding today’s proceeding?
MS. LAWSON [counsel for DCS]: Yes, Your Honor. Both parents
have been served. They have -- actually [Mother] was here earlier. She was
arrested for three capiases issued for failure to appear issued out of Child
Support Court. She bonded out and left.
As far as [Father] goes, I don’t think he’s been here since 2020.
THE COURT: Okay. All right. So I am going to respectively
overrule the Motion. If I granted it, I don’t know that we would be in any
different posture at the next setting. And particularly if mother was here in
the building for other business today, arrested, made bond, and left the
premises, I cannot find good cause to grant a Continuance. Okay. All right.
You can call your first witness.
DCS elected not to proceed on two of the grounds it pled in its petition—
abandonment by failure to visit and failure to provide a suitable home. First to testify was
Kandi Kirk (“Kirk”), a DCS foster care case worker assigned to the Children’s case. The
Children were removed into DCS custody in November 2019. Over time, several different
case managers were assigned to the case. Kirk was assigned to the Children’s case in
December 2021. She reviewed the case record prior to trial. Asked why the Children were
removed into foster care, Kirk stated: “So the parents had a history of failing drug screens
for methamphetamine. And when the Department attempted to engage the parents, the
parents did not cooperate and the children were then bench ordered into custody.” From
July 2021, after DCS filed its petition, Mother paid $137.16 in child support for Chaston
and $537.16 for Cayson. Mother had been ordered to pay $55 per child per month in child
support. Kirk said that Mother paid no child support before DCS filed its termination
petition. Mother had signed the Criteria and Procedures for Termination of Parental Rights.
Next, Kirk testified to Mother’s degree of compliance with her permanency plans.
Mother completed a mental health assessment. Mother also completed rehab, but she had
not followed through on recommendations. On February 8, 2022, Kirk spoke with Mother
and asked for her address. Mother refused to provide her address. At that time, Kirk also
drug tested Mother, which saw Mother test positive for THC and methamphetamines. Kirk
testified that if the Juvenile Court did not terminate Mother’s parental rights at this time,
DCS would request that Mother undergo another alcohol and drug assessment in light of
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her testing positive for drugs a week before the hearing. As to where Mother lived, Kirk
said that Mother “reportedly” lived with her boyfriend, Wesley G. Wesley G. has a
“lengthy history with the Department” and, according to Kirk, would not able to complete
a background check for the Children to return to that home. However, Kirk did not know
the nature of Wesley G.’s history with DCS. Kirk stated further that Mother had not
provided her with proof of employment. Continuing her testimony, Kirk stated:
Q. Now Ms. Kirk, the Petition has also pled persistent conditions against
[Mother]. So you just stated -- I’m sorry -- how long have the children been
in foster care?
A. Since 2019, so for two years and three months.
Q. Okay. And the reasons for removal, can you refresh your memory on
that?
A. Yes. The parents were -- they had a history of failing drug screens for
methamphetamines. They were failing to cooperate with the Department and
they were bench ordered into custody.
Q. So what conditions still exist in [Mother’s] home that would prevent her
from regaining custody of the children at an early date?
A. She’s still continuing to fail drug screens for methamphetamines and she’s
not cooperating with the Department.
Q. And you don’t know where she lives; correct?
A. That is correct.
Q. And you don’t know if anyone lives with her?
A. That is correct.
Kirk said that Mother had not demonstrated a willingness to assume custody of the
Children; did not consistently pay child support or exhibit an ability to provide for the
Children financially; did not have a suitable home to her knowledge; did not show she
could provide stability and care for the Children; and had not addressed her drug addiction.
Kirk also said that, in her opinion, placing the Children in Mother’s legal or physical
custody, or under her financial responsibility, would pose a risk of substantial harm to the
physical or psychological welfare of the Children. In December 2020, Mother pled guilty
to simple possession of a Schedule VI substance, for which she was placed on probation.
In May 2021, she pled guilty to DUI first offense. Kirk testified that Mother went to jail
twice during the custodial episode. Kirk said that, in her opinion, adoption was in the
Children’s best interest of achieving permanency.
On cross-examination, Kirk acknowledged that Mother paid some child support
after DCS filed its termination petition. Kirk said Mother was not currently employed.
Mother had a suspended driver’s license. Kirk stated that Mother had been arrested the
morning of the hearing for nonpayment of child support. However, Mother was released.
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Kirk had no record of Mother completing intensive outpatient therapy. Kirk testified:
“[Mother] hasn’t done anything that we’ve asked of her as far as following through on any
of the recommendations on the Permanency Plan.” Kirk had spoken to Mother about
setting up parent-child visits, but Mother did not attend. Asked if Mother gave any reason
for her failure to attend, Kirk said: “The first reason, she said she didn’t have any gas
money. And the second time, she did not give me a reason.”
Next and last to testify was Garren R. (“Foster Father”), one of the Children’s foster
parents. The Children had been in Foster Father’s home since February of 2020. Foster
Father stated that he tried to maintain communication with Mother, including setting up
video calls. However, Mother’s participation was sporadic. Foster Father testified that
Mother’s contact with the Children, such that it occurred, was not meaningful or engaging.
Regarding his line of work, Foster Father is a home health nurse. When the Children first
arrived in Foster Father’s care, Cayson was underweight to the 20th percentile. Cayson
threw tantrums, as well. The Children were placed on a routine, and now have a stable
environment. When he entered Foster Father’s care, Cayson suffered from hearing loss.
He also has undergone a tonsillectomy and an adenoidectomy. The Children attend “play
therapy” twice a month. Mother once sent Foster Father’s spouse a text asking how therapy
was going. Regarding whether the Children displayed an attachment to Mother, Foster
Father said “the boys don’t talk about her unless they know for sure that a visit is
happening.” Chaston seemed a “little happy” to visit with Mother, whereas Cayson showed
no interest in her. The visits were “hit or miss.” Foster Father said: “We did it weekly and
from like February of 2021 to, I think you’re looking at June the 9th, I’ve got [Mother]
completing a total of five video calls.” The week before the hearing, Mother had a video
call with the Children for around fifteen minutes. Foster Father stated that he loves the
Children, and he and his spouse wish to adopt them.
Following trial but prior to the entry of the final judgment, Mother filed a “motion
to reconsider” in which she requested an opportunity to be present for a new trial. In her
motion, Mother asserted that she was at the courthouse on the morning of trial; that she
was arrested for nonpayment of child support; that it was determined her arrest was in error
and she was released; that she inquired about her court date and waited until the last name
on the docket came up; that nobody was left there; and she finally left. Mother did not file
an affidavit in support of her motion to reconsider. Mother’s motion was heard on April
5, 2022. The Juvenile Court denied the motion. In its order denying Mother’s motion, the
Juvenile Court stated: “Mother stated that she thought the hearing was over and left the
building. DCS objected to the Motion.” Applying Rule 310 of the Tennessee Rules of
Juvenile Procedure, the Juvenile Court found: “[A]n order shall be set aside based upon
fraud or mistake or newly discovered evidence. Mother was present the day of the
proceeding and left prior to the commencement of the hearing. The Court finds that no
mistake, fraud, or discovery of new evidence is present.”
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In April 2022, the Juvenile Court entered an order terminating Mother’s parental
rights to the Children. The Juvenile Court found, by clear and convincing evidence, that
five grounds for termination were proven against Mother: (1) abandonment by failure to
support; (2) substantial noncompliance with the permanency plans; (3) persistent
conditions; (4) severe child abuse; and (5) failure to manifest an ability and willingness to
assume custody. The Juvenile Court found further, also by clear and convincing evidence,
that termination of Mother’s parental rights is in the Children’s best interest. The Juvenile
Court found as follows, in part:
[Abandonment by Failure to Support]
The relevant lookback period in this case with respect to the ground
of abandonment by failure to support is the four-month period between
February 10, 2021, and June 9, 2021.
The Court specifically finds that neither parent paid any child support
during the relevant four-month period of time immediately preceding the
filing of the Petition to Terminate Parental Rights. [Mother was] ordered to
pay $55.00 per child per month by this Court on February 3, 2020. Moreover,
there is no indication in the record that either parent was disabled or
incapable of performing work during the relevant lookback period. [Mother]
signed the Criteria for Termination of Parental Rights on multiple
occasions….
***
[Substantial Noncompliance with the Permanency Plans]
It is important for courts to view a parent’s compliance realistically
and logically in light of the purpose for which step is included. In every plan,
there are certain core requirements that are more critical to facilitating
reunification of a family than others. Logically, these “core” steps are
designed to correct the conditions and problems that necessitated the child’s
removal in the first place. Merely counting the number or percentage of steps
completed by a parent does not meet the test of substantial noncompliance.
Each step must be viewed individually to determine its importance and how
it relates to the overall goals of the plan. If the most critical or core steps
remain uncompleted, then the underlying problems that necessitated removal
of the child have not been resolved and reunification is not a viable option.
Four permanency plans were created and ratified during this custodial
episode. The Court finds that the goals of the respective plans were
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reasonably related to remedying the conditions that led to the children’s
removal, and that DCS acted reasonably during all stages of this matter.
The parents were required to complete mental health assessments,
alcohol and drug assessments, have a legal source of income, obtain and
maintain safe and suitable housing, resolve all legal issues and refrain from
incurring new charges, submit to random drug screens, regularly visit the
child, and obtain a transportation plan.
While it appears that [Mother] completed a mental health assessment
and admitted herself into a rehabilitation program, the evidence shows that
she left her treatment program prior to completion, failed to enroll in an
intensive outpatient program, and will not disclose where she lives.
The Court would further note that Mother is believed to reside with
her paramour, Wesley [G.], who has an extensive history with DCS.
Mother’s last drug screen on February 8, 2022, indicated positive results for
methamphetamine. Mother has provided no proof of reliable transportation
and was arrested prior to this hearing for failure to pay child support.
Although Mother was released on bail earlier today, she failed to appear for
this trial.
***
For these reasons, the Court finds by clear and convincing evidence
that [Mother]… failed to substantially comply with the permanency plans
created for [her] by DCS, and that the steps developed in the plans were
reasonably related to remedying the reasons for the children’s removal.
***
[Persistent Conditions]
Looking back at the reasons that led to the children’s removal on
November 5, 2019, the Court cannot find any evidence of significant
improvement by [Mother]. Therefore, the conditions that existed at the time
of the children’s removal two years ago continue to persist today. Numerous
reasons for removal were cited in testimony: drug issues, inappropriate
housing, and criminal issues, to state a few.
[Mother] tested positive for methamphetamine on a drug screen
administered only a week prior to this hearing. She was arrested and released
on bail before this trial began. She refuses to disclose where she lives.
The Court finds by clear and convincing evidence that the conditions
that led to the children’s removal still persist; there is little likelihood that
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these conditions will be remedied at an early date so that the children could
safely return to the home; and that that continuation of the parent-child
relationship greatly diminishes the children’s chances of being placed into a
safe, stable, and permanent home.
***
[Severe Child Abuse]
On September 29, 2020, the Grainger County Juvenile Court
adjudicated the children’s half-sibling, Miya [G.], dependent and neglected
and held that [Mother] had severely abused the child due to her continued
use of methamphetamine during her pregnancy.
The Court finds that the adjudication was a final order that was not
appealed.
***
[Failure to Manifest an Ability and Willingness to Assume Custody]
The first prong of this ground provides that the petitioner must prove
that the parent has failed to “manifest an ability and willingness to personally
assume legal and physical custody or financial responsibility” of the child.
***
Accordingly, this Court’s analysis addresses whether the petitioner has
proven by clear and convincing evidence whether the parents have failed to
manifest either the ability or the willingness to assume legal and financial
responsibility for this child.
Neither parent paid child support commensurate with any requirement
of them under the Child Support Guidelines or any court order. Moreover,
the Court finds that the parents have provided no support other than [Father]
sending $10.00 to the children. During this custodial episode, the children
never received birthday gifts and received Christmas gifts for the first time
in December 2021.
Neither parent has provided any proof that they are ready to assume
physical custody of the children. [Mother] refused to provide an address to
her DCS case manager…. The Court further finds that both parents have
lengthy and ongoing criminal episodes. In fact, [Mother] was arrested on
this date prior to this hearing.
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For these reasons, the Court finds by clear and convincing evidence
that the grounds set forth in Tenn. Code Ann. § 36-1-113(g)(14) have been
met, that the parents failed to demonstrate that they are able to assume
physical and financial responsibility of the children, and that placing the
children in the legal or physical custody of either parent would pose a risk of
substantial risk [sic] of harm to the physical or psychological welfare of the
children.
***
[Best Interest]
(A) and (B) The Court finds that the children are in a loving pre-
adoptive home and have stability and continuity of placement. The children
had physical and emotional issues when they were removed into foster care.
The children attend play therapy twice per week, and their foster parents are
very supportive of their treatment. Their emotional wellness has improved
while in their foster home, and the Court finds that a change of caretaker and
physical environment would likely be detrimental to the emotional,
psychological, and medical conditions of these children.
(C) The parents have provided very little support and have failed to
demonstrate an ability to provide for the children in a meaningful way. Their
housing situation is unknown. In fact, [Mother] refused to provide her
address to her case worker.…
(D) and (E) The Court finds that the children and parents have no
significant attachment, and it is unlikely that such an attachment could be
fostered at this point.… [W]hile [Mother] has visited with the children, it is
sporadic in nature. Her last visit with the children was via video for
approximately fifteen minutes one week ago. Prior to that, [Mother] last
visited with the children the week after Christmas 2021.
(F) and (G) The Court does not consider these factors in its best
interest analysis, as there is no evidence of whether the children are fearful
of living in either of the parents’ homes. The Court would note that the
parents’ living conditions are unknown.
(H) The children are well bonded with their foster parents. It is
apparent that the foster parents love these children and have developed a
nurturing relationship and wish to adopt the children. The Court finds that
the children have created a healthy parental attachment to other persons in
the absence of the parents.
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(I) Although the Court cannot make a clear finding as to this factor, it
is noted that the children are well bonded with their foster parents and have
developed friendships with a child in their neighborhood.
(J) The parents have failed to make any lasting adjustments of their
circumstances, conduct, or conditions. [Mother] tested positive for
methamphetamine a week ago. Both parents continue to incur criminal
charges.
(K) and (L) The goals and requirements of the permanency plans were
reasonably related to remedying the reasons for removal. DCS exercised
reasonable efforts in attempting to assist the parents; however, [Mother] …
failed to take advantage of any resources or assistance provided by DCS.
(M) The Court does not consider this factor in its best interest analysis.
(N) The Court does not consider this factor in its best interest analysis.
(O), (P), and (Q) … [Mother] admitted to using methamphetamine
and smoking marijuana at the time of the children’s removal, and she
continues to use methamphetamine. The Court finds that neither parent has
ever provided safe and stable care for the children, and they have failed to
demonstrate an understanding of the basic and specific needs required for the
children to thrive, or an ability to maintain a home that meets those specific
needs.
(R) Again, the current living conditions of the parents are unknown.
(S) The parents have provided nothing other than token child support
for the children.
(T) The Court finds that mental and emotional fitness of the parents
would be detrimental to the children and would likely prevent the parents
from consistently and effective providing safe and stable care and
supervision of the children. Particularly as demonstrated by their ongoing
substance abuse and criminal activity.
For these reasons, the Court finds by clear and convincing evidence
that, based upon the considerations set forth in Tenn. Code Ann. § 36-1-
113(i), that it is in the best interest of the children for the parental rights of
[Mother] … to be terminated.
Mother timely appealed to this Court.
Discussion
We restate and consolidate Mother’s issues on appeal as follows: 1) whether the
Juvenile Court erred in denying Mother’s motion to reconsider; 2) whether Mother’s due
process rights were violated and Mother was deprived of an opportunity to adequately
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cross-examine the witness when the DCS case manager testified largely through case
records which were not entered into evidence; 3) whether the Juvenile Court erred in
finding grounds for termination; and 4) whether the Juvenile Court erred in finding that
termination of Mother’s parental rights is in the Children’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clauses of the federal and state constitutions.2 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388.
Termination of parental rights has the legal effect of reducing the parent to
the role of a complete stranger and of “severing forever all legal rights and
obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-
113(l)(1); see also Santosky, 455 U.S. at 759, 102 S.Ct. 1388 (recognizing
that a decision terminating parental rights is “final and irrevocable”). In light
of the interests and consequences at stake, parents are constitutionally
2
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
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entitled to “fundamentally fair procedures” in termination proceedings.
Santosky, 455 U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). “Clear and convincing evidence enables the fact-finder to
form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than not.
In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R.,
183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds3 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is separate
from and subsequent to the determination that there is clear and convincing
3
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
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evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
Although several factors relevant to the best interests analysis are statutorily
enumerated,4 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n. 15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at4
Tenn. Code Ann. § 36-1-113(i).
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246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97. The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion
of law, which appellate courts review de novo with no presumption of
correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). In conjunction with a best interest determination, clear and convincing
evidence supporting any single ground will justify a termination order. E.g., In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Mother does not challenge severe child
abuse, one of the five grounds found against her. Nevertheless, the Tennessee Supreme
Court has instructed “that in an appeal from an order terminating parental rights the Court
of Appeals must review the trial court’s findings as to each ground for termination and as
to whether termination is in the child’s best interests, regardless of whether the parent
challenges these findings on appeal.” In re Carrington H., 483 S.W.3d at 525-26 (footnote
and citation omitted). Therefore, we will review each of the grounds found against Mother.
Five grounds for termination are at issue. On June 10, 2021, when DCS filed its
termination petition, the statutory grounds at issue read as follows:
(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 nonexclusive, 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;
(2) There has been substantial noncompliance by the parent or guardian with
the statement of responsibilities in a permanency plan pursuant to title 37,
chapter 2, part 4;
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(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;
(4) The parent or guardian has been found to have committed severe child
abuse, as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against any child; [and]
***
(14) A parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or financial
responsibility of the child, and placing the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child[.]
Tenn. Code Ann. § 36-1-113(g) (West April 22, 2021 to June 30, 2021).
With regard to the abandonment ground at issue, the ground of abandonment by
failure to support was defined as follows:
(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, pleading, petition, or any amended petition to
terminate the parental rights of the parent or parents or the guardian or
-15-
guardians of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent or parents or the guardian or
guardians either have failed to visit or have failed to support or have failed
to make reasonable payments toward the support of the child;
***
(B) For purposes of this subdivision (1), “token support” means that the
support, under the circumstances of the individual case, is insignificant given
the parent’s means;
***
(D) For purposes of this subdivision (1), “failed to support” or “failed to
make reasonable payments toward such child’s support” means the failure,
for a period of four (4) consecutive months, to provide monetary support or
the failure to provide more than token payments toward the support of the
child. That the parent had only the means or ability to make small payments
is not a defense to failure to support if no payments were made during the
relevant four-month period;
***
(F) Abandonment 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;
***
(H) 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; [and]
(I) For purposes of this subdivision (1), it shall be a defense to abandonment
for failure to visit or failure to support that a parent or guardian’s failure to
visit or support was not willful. The parent or guardian shall bear the burden
of proof that the failure to visit or support was not willful. Such defense must
be established by a preponderance of evidence. The absence of willfulness
is an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of
Civil Procedure[.]
Tenn. Code Ann. § 36-1-102(1) (West March 6, 2020 to June 30, 2021).
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We first address whether the Juvenile Court erred in denying Mother’s motion to
reconsider. In denying Mother’s motion, the Juvenile Court applied Rule 310 of the
Tennessee Rules of Juvenile Procedure.5 Mother argues that the Juvenile Court erred in so
doing as the Tennessee Rules of Civil Procedure apply to parental rights termination cases.
See State ex rel. Turner v. Bryant, No. W2006-01463-COA-R3-JV, 2008 WL 2388630, at
*3 (Tenn. Ct. App. June 12, 2008), no appl. perm. appeal filed (“Still other proceedings,
such as the termination of parental rights and child custody proceedings, are governed by
the Tennessee Rules of Civil Procedure.”) (Footnote and citation omitted). Mother
contends that Tenn. R. Civ. P. 60.02 would have been the appropriate rule to apply in this
context.6 For its part, DCS concedes that the Juvenile Court erred in applying the
Tennessee Rules of Juvenile Procedure, but argues that the error was harmless in this
instance. DCS argues that, since Mother’s motion to reconsider was filed after the Juvenile
Court’s oral ruling but before the Juvenile Court entered its final judgment, it should be
treated as a Tenn. R. Civ. P. 59.04 motion to alter or amend. See Ferguson v. Brown, 291
S.W.3d 381, 387 (Tenn. Ct. App. 2008) (“Rule 59.04 allows a party to seek relief from a
judgment within thirty days after being entered; conversely, Rule 60.02 affords a party a
means to seek relief from a final, non-appealable judgment.”) (citation omitted). With
respect to Rule 59.04 motions to alter or amend, this Court has stated:
The purpose of a Rule 59.04 motion to alter or amend a judgment is
to provide the trial court with an opportunity to correct errors before the
judgment becomes final. Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn.
Ct. App. 1998) (overruled in part on other grounds by Harris v. Chern, 33
S.W.3d 741 (Tenn. 2000)). The motion should be granted when the
5
Tennessee Rule of Juvenile Procedure 310(b) provides:
(b) Relief from Judgments or Orders. An order of the court shall be set aside if it is determined that:
(1) It was obtained by fraud or mistake sufficient to satisfy the legal requirements for relief in any other
civil action;
(2) The court lacked jurisdiction over a necessary party or of the subject matter; or
(3) Newly discovered evidence so requires. The court must determine that, with regard to such newly
discovered evidence, the movant was without fault in failing to present such evidence at the original
proceeding, and that such evidence may have resulted in a different judgment at the original proceeding.
6
Tenn. R. Civ. P. 60.02 provides, as pertinent:
On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative
from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or
excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released
or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is
no longer equitable that a judgment should have prospective application; or (5) any other reason justifying
relief from the operation of the judgment.
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controlling law changes before the judgment becomes final; when previously
unavailable evidence becomes available; or to correct a clear error of law or
to prevent injustice. Id. A Rule 59 motion should not be used to raise or
present new, previously untried or unasserted theories or legal arguments.
Local Union 760 of Intern. Broth. of Elec. Workers v. City of Harriman, No.
E2000-00367-COA-R3[-]CV, 2000 WL 1801856, at *4 (Tenn. Ct. App. Dec.
8, 2000) perm. app. denied (Tenn. May 14, 2001), see Bradley, 984 S.W.2d
at 933 (holding: a Rule 59 motion should not be used to raise new legal
theories where motion for summary judgment is pending).
In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005).
Mother is correct in that the Juvenile Court erred in applying Rule 310 of the
Tennessee Rules of Juvenile Procedure to deny her motion to reconsider as the Tennessee
Rules of Juvenile Procedure do not govern parental rights termination cases. However, not
every error committed by a trial court necessarily constitutes reversible error. See Tenn.
R. App. P. 36(b) (“A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in prejudice
to the judicial process.”). Mother’s “motion to reconsider” relied on no legal authority.
To determine whether the Juvenile Court erred in its disposition of Mother’s motion,
we must characterize the motion according to its substance. As the Juvenile Court had not
entered its final judgment when Mother filed her motion, we agree with DCS that it should
be treated as a Tenn. R. Civ. P. 59.04 motion to alter or amend rather than a motion for
relief from judgment under Tenn. R. Civ. P. 60.02. We review a trial court’s ruling on a
Tenn. R. Civ. P. 59.04 motion to alter or amend a judgment using the abuse of discretion
standard. See Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn. Ct. App. 2003).7 The
Tennessee Supreme Court has explained that “[a] court abuses its discretion when it causes
an injustice to the party challenging the decision by (1) applying an incorrect legal standard,
(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence.” Fisher v. Hargett, 604 S.W.3d 381, 395 (Tenn.
2020) (internal quotation marks omitted) (quoting Harmon v. Hickman Cmty. Healthcare
Servs., Inc., 594 S.W.3d 297, 305-06 (Tenn. 2020)).
7
A trial court’s decision on whether to grant a motion for continuance, the underlying subject of Mother’s
motion, likewise is reviewed under the abuse of discretion standard. In re Braylee B., No. E2020-01408-
COA-R3-PT, 2021 WL 1977187, at *7 (Tenn. Ct. App. May 18, 2021), R. 11 perm. app. denied August 11,
2021.
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Mother argues that the Juvenile Court “may have ruled differently if the proper
standard had been used.” We are unpersuaded that the Juvenile Court’s outcome would
have been different under Tenn. R. Civ. P. 59.04, which we deem applicable, or Tenn. R.
Civ. P. 60.02, as advocated by Mother. Though it did not say so explicitly, the Juvenile
Court plainly did not credit Mother’s excuse for her non-attendance at the hearing. Mother
fails to explain how the Juvenile Court’s applying a different standard would have altered
its basic conclusion that her excuse was invalid. In addition, we note that Mother failed to
support her motion with an affidavit attesting to her version of events. Although the
Juvenile Court applied an incorrect legal standard, we find that this error was harmless as
it did not more probably than not affect the judgment or result in prejudice to the judicial
process. In addition, we find that the Juvenile Court’s decision neither was illogical,
unreasonable, nor based on a clearly erroneous assessment of the evidence. In sum, we
find no abuse of discretion in the Juvenile Court’s denial of Mother’s motion to reconsider.
We next address whether Mother’s due process rights were violated and Mother was
deprived of an opportunity to adequately cross-examine the witness when the DCS case
manager testified largely through case records which were not entered into evidence.
Mother states that Kirk, the DCS case worker who testified at trial and had only been on
the Children’s case for about six weeks, relied on her review of internal records for her
testimony. Mother says these records never were properly entered into evidence and she
never had a chance to object. Thus, Mother argues her due process rights were violated.
In support of her position, Mother cites to In re Amora S., No. E2021-00338-COA-R3-PT,
2021 WL 4704674, at *7 (Tenn. Ct. App. Oct. 8, 2021), no appl. perm. appeal filed, a case
in which a father appealing the termination of his parental rights challenged the trial court’s
consideration of certain exhibits which were “premarked” but never properly admitted into
evidence. DCS argued, as it does here, that the issue was waived for failure to timely
object. Id. We disagreed in In re Amora S., stating that “[b]ecause DCS counsel never
moved to admit the exhibits into evidence, Father was not given an opportunity to object
to their admission.” Id. We ultimately found the error was harmless because the trial
court’s reliance on the improperly-considered evidence was insignificant in view of the
other admissible evidence supporting its decision. Id. In response, DCS argues, in part,
that Mother waived her challenge to Kirk’s testimony because she failed to timely object
to it. DCS argues further that Kirk was not reading from un-admitted case recordings, but
rather from affidavits entered into evidence without objection as Collective Exhibit 1.
We find that In re Amora S. is distinguishable from the present case. At issue in In
re Amora S. were physical documents, certain exhibits “premarked” but never properly
admitted into evidence. Here, the evidence at issue is not exhibits but instead testimony.
Mother had an opportunity at trial to object to Kirk’s testimony for the reasons she
challenges it now, but Mother failed to do so. A failure to timely object can be
consequential. As this Court has explained:
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The contemporary objection rule is an elementary principle of trial
practice. Parties who desire to object to the admission of evidence must make
their objection in a timely manner and must state the specific basis for their
objection. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct. App.
1999). Parties cannot obtain relief on appeal from an alleged error they could
have prevented. Tenn. R. App. P. 36(a). Therefore, failing to make an
appropriate and timely objection to the admission of evidence in the trial
court prevents a litigant from challenging the admission of the evidence on
appeal. Welch v. Bd. of Prof’l Responsibility, 193 S.W.3d 457, 464 (Tenn.
2006); State ex rel. Smith v. Livingston Limestone Co., 547 S.W.2d 942, 944
(Tenn. 1977); Ottinger v. Stooksbury, 206 S.W.3d 73, 78 (Tenn. Ct. App.
2006).
Levine v. March, 266 S.W.3d 426, 440 (Tenn. Ct. App. 2007).
By her failure to timely object, Mother has waived her challenge to the admission
of Kirk’s testimony. In addition, it is difficult if not impossible to discern exactly which
part of Kirk’s testimony Mother would have us deem inadmissible. While some of Kirk’s
knowledge of the case was based upon her review of records, not all of it was. Kirk was
on the case for around six weeks leading up to trial and she had interacted with Mother.
We find no reversible error in the Juvenile Court’s consideration of Kirk’s testimony.
Turning to grounds for termination, we address whether the Juvenile Court erred in
finding that the ground of abandonment by failure to support was proven against Mother.
The record shows that Mother failed to pay child support during the relevant timeframe for
this ground, February 10, 2021 through June 9, 2021. In her brief, Mother argues that the
Juvenile Court should have considered Mother’s child support payments made after DCS
filed its petition. However, Mother’s failure to pay child support in the relevant statutory
period may not be repented of by her paying child support in some other period of time.
Mother has established no affirmative defense to her failure to pay child support in the
relevant timeframe. We find, as did the Juvenile Court, that the ground of abandonment
by failure to support was proven against Mother by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding that the ground of
substantial noncompliance with the permanency plans was proven against Mother. Mother
argues that the Juvenile Court erred by finding that she failed to “substantially comply”
with the permanency plans as opposed to finding her in “substantial noncompliance.”
Mother also states that she completed an alcohol and drug abuse assessment along with her
in-patient rehabilitation program; that there is no evidence she lives with an inappropriate
person; that there is no evidence beyond a statement of counsel that Mother was arrested
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on the day of the hearing; that the Juvenile Court failed to weigh the “core” elements of
the permanency plans; and that her completion of an in-patient rehabilitation program and
all of her parenting classes demonstrates that she was not in substantial noncompliance
with her permanency plans.
Mother is correct in that this ground requires proof of “substantial noncompliance”
with a permanency plan rather than proof of failure to “substantially comply.” However,
elsewhere in its findings relative to this ground, the Juvenile Court used the correct
formulation, “substantial noncompliance.” The Juvenile Court also quoted the ground,
discussed it, and cited caselaw about it. We are satisfied that the Juvenile Court, although
it used the wrong formulation “substantially comply” at one point, understood the
distinction with “substantial noncompliance” and did not apply an erroneous standard.
With respect to Mother’s assertion that there is no evidence she was arrested the day of the
hearing, we note that her own motion to reconsider asserts she was arrested that day.
Indeed, that is the central basis of her motion. Mother’s other arguments relative to this
ground implicate the Juvenile Court’s factual findings. Upon our review of the record, we
conclude that the evidence does not preponderate against the Juvenile Court’s factual
findings. Mother did not follow through with her drug treatment; did not adhere to aftercare
instructions; and would not even tell DCS her address. In a case where drugs and lack of
suitable housing were at the forefront in preventing reunification, these were indeed core,
substantial instances of noncompliance with the permanency plans on Mother’s part. We
find, as did the Juvenile Court, that the ground of substantial noncompliance with the
permanency plans was proven against Mother by clear and convincing evidence.
We next address whether the ground of persistent conditions was proven against
Mother. The Children were removed from Mother’s care in November 2019; DCS filed a
petition alleging dependency and neglect; and the termination petition was first set to be
heard in November 2021, more than six months after the Children were removed. Thus,
the initial element of this ground is satisfied. Regarding the other elements, Mother argues
that one positive drug screen does not amount to clear and convincing evidence to prove
the ground of persistent conditions against her. However, that was not the sole evidentiary
basis for the Juvenile Court’s finding as to this ground. The Juvenile Court found that drug
issues, inappropriate housing, and criminal issues still persisted in Mother’s life.
Furthermore, contrary to Mother’s contention, it was perfectly legitimate for the Juvenile
Court to consider and weigh heavily Mother’s failed drug test from one week before trial
as part of its analysis on the ground of persistent conditions. Mother’s testing positive for
drugs a week before trial, in a case where drug abuse was a major reason for the Children’s
removal into state custody some two years before the termination trial, strongly reflects
that Mother’s drug problem persists. The evidence does not preponderate against the
Juvenile Court’s factual findings relative to this issue.
-21-
We find that the conditions leading to the Children’s removal still persist; that there
is little likelihood these conditions will be remedied at an early date so that the Children
can safely return to the home; and that continuation of the parent-child relationship greatly
diminishes the Children’s chances of being placed into a safe, stable, and permanent home.
In sum, we find, as did the Juvenile Court, that the ground of persistent conditions was
proven against Mother by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding that the ground of
severe child abuse was proven against Mother. We have previously determined that a prior
finding by a juvenile court in dependency and neglect proceedings can be res judicata in
parental rights termination proceedings. See In re Dakota C.R., 404 S.W.3d 484, 497
(Tenn. Ct. App. 2012). In those cases, the doctrine of res judicata prevents the issue from
being re-litigated in the subsequent parental rights termination proceeding. Id. In
September 2020, the Juvenile Court found that a half-sibling of the Children was a victim
of severe child abuse perpetrated by Mother as defined at Tenn. Code Ann. § 37-1-
102(b)(27).8 The severe child abuse finding was based upon in utero exposure to
methamphetamine and THC. The record contains no evidence that Mother ever appealed
this finding. Mother does not challenge the finality or validity of the order finding severe
child abuse. Res judicata thus applies to this ground. In view of these facts, we find, as
did the Juvenile Court, that the ground of severe child abuse was proven against Mother by
clear and convincing evidence.
We next address whether the Juvenile Court erred in finding that the ground of
failure to manifest an ability and willingness to assume custody was proven against Mother.
With regard to the requirements for the first prong of this ground, the Tennessee Supreme
Court has explained:
[W]e conclude that section 36-1-113(g)(14) places a conjunctive obligation
on a parent or guardian to manifest both an ability and willingness to
personally assume legal and physical custody or financial responsibility for
the child. If a person seeking to terminate parental rights proves by clear and
convincing proof that a parent or guardian has failed to manifest either ability
or willingness, then the first prong of the statute is satisfied.
In re Neveah M., 614 S.W.3d 659, 677 (Tenn. 2020) (citation omitted).
8
Tenn. Code Ann. § 36-1-113(g)(4) (West April 22, 2021 to June 30, 2021) encompassed severe child
abuse against “any child[.]”
-22-
Mother makes various arguments on this ground, to wit: that the Juvenile Court
wrongly found that Mother failed to support the Children; that the Juvenile Court wrongly
held against Mother her refusal to give DCS her address; that the Juvenile Court made no
findings concerning the Children’s physical or psychological wellbeing; that the Juvenile
Court inappropriately shifted the burden to Mother as evidenced by its finding that
“[n]either parent has provided any proof that they are ready to assume physical custody of
the children”; and that the Juvenile Court made no finding that the Children were at risk of
substantial harm should they be returned to Mother.
Addressing Mother’s points, while she did in fact pay some child support, she did
so only after DCS filed its termination petition. Further, it was appropriate for the Juvenile
Court to consider Mother’s refusal to disclose her address in connection with this ground.
Whether Mother is able or willing to assume custody of the Children stems in no small part
on her ability or willingness to provide suitable housing for them. Mother’s refusal to
disclose her address demonstrates neither an ability nor willingness to parent the Children,
in fact, it reflects a lack of seriousness about the whole process of reunifying with the
Children. With respect to Mother’s contention that the Juvenile Court inappropriately
shifted the burden to her on this ground, we believe that the Juvenile Court simply made a
correct observation—that is, Mother put on no proof in opposition to DCS’s proof that she
was not ready to assume physical custody of the Children. That is quite a different thing
from shifting the burden of proof onto Mother. We find, as did the Juvenile Court, that the
first prong of this ground was proven against Mother by clear and convincing evidence in
that Mother failed to manifest an ability to personally assume legal and physical custody
or financial responsibility of the Children.
However, there is a second prong to contend with on this ground. Both prongs must
be proven. Mother correctly points out that the Juvenile Court failed to make specific
factual findings concerning the second prong of whether placing the Children in Mother’s
legal and physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the Children. A trial court’s failure to make factual findings
regarding the second prong of the ground of failure to manifest an ability and willingness
to assume custody is a basis for vacating the ground. See Tenn. Code Ann. § 36-1-113(k)
(“The court shall enter an order that makes specific findings of fact and conclusions of
law….”) (West April 22, 2021 to June 30, 2021). In theory, the same factual findings that
sustain the first prong could also sustain the second prong. Here, however, the Juvenile
Court never specifically tied its factual findings made in connection with the first prong to
the second prong; it just made a bare-bones conclusion of law. Given the Juvenile Court’s
failure to make specific findings regarding the second prong of this ground, we vacate the
ground of failure to manifest an ability and willingness to assume custody.
-23-
Having affirmed certain grounds for termination, the final issue we address is
whether the Juvenile Court erred in finding that termination of Mother’s parental rights is
in the Children’s best interest. On June 10, 2021, when DCS filed its petition, the best
interest factors read as follows:
(i)(1) In determining whether termination of parental or guardianship rights
is in the best interest of the child, the court shall consider all relevant and
child-centered factors applicable to the particular case before the court.
Those factors may include, but are not limited to, the following:
(A) The effect a termination of parental rights will have on the child’s critical
need for stability and continuity of placement throughout the child’s
minority;
(B) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological, and medical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting
the child’s basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental
attachment, and if not, whether there is a reasonable expectation that the
parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact with
the child and used the visitation or other contact to cultivate a positive
relationship with the child;
(F) Whether the child is fearful of living in the parent’s home;
(G) Whether the parent, parent’s home, or others in the parent’s household
trigger or exacerbate the child’s experience of trauma or post-traumatic
symptoms;
(H) Whether the child has created a healthy parental attachment with another
person or persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons
other than parents and caregivers, including biological or foster siblings, and
the likely impact of various available outcomes on these relationships and
the child’s access to information about the child’s heritage;
(J) Whether the parent has demonstrated such a lasting adjustment of
circumstances, conduct, or conditions to make it safe and beneficial for the
child to be in the home of the parent, including consideration of whether there
is criminal activity in the home or by the parent, or the use of alcohol,
controlled substances, or controlled substance analogues which may render
the parent unable to consistently care for the child in a safe and stable
manner;
-24-
(K) Whether the parent has taken advantage of available programs, services,
or community resources to assist in making a lasting adjustment of
circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent
in making a lasting adjustment in cases where the child is in the custody of
the department;
(M) Whether the parent has demonstrated a sense of urgency in establishing
paternity of the child, seeking custody of the child, or addressing the
circumstance, conduct, or conditions that made an award of custody unsafe
and not in the child’s best interest;
(N) Whether the parent, or other person residing with or frequenting the
home of the parent, has shown brutality or physical, sexual, emotional, or
psychological abuse or neglect toward the child or any other child or adult;
(O) Whether the parent has ever provided safe and stable care for the child
or any other child;
(P) Whether the parent has demonstrated an understanding of the basic and
specific needs required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to
creating and maintaining a home that meets the child’s basic and specific
needs and in which the child can thrive;
(R) Whether the physical environment of the parent’s home is healthy and
safe for the child;
(S) Whether the parent has consistently provided more than token financial
support for the child; and
(T) Whether the mental or emotional fitness of the parent would be
detrimental to the child or prevent the parent from consistently and
effectively providing safe and stable care and supervision of the child.
(2) When considering the factors set forth in subdivision (i)(1), the prompt
and permanent placement of the child in a safe environment is presumed to
be in the child’s best interest.
(3) All factors considered by the court to be applicable to a particular case
must be identified and supported by specific findings of fact in the court’s
written order.
(4) Expert testimony is not required to prove or disprove any factor by any
party.
(5) As used in this subsection (i), “parent” includes guardian.
Tenn. Code Ann. § 36-1-113(i) (West April 22, 2021 to June 30, 2021).
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With regard to making a determination concerning a child’s best interest, the
Tennessee Supreme Court has instructed:
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 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
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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).9
Mother makes several arguments as to why, in her view, the Juvenile Court erred in
its best interest analysis, to wit: there was no evidence that the Children’s foster parents
could “support” the Children’s therapy; that Mother visited the Children; that Mother
completed several services through her permanency plans; that Mother had not
“consistently failed” drug screens for methamphetamine; that Mother paid more than token
child support; and that there was no evidence regarding Mother’s mental or emotional
fitness such that Mother’s alleged unfitness in those areas bore on the Children’s best
interest.
While granting that Mother paid some child support, albeit tardily, Mother’s other
points are not well-taken. Foster Father’s uncontroverted testimony was that the Children
are in a stable environment and their needs are being attended to. Meanwhile, Mother
tested positive for methamphetamine and THC a mere week before trial and she refused to
give DCS her address. Mother’s completion of certain services through her permanency
plans is commendable but insufficient. She clearly has significant, unresolved issues
impairing her ability to safely parent the Children, particularly with respect to drugs and
her housing situation. Finally, while Mother has engaged in some manner of visitation
with the Children, these visits were sporadic and not very meaningful. In contrast, the
evidence shows that the Children are in a loving, stable home with foster parents who want
to adopt them. The Juvenile Court made detailed findings, which are quoted above,
considering each of the statutory best interest factors found at Tenn. Code Ann. § 36-1-
113(i). The evidence does not preponderate against the Juvenile Court’s findings relative
to the Children’s best interest. We find by clear and convincing evidence, as did the
Juvenile Court, that termination of Mother’s parental rights is in the Children’s best
interest.
9
In In re Gabriella D., a prior version of the best interest factors was in effect. However, we believe the
Tennessee Supreme Court’s analysis applies to the amended version of Tenn. Code Ann. § 36-1-113(i), as
well.
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Conclusion
We vacate the ground of failure to manifest an ability and willingness to assume
custody. We affirm the Juvenile Court’s judgment in all other respects, including the
termination of Mother’s parental rights to the Children. The judgment of the Juvenile Court
is thus affirmed as modified, and this cause is remanded to the Juvenile Court for collection
of the costs below. The costs on appeal are assessed against the Appellant, Pamela C., and
her surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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