In Re James v. ( 2017 )

05/31/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 1, 2017
IN RE: JAMES V., ET AL.
Direct Appeal from the Juvenile Court for Overton County
No. 16-JV-23 Daryl A. Colson, Judge
No. M2016-01575-COA-R3-PT
This appeal involves the termination of a mother’s parental rights to her two sons. The
trial court found by clear and convincing evidence that four grounds for termination were
proven and that it was in the best interest of the children to terminate parental rights.
Mother appeals but only challenges the best interest determination. We have also
reviewed the evidence regarding each ground for termination. We vacate the trial court’s
finding regarding one ground for termination but otherwise affirm the trial court’s order
and affirm the termination of the mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in
part, Affirmed in part and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which RICHARD H.
DINKINS, and THOMAS R. FRIERSON, II, JJ., joined.
Joshua Vernon Hoeppner, Kingsport, Tennessee, for the appellant, Virginia V.G.
Herbert H. Slatery III, Attorney General and Reporter, Alexanders S. Rieger, Assistnat
Attorney General and Martha A. Campbell, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. FACTS & PROCEDURAL HISTORY
Virginia V.G.1 (“Mother”) gave birth to a son, James V., in December 2006. The
1
In cases involving a minor child, it is this Court’s policy to redact names in order to protect the child’s
identity. In this case, in order to preserve both clarity and the anonymity of the child, we will redact the
names of individuals sharing the child’s surname and will refer to those individuals by their given name
and the first letter of their surname.
child was born out-of-wedlock. The Tennessee Department of Children’s Services
(“DCS”) became involved with James in 2009 due to allegations of abandonment and
nutritional neglect. Mother was released from jail around this time and admitted that she
could not care for James, so DCS placed him with his grandparents. Mother gave birth to
a second son (“Brother”) in July 2010.2 James remained with his grandparents until
2012, when DCS investigated the grandmother for alleged abuse of James. At that point,
James was placed back in Mother’s home. However, Mother’s involvement with DCS
continued.
Over the years, DCS conducted ten separate investigations of Mother’s home. The
reasons for these investigations included physical abuse, unexplained bruises on the
children, environmental neglect, drug use by Mother, homelessness, and inability to
establish a suitable home. DCS developed a non-custodial permanency plan for Mother
that included in-home counseling, parenting education, and other services. Still, on April
21, 2015, the juvenile court adjudicated James and Brother dependent and neglected after
James came to school with extensive bruising, scratches, and “slash marks” on his arm
and reported that Mother “beat” him with a plastic strip off of their refrigerator. During
the investigation, DCS workers observed that Mother’s home was cluttered with clothes
and scattered garbage. The juvenile court found that the children’s safety could not be
adequately protected in the home and that there was no less drastic alternative than
removing the children from the home. The court granted temporary legal custody to
DCS, and the children entered foster care on April 21, 2015.
DCS developed a permanency plan for Mother on May 6, 2015, which required
her to complete numerous tasks to work toward the goal of returning the children to her
home. Mother completed some tasks but failed to comply with many others. In
December 2015, Mother’s supervised visits with the children were stopped due to
adverse behavioral reactions the children were experiencing in connection with the
visitation, in addition to the facts that a case worker observed what appeared to be drugs
during a visit to Mother’s home, and Mother failed a drug screen at a visit with the
children later that day.
Ten months after the children entered foster care, on March 8, 2016, DCS filed a
petition to terminate Mother’s parental rights based on the statutory grounds of
abandonment by failure to pay child support, abandonment by failure to establish a
suitable home, substantial noncompliance with the permanency plan, and persistent
conditions. Counsel was appointed for Mother, and a bench trial was held on June 28,
2016. By that time, Mother was pregnant with a third child. James was nine years old,
and Brother was five. The trial court heard testimony from eight witnesses presented by
2
Because the second child has a very distinctive name, we will refer to him simply as Brother.
2
DCS, including the children’s family service workers from DCS, an investigator for child
protective services, various counselors, the family service coordinator who provided in-
home parenting education, and an in-home case manager. Mother did not testify or call
any witnesses.
On July 14, 2016, the trial court entered its written order. The court found by
clear and convincing evidence that all four grounds for termination were proven and that
termination of Mother’s parental rights was in the best interest of the children. Mother
timely filed a notice of appeal.3
II. ISSUES PRESENTED
The only issue raised by Mother on appeal is whether the trial court erred in
concluding that termination of parental rights was in the children’s best interest. She
does not challenge the trial court’s findings regarding the existence of four grounds for
termination. Nevertheless, we must address these issues. The Tennessee Supreme Court
has stated unequivocally 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 507, 525-
26 (Tenn. 2016). As a result, we have reviewed the trial court’s findings regarding all
grounds for termination and regarding the best interest analysis. For the following
reasons, we affirm the trial court’s order as modified and remand for further proceedings.
III. DISCUSSION
In Tennessee, proceedings to terminate parental rights are governed by statute. In
re Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015). Tennessee Code Annotated section
36-1-113 “sets forth the grounds and procedures for terminating the parental rights of a
biological parent.” Id. at 546. Pursuant to the statute, parties who have standing to seek
termination of a biological parent’s parental rights must prove two elements. Id. at 552.
First, they must prove the existence of at least one of the statutory grounds for
termination listed in Tennessee Code Annotated section 36-1-113(g). Id. Second, the
petitioner must prove that terminating parental rights is in the child’s best interest,
considering, among other things, the factors listed in Tennessee Code Annotated section
36-1-113(i). Id.
3
On appeal, DCS notes in a footnote in its brief that “[t]he notice of appeal was not signed by Mother as
required by Tenn. Code Ann. § 36-1-124(d), which became effective on July 1, 2016.” DCS does not
present any argument regarding this issue or suggest that the appeal should be dismissed on this basis.
Accordingly, we will proceed to consider the merits of the appeal.
3
Because of the constitutional dimension of the rights at stake in a termination
proceeding, persons seeking to terminate parental rights must prove both of these
elements by clear and convincing evidence. In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215
S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)).
“The purpose of this heightened burden of proof is to minimize the possibility of
erroneous decisions that result in an unwarranted termination of or interference with these
rights.” Id. (citing In re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005)). “Clear and convincing evidence”
has been defined as “‘evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” In re Adoption of Angela E.,
402 S.W.3d 636, 640 (Tenn. 2013) (quoting In re Valentine, 79 S.W.3d at 546). It
produces a firm belief or conviction in the fact-finder’s mind regarding the truth of the
facts sought to be established. In re Bernard T., 319 S.W.3d at 596.
Due to this heightened burden of proof in parental termination cases, on appeal we
adapt our customary standard of review set forth in Tennessee Rule of Appellate
Procedure 13(d). In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). First, we
review each of the trial court’s factual findings de novo in accordance with Rule 13(d),
presuming the finding to be correct unless the evidence preponderates against it. In re
Adoption of Angela E., 402 S.W.3d at 639. Then, we make our own determination
regarding “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 Carrington H., 483 S.W.3d at 524 (citing 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.” Id. (citing In re M.L.P., 281
S.W.3d 387, 393 (Tenn. 2009)).
1. Grounds for Termination
a. Abandonment by Failure to Support
The first ground for termination listed in the termination statute is abandonment.
See Tenn. Code Ann. § 36-1-113(g)(1). For purposes of terminating parental rights, there
are five alternative definitions of abandonment. See Tenn. Code Ann. § 36-1-
102(1)(A)(i)-(v). According to the first definition, which is allegedly applicable in this
case, “abandonment” means:
For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
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parent or parents [] of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent or parents [] either
have willfully failed to visit or have willfully failed to support or have
willfully failed to make reasonable payments toward the support of the
child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(i). “Abandonment can be established by showing
that a parent either willfully failed to visit or willfully failed to support” his or her child
during the relevant four-month period. In re Christopher M., No. W2010-01410-COA-
R3-PT, 2010 WL 4273822, at *10 (Tenn. Ct. App. Nov. 1, 2010) (citing In re Adoption
of McCrone, No. W2001-02795-COA-R3-CV, 2003 WL 21729434, at *10 (Tenn. Ct.
App. July 21, 2003)).
“The element of willfulness is essential and central to a determination of
abandonment.” In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005); In re C.M.C.,
No. E2005-00328-COA-R3-PT, 2005 WL 1827855, at *6 (Tenn. Ct. App. Aug. 3, 2005).
It “is both a statutory and a constitutional requirement.” In re Adoption of Kleshinski,
No. M2004-00986-COA-R3-CV, 2005 WL 1046796, at *18 (Tenn. Ct. App. May 4,
2005). A parent’s conduct must have been willful in the sense that it consisted of
intentional or voluntary conduct. In re Audrey S., 182 S.W.3d at 863. “To prove the
ground of abandonment, a petitioner must establish by clear and convincing evidence that
a parent who failed to visit or support had the capacity to do so, made no attempt to do
so, and had no justifiable excuse for not doing so.” In re Adoption of Angela E., 402
S.W.3d at 640 (citing In re Audrey S., 182 S.W.3d at 864). Whether the parent failed to
visit or support the child is a question of fact, but the issue of whether the failure to visit
or support constitutes willful abandonment is a question of law. In re Adoption of Angela
E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d at 810).
Because the termination petition was filed on March 8, 2016, we look to the four-
month period immediately preceding that date, spanning from November 8, 2015, to
March 7, 2016, in order to determine whether Mother willfully failed to support her
children during that timeframe. See In re Jacob C.H., No. E2013-00587-COA-R3-PT,
2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining the calculation of the
four-month period). Beginning January 1, 2016, Mother was required by court order to
pay child support in the amount of $151 per month for James and $151 per month for
Brother. However, she paid no support during the pivotal four-month period or at any
other point since the children entered foster care. Still, this fact alone does not establish
grounds for termination of her parental rights. The determinative issue is whether her
failure to pay was willful.
Defining abandonment as the mere non-payment of support, irrespective of intent,
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would be unconstitutional. See In re D.L.B., 118 S.W.3d at 367. As such, “the financial
ability, or capacity, of a parent to pay support must be considered” when determining the
element of willfulness. In re Envy J., No. W2015-01197-COA-R3-PT, 2016 WL
5266668, at *14 (Tenn. Ct. App. Sept. 22, 2016), perm. app. denied (Tenn. Dec. 16,
2016). The relevant statutes define the concept of willful failure to support or to make
reasonable payments toward support as the willful failure to provide monetary support or
“more than token payments toward the support of the child.” Tenn. Code Ann. § 36-1-
102(1)(D). Token support is support that “under the circumstances of the individual case,
is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). By its
terms, the definition of token support “requires consideration of the circumstances of the
individual case.” In re K.C., No. M2005-00633-COA-R3-PT, 2005 WL 2453877, at *9
(Tenn. Ct. App. Oct. 4, 2005) (citing Tenn. Code Ann. § 36-1-102(1)(B)). A finding that
support was “insignificant” in light of the parent’s “means” cannot be made without
evidence regarding both a parent’s actual financial support of the child and a parent’s
“means.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *10
(Tenn. Ct. App. June 3, 2003); see also In re Malaki E., No. M2014-01182-COA-R3-PT,
2015 WL 1384652, at *7 (Tenn. Ct. App. Mar. 23, 2015) (no perm. app. filed) (“The
court must review a parent’s means[.]”). “In the context of token support, the word
‘means’ connotes both income and available resources for the payment of debt.” In re
Adoption of Angela E., 402 S.W.3d at 641 (citing In re Z.J.S., 2003 WL 21266854, at *11
n.24; Black’s Law Dictionary 1070 (9th ed. 2009)).
The Tennessee Supreme Court’s decision in In re Adoption of Angela E., 402
S.W.3d at 641, is instructive on the issue of willful failure to support. In that case, the
Tennessee Supreme Court found that the petitioners failed to provide clear and
convincing evidence of willful failure to support when there was no evidence presented
concerning the defendant-father’s monthly expenses, even though it was undisputed that
he was employed as a physician earning an annual income of $150,000 and owned lien-
free property worth at least $300,000. Id. The supreme court found the evidence
regarding the father’s income and expenses “limited at best” and deemed the evidence
insufficient. Id. The court reiterated that, in order to prove the ground of abandonment
for failure to support, the petitioner “must prove by clear and convincing evidence that
the [parent who failed to support] had the capacity to pay support but made no attempt to
do so and did not possess a justifiable excuse.” Id. Thus, In re Adoption of Angela E.
illustrates “the significance of evidence concerning a parent’s income and expenses when
the ground of abandonment by willful failure to support is alleged.” In re Navada N.,
498 S.W.3d 579, 594 (Tenn. Ct. App. 2016).
The evidence regarding Mother’s capacity to pay child support in this case is far
more limited and far less convincing than the evidence presented in In re Adoption of
Angela E. Here, the trial court found that Mother willfully failed to support the children
6
during the four-month period based on findings that she was “able bodied and capable of
working” and “aware of [her] duty to support.” The trial court found that Mother “made
no attempt to support the children and [] provided no justifiable excuse for failing to
support [them].” It also found that Mother had a “work history” of working as a home
health care nurse and that she “worked consistently with the exception of a few weeks
during the entire time the children have been in custody.” Having reviewed the evidence
presented and the trial court’s findings, we conclude that the record contains insufficient
evidence to demonstrate, clearly and convincingly, that Mother had the capacity to pay
child support during the relevant period and willfully failed to do so. As noted above,
Mother did not testify at trial. Regarding Mother’s work history, her DCS case worker
testified that she worked in the home health industry in “different jobs, but they were
similar,” and she testified that Mother stopped working around March 2016 due to
pregnancy. The record contains no evidence regarding Mother’s actual income,
expenses, or resources during the relevant four-month period or at any other time. Given
the issues at hand, this is a critical gap in the evidence that we cannot overlook. “Without
such evidence, a finding of willfulness cannot be sustained.” In re Navada N., 498
S.W.3d at 600. We simply do not know whether Mother earned enough income to enable
her to provide support for the children. “[A] court can only determine willfulness of a
parent’s failure to support where there is sufficient evidence regarding the parent’s ability
to pay.” In re Jamie G., No. M2014-01310-COA-R3-PT, 2015 WL 3456437, at *15
(Tenn. Ct. App. May 29, 2015), perm. app. denied (Tenn. Aug. 28, 2015); see, e.g., In re
Destiny H., No. W2015-00649-COA-R3-PT, 2016 WL 722143, at *10 (Tenn. Ct. App.
Feb. 24, 2016) (no perm. app. filed) (“[the] evidence concerning Mother’s employment
does not provide sufficient insight into her total income earned or her expenses during the
relevant four-month period so as to provide clear and convincing evidence that any
failure to support was willful”).
The burden to prove abandonment by willful failure to support rested squarely on
DCS as the petitioner. In a termination proceeding, we cannot fault a parent for the
absence of evidence regarding his or her financial situation. The burden is not on the
parent to demonstrate an inability to pay; the burden is on the petitioner to prove by clear
and convincing evidence that the parent had the capacity to pay, made no attempt to do
so, and had no justifiable excuse for not doing so. See In re Adoption of Angela E., 402
S.W.3d at 641. Without basic information regarding a parent’s means, we are unable to
determine, by clear and convincing evidence, whether the parent had the capacity to
provide support or lacked a justifiable excuse for failing to do so. Keeping in mind the
heavy burden necessary to interfere with a fundamental constitutional right, the evidence
offered by DCS was simply insufficient to show that Mother’s failure to support her
children was willful. See In re Envy J., 2016 WL 5266668, at *14. Consequently, we
vacate the trial court’s finding regarding this ground for termination.
7
b. Abandonment by Failure to Establish a Suitable Home
The second definition of abandonment that is relevant to this appeal provides that
abandonment occurs when:
(ii) The child has been removed from the home of the parent ... as the result
of a petition filed in the juvenile court in which the child was found to be a
dependent and neglected child, as defined in § 37-1-102, and the child was
placed in the custody of the department or a licensed child-placing agency,
that the juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-placing
agency made reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable efforts from
being made prior to the child’s removal; and for a period of four (4) months
following the removal, the department or agency has made reasonable
efforts to assist the parent . . . to establish a suitable home for the child, but
that the parent or parents . . . have made no reasonable efforts to provide a
suitable home and have demonstrated a lack of concern for the child to such
a degree that it appears unlikely that they will be able to provide a suitable
home for the child at an early date. The efforts of the department or agency
to assist a parent or guardian in establishing a suitable home for the child
may be found to be reasonable if such efforts exceed the efforts of the
parent . . . toward the same goal, when the parent . . . is aware that the child
is in the custody of the department[.]
Tennessee Code Annotated section 36-1-102(1)(A)(ii).
For purposes of the statute, a “suitable home” means more than just an adequate
physical space. In re Roger T., No. W2014-02184-COA-R3-PT, 2015 WL 1897696, at
*8 (Tenn. Ct. App. Apr. 27, 2015) (no perm. app. filed); In re Malaki E., 2015 WL
1384652, at *9. “A suitable home for purposes of termination of parental rights is not
merely a solidly built structure.” In re Jonathan F., No. E2014-01181-COA-R3-PT,
2015 WL 739638, at *12 (Tenn. Ct. App. Feb. 20, 2015) (no perm. app. filed). A suitable
home requires a safe and stable environment in which a child can live, id., and “the
presence of a care giver who can supply the care and attention a child needs.” In re
Malaki E., 2015 WL 1384652, at *9. “‘[A] home may be rendered unsafe and unsuitable
by the conduct of its occupants.’” In re Kayla B., No. E2016-01192-COA-R3-PT, 2017
WL 438622, at *6 (Tenn. Ct. App. Feb. 1, 2017) (quoting In re Joshua S., No. E2010-
01331-COA-R3-PT, 2011 WL 2464720, at *18 (Tenn. Ct. App. June 16, 2011)). For
example, a suitable home must be free from drug use and violence. In re Hannah H., No.
8
E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014),
perm. app. denied (Tenn. Sept. 2, 2014).
We conclude that each of the elements of this ground was sufficiently proven in
the present case. The children were removed from Mother’s home through the
dependency and neglect proceeding and placed in the custody of DCS. At trial, Mother’s
case worker testified that Mother failed to exert reasonable efforts to work with DCS
during the four months after removal. She explained that DCS workers attempted to visit
Mother’s home on numerous occasions, and the majority of the time, Mother simply
refused to open the door. Overall, the case worker was allowed inside “a few times.”
The case worker testified that Mother made no effort to establish a suitable home
environment for the children. She described Mother’s home as “completely unfit,”
“completely inappropriate,” and “unsanitary.” She said the home had clutter, garbage,
and animal feces all over the floors. She testified that the DCS workers identified
numerous health and safety hazards in the home and identified steps that should be taken
to correct them. DCS also requested funding for rental deposits for Mother and referred
her to a program for utility assistance. However, according to the case worker, Mother
made absolutely no progress in improving her home environment.
Mother’s issues with her home had existed for years. Even prior to the children’s
removal from the home, under the non-custodial plan, Mother had been provided with in-
home services including parenting education instruction on how to the keep the home
clean and organized. That service had been provided for a period of three years prior to
removal. The in-home case manager testified that even then, the home was a mess and
had a roach problem, and the children were dirty and smelled like urine and feces. Based
on her experience with Mother over the course of three years, the case manager believed
that Mother was not capable of keeping her house clean or creating a safe environment
for her children. A family service coordinator from another center testified that she
began in-home parenting education classes with Mother in 2009 and in 2012, and both
times, the services ended because Mother stopped returning her calls and failed to
maintain contact with the provider. She testified that Mother was “indifferent” during the
in-home classes that did occur.
One week before the termination trial, the DCS case worker visited Mother’s
home for the last time and observed that it remained dirty, cluttered, and infested with
roaches and spiders “all over the place.” She saw roaches on the walls, couch, sink, and
kitchen cabinets, and bug feces or something similar all over the dishes. The freezer had
a very bad smell and contained moldy rotten food. Mother’s home remained in this
condition despite the fact that she was about seven months pregnant and not working
outside the home.
9
Mother’s nephew and his girlfriend were also living in the home, and they both
had an extensive history with DCS dating back many years. After James was removed
from the home, he reported during a forensic interview that he had endured multiple
incidents of abuse by the nephew, the nephew’s girlfriend’s son, Mother, Mother’s
husband. DCS had “multiple concerns” with the nephew and his girlfriend, including
drug use. Still, Mother allowed them to remain in the home and live in the children’s
room after the children were removed, and she became angry when DCS suggested that
Mother ask them to leave. Mother’s husband, who also lived in the home, had failed two
drug screens as well. Mother had not failed any drug screens since she found out she was
pregnant in the months before trial. Given her history, however, her case worker
believed that she would still be using drugs if she was not currently pregnant.
Based on this evidence, we conclude that despite DCS’s reasonable efforts to
assist Mother, she failed to make reasonable efforts to provide a suitable home for the
children, and she has demonstrated a lack of concern for the children to such a degree
that it appears unlikely that she will be able to provide a suitable home for them at an
early date. We affirm the trial court’s finding that this ground for termination was proven
by clear and convincing evidence.
c. Substantial Noncompliance
The next ground for termination asserted by DCS and found by the trial court was
substantial noncompliance. This ground is found in Tennessee Code Annotated section
36-1-113(g)(2) and applies when “[t]here has been substantial noncompliance by the
parent . . . with the statement of responsibilities in a permanency plan[.]” “Determining
whether a parent has substantially complied with a permanency plan involves more than
merely counting up the tasks in the plan to determine whether a certain number have been
completed[.]” In re Carrington H., 483 S.W.3d at 537. As we have said before,
“[T]he requirements of the permanency plan are intended to address the
problems that led to removal; they are meant to place the parent in a
position to provide the children with a safe, stable home and consistent
appropriate care. This requires the parent to put in real effort to complete
the requirements of the plan in a meaningful way in order to place herself in
a position to take responsibility for the children.”
In re Derrick J., No. E2015-01507-COA-R3-PT, 2016 WL 3752013, at *11 (Tenn. Ct.
App. July 8, 2016) (no perm. app. filed) (quoting In re C.S., Jr., No. M2005-02499-COA-
R3-PT, 2006 WL 2644371, at *10 (Tenn. Ct. App. Sept. 14, 2006)). “In the context of
the requirements of a permanency plan, the real worth and importance of noncompliance
should be measured by both the degree of noncompliance and the weight assigned to that
10
requirement.” In re Valentine, 79 S.W.3d at 548. The word “substantial” means “‘of real
worth and importance.’” Id. (quoting Black’s Law Dictionary 1428 (6th ed. 1990)).
In conjunction with the determination of substantial noncompliance, the trial court
must find that the requirements of the permanency plan are “reasonable and are related to
remedying the conditions that necessitate foster care placement.” Tenn. Code Ann. § 37-
2-403(a)(2)(C). “Conditions necessitating foster care placement may include conditions
related both to the child’s removal and to family reunification.” In re Valentine, 79
S.W.3d at 547. We agree with the trial court’s finding that the requirements of Mother’s
permanency plan were reasonable and related to remedying the conditions necessitating
foster care placement. We now examine Mother’s efforts to comply with those
requirements.
The permanency plan required Mother to successfully complete an alcohol and
drug assessment and a psychological evaluation and follow the providers’
recommendations. DCS arranged for a psychological evaluation for Mother and Mother
completed it, but the provider concluded that Mother was deceptive and untruthful in her
responses, and therefore, no recommendations could be made. DCS then arranged
funding for a second psychological evaluation with a different doctor, and again it
revealed that she was untruthful. Mother’s case worker testified that the same problem
occurred with Mother’s alcohol and drug assessment. She testified that Mother
participated in “about five” alcohol and drug assessments that resulted in no
recommendations because she was untruthful. Eventually, a facility used combined
information from Mother’s failed assessments and recommended that she attend intensive
outpatient treatment. The case worker testified that Mother completed an intensive
outpatient program for drugs and alcohol twice, but she tested positive two weeks after
completing the first program, and she completed the second program just one week
before trial. Mother had yet to complete the recommended “aftercare” program, which
would include AA and NA meetings, and she had not yet demonstrated that she could
maintain sobriety.
The permanency plan also required Mother to submit to drug screens and to
submit to “pill counts” for prescribed narcotics. Mother passed “some” drug screens but
failed others. She missed three drug screens in the two weeks before trial. Her pill
counts for her prescribed oxycodone were “off” by as many as forty pills. The
permanency plan required her to refrain from associating with known drug users, but all
three of the people residing in Mother’s home had issues with drugs, and while visiting
the home, Mother’s case worker observed a plate with a “crushed up white substance”
and a straw.
Mother completed an “NET” program through the court (described as “a life
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class”) that was supposed to last 26 weeks, but it took her 13 months to complete it, and
she finished just one month before trial. She participated in some anger management
counseling, but her provider testified that it was not completed or successful. According
to the provider, she set up an initial appointment with Mother in November 2015, but
when she arrived at Mother’s house, she would not answer the door, and Mother did not
answer her calls thereafter. DCS arranged for a second referral to the provider in May
2016, the month before trial, for ten hours of family violence counseling. Mother
participated in 9.5 hours of counseling, but the provider testified that Mother’s answers in
response to various proposed scenarios “were just not appropriate.” Mother cancelled
one appointment and was late to two others. She initially cancelled another but told the
provider she decided to participate because “she realized that cancelling wouldn’t look
good when she goes to court for her TPR hearing next month.” She also stated to the
provider that she did not know why she had to participate because she did not believe she
had an anger problem.
Mother was required to attend supervised visits with the children, but her visits
were terminated, in part, because her case manager determined that Mother had used
drugs before a visit. As noted earlier, Mother also failed to pay child support as required
by the plan, refused to allow her case worker to conduct home visits, and failed to
maintain a clean home as required by the permanency plan. The case worker believed
that Mother “blatantly refused to cooperate.”
Considering this evidence, we agree with the trial court’s conclusion that clear and
convincing evidence was presented to demonstrate that Mother’s noncompliance with the
permanency plan was substantial. She failed to demonstrate a genuine attempt to comply
with the tasks in the plan. Simply “‘going through the motions’ does not constitute
substantial compliance.” In re Carrington H., 483 S.W.3d at 537. Mother failed to put
forth “real effort to complete the requirements of the plan in a meaningful way in order to
place herself in a position to take responsibility for the children.” In re Derrick J., 2016
WL 3752013, at *11 (quotation omitted).
d. Persistent Conditions
Finally, we address the statutory ground for termination that is commonly referred
to as “persistent conditions,” which is defined in Tennessee Code Annotated section 36-
1-113(g)(3) as existing when:
The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions that in
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all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child’s safe return to the
care of the parent or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent or parents or
the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable
and permanent home[.]
The purpose behind this ground for termination is “‘to prevent the child’s lingering in the
uncertain status of foster child if a parent cannot within a reasonable time demonstrate an
ability to provide a safe and caring environment for the child.’” In re Dakota C.R., 404
S.W.3d 484, 499 (Tenn. Ct. App. 2012) (quoting In re A.R., No. W2008-00558-COA-R3-
PT, 2008 WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008)). In cases involving this
ground, it is not necessary to prove that a parent-child relationship cannot be salvaged,
nor is it necessary to show that a parent is currently harmful to a child’s safety or
emotional stability. In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959,
at *5 (Tenn. Ct. App. July 21, 2000). The statutes governing termination of parental
rights recognize a child’s need for a permanent, stable environment. Id. Accordingly, the
question 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 with periodic visits with the
parent. Id. When analyzing this ground for termination, we focus 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 at 874. Based on the evidence already discussed at length in
this opinion, we agree with the trial court’s conclusion that each of the elements of this
ground for termination was proven by clear and convincing evidence. The children were
removed from Mother’s home by the requisite court order, the conditions that led to their
removal and other conditions still persist and in all reasonable probability would cause
the children to be subjected to further abuse and neglect, preventing a safe return to
Mother’s care. There is little likelihood that these conditions will be remedied at an early
date so that the children can be safely returned in the near future. And finally,
continuation of the parent-child relationship greatly diminishes the child’s chances of
early integration into a safe, stable and permanent home. See Tenn. Code Ann. § 36-1-
113(g)(3).
B. Best Interest
We now address the single issue raised by Mother on appeal – whether
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termination is in the best interest of the children. Tennessee Code Annotated section 36-
1-113(i) provides a list of factors that are relevant when deciding what is in a child’s best
interest. However, the list is not exhaustive, and the court is not required to find the
existence of every factor before concluding that termination is in a child’s best interest.
In re Joseph F., 492 S.W.3d 690, 706 (Tenn. Ct. App. 2016). On appeal, Mother argues
that termination of parental rights was not in the best interest of the children because they
were placed in three different foster homes in the fourteen-month period between their
removal from her home and the termination trial. She argued to the trial court that
termination of her rights was “premature” and that it would not harm the children to
allow her an additional six months to work on the permanency plan because the
children’s current foster family would not be eligible to adopt them for about six months
anyway. She maintains on appeal that terminating her parental rights would do nothing
to “remove the stigma of being in foster care.” We reject this argument, as did the trial
court.
Mother fails to mention that the children were removed from their first foster
home, in part, because Mother was stalking the foster family and parking near their
home, which led to James being afraid of windows and overly anxious that he would be
kidnapped by Mother. The second foster family earnestly desired to adopt the children
until the father unexpectedly became severely ill. The children were placed with a third
foster family approximately ten days before trial. This foster family worked with DCS to
learn about the children’s needs for about a month and met with the children prior to the
move, and the case worker testified that it was “a seamless transition.” She testified that
the boys really like the new foster parents and that the foster parents want to adopt them.
The case worker testified that James has made a substantial amount of progress
since being placed in foster care. When James entered foster care, he was in second
grade but unable to read. By the time of trial, James was reading at grade-level and
scoring above grade-level in math. His counselor said he had improved by “leaps and
bounds.” James still took medication for ADHD but was no longer in a classroom for
children with behavioral problems, and he was taking less medication than when he
entered foster care. The case worker testified that both children were doing very well.
She said that in her eight years of experience with DCS, she had “never seen such a
turnaround in children as far as behavior.” She said “they are different children today
than they were fourteen months ago.” According to the case worker, neither child had
asked to see Mother, and the children had no meaningful relationship with her.
We see no justification for allowing Mother an additional six months to work on
the permanency plan. The trial judge aptly noted that Mother has caused numerous
delays already by her deceptive answers to alcohol and drug assessments and
psychological evaluations, indifference to counseling, and her refusal to cooperate with
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DCS. The trial judge observed that Mother’s actions were “inconsistent with a mother
who wants to have her children returned.” As Mother’s case worker testified at trial, “we
are still working on the same issues that we had on day one.” She added, “these children
don’t . . . deserve to have to sit and wait on a parent that is continuously making the same
choices over and over and over since 2009.” We agree. “The child’s best interests must
be viewed from the child’s, rather than the parent’s, perspective.” White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004). “[W]hen the interests of the parent and the child
conflict, courts are to resolve the conflict in favor of the rights and best interest of the
child.” In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013) (citing Tenn.
Code Ann. § 36-1-101(d)). The trial judge discussed all nine of the best interest factors
and ultimately concluded that “the only hope that these children have for a future is
through adoption.” Like the trial court, we conclude that the evidence clearly and
convincingly establishes that it is in the best interest of the children for Mother’s parental
rights to be terminated.
IV. CONCLUSION
For the aforementioned reasons, the decision of the trial court is hereby vacated in
part, affirmed in part, and remanded for further proceedings. Costs of this appeal are
taxed to the appellant, Virginia V.G. Because Virginia V.G. is proceeding in forma
pauperis in this appeal, execution may issue for costs if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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