In re A'Leah M. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 7, 2016
IN RE: A’LEAH M., ET AL.
Appeal from the Juvenile Court for Knox County
No. 127109 Tim Irwin, Judge
No. E2015-01234-COA-R3-PT-FILED-FEBRUARY 23, 2016
Tanisha M. (“Mother”) appeals the order of the Juvenile Court for Knox County
(“Juvenile Court”) terminating her parental rights to the minor children A‟Leah M. (“the
Older Child”) and Sh Myah M. (“the Younger Child” or collectively “the Children”) for
abandonment by willful failure to pay child support pursuant to Tenn. Code Ann. § 36-1-
113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i), for failure to comply with a
permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2), and for persistent
conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We find and hold that the
evidence does not preponderate against the findings of the Juvenile Court made by clear
and convincing evidence that grounds were proven to terminate Mother‟s parental rights
to the Children and that it was in the Children‟s best interest for Mother‟s parental rights
to be terminated. We, therefore, affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Robin Gunn, Knoxville, Tennessee, for the appellant, Tanisha M.
Herbert H. Slatery, III, Attorney General and Reporter; and Kathryn A. Baker, Assistant
Attorney General for the appellee, State of Tennessee Department of Children‟s Services.
OPINION
Background
The Children were removed from Mother‟s custody for the second time in March
of 2012 by order of the Juvenile Court and have been in foster care continuously since
that time. The State of Tennessee Department of Children‟s Services (“DCS”) filed its
petition seeking to terminate Mother‟s parental rights to the Children on January 22,
2015. The case proceeded to trial in May of 2015.
Terrie Delp, the DCS case manager assigned to the Children‟s case, testified at
trial. Ms. Delp has been the case manager on this case since May of 2012. Ms. Delp
explained that the Children being removed from Mother‟s custody and placed in foster
care in March of 2012 was the second time they had entered foster care. The first time
the Children were placed in foster care was in September of 2011 due to allegations of
physical abuse of one of the Children. Ms. Delp testified that the Children ran away from
home and reported that Mother had hit one of the Children several times in the face and
had kicked her. The Children reported that Mother had woken them up around one
o‟clock in the morning because they had failed to clean their room and became upset
because one of the Children had wet the bed.
An initial permanency plan (“Permanency Plan”) for the Children was developed
in October of 2011. Initially, the Children were placed with their maternal grandparents
on a trial home placement. The grandparents, however, violated the court order and
allowed Mother to have unsupervised contact with the Children. Ms. Delp testified that
the Children also reported that grandmother and Mother were “whipping” them during
that time period.
The Children were taken back into foster care in March of 2012. Another
Permanency Plan1 was developed in June of 2012. Ms. Delp testified that Mother‟s
responsibilities were substantially the same each time the Permanency Plan was revised.
Ms. Delp also stated that Mother was present each time the Permanency Plan was
reviewed in the court room.
Under the Permanency Plan, Mother was required to address her mental health
issues and substance abuse issues. Ms. Delp testified that Mother completed a mental
health assessment in April of 2014. DCS paid for that assessment. The
recommendations of Mother‟s mental health assessment were individual therapy,
1
The evidence in the record on appeal shows that although the permanency plan was updated several
times, Mother‟s responsibilities remained essentially the same with each revision. As such, we refer in
this Opinion to the „Permanency Plan‟ in the singular for ease of reading.
2
medication management, and case management. Ms. Delp testified that the individual
therapy was available to Mother because DCS paid for it. Mother began therapy in June
of 2014, but did not complete the therapy. She attended one of three appointments
scheduled in June, attended one in July, failed to attend any appointments in August, and
was discharged in September for noncompliance.
Mother had an A&D assessment in 2012. During that assessment Mother reported
substance abuse issues with marijuana. The assessment recommended individual
therapy, medication management, and random drug screens. Mother did not comply with
these recommendations and did not cease using marijuana. Mother had another
assessment done in June of 2013 with similar results of marijuana dependence and
similar recommendations.
Ms. Delp testified that Mother had a clean drug screen in November of 2012.
DCS started unsupervised visits at that time. Mother then failed a random drug screen in
December. DCS requested the December drug screen because they had planned to give
Mother a week of unsupervised visitation for Christmas. Mother had a clean drug screen
in August of 2014, but Ms. Delp testified that “the drug screen was questionable because
the urine was so clear that - - we couldn‟t get another drug screen after that.” DCS
requested another drug screen approximately five days prior to trial. Mother could not
give a urine screen, so an oral swab was done. Mother told Ms. Delp that she expected
this test to be positive because Mother had smoked marijuana six weeks prior to the test.
Mother did complete a parenting class and had intercept services through Youth
Villages from late 2012 until January of 2015. Mother also has had supervised visitation.
Ms. Delp testified that Mother has not had unsupervised visitation since the fall of 2012
because she has not had a clean drug screen and because DCS still has concerns with her
parenting skills and the way she interacts with the Children. Ms. Delp was asked for
examples, and she stated:
One of the examples is, there was a visit at the park this past summer,
approximately around July 2014, where the worker had to intervene
because mom was cussing and yelling at [the Younger Child]. We‟ve had
visits where mom and the aunt have been very inappropriate, talking about
the foster mom, at that visit referred to [the Older Child‟s] clothing as she
looked like a slut. We‟ve also had visits where mom just doesn‟t interact
very much with [the Younger Child].
Ms. Delp testified that Mother treats the two Children “[v]ery different.” Ms.
Delp stated:
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For example, one visit at the Department, mom was late for the visit, we
were standing in the lobby, I was actually present for that visit. [The
Younger Child] was very excited to see mom, went through the double
doors, held the door open for her. Mom walked right past her to [the Older
Child], hugged [the Older Child], handed [the Older Child] the pizza and
sat down.
We have witnessed that time and time again at the visits. She just
doesn‟t engage [the Younger Child], where she very much engages [the
Older Child] to the point that sometimes [the Younger Child] is standing in
the background waiting for a hug, and it never happens.
When asked how this type of behavior affects the Children, Ms. Delp stated:
The girls‟ behavior over the last several years have [sic] just spiraled out of
control. Sometimes they are stable and sometimes they are just - - I don‟t
know how to describe them. A lot of it revolves around, especially for [the
Younger Child], when mom doesn‟t show for visits or when she doesn‟t
show for CFTMs. We anticipate that the next week at school or in therapy
or even in the foster home that we‟re going to have some form of acting
out, some form of behaviors.
Ms. Delp testified that Mother visits the Children, but not consistently. Ms. Delp
explained:
Since our last court date in February, just because of mom‟s reaction to the
termination petition, we decided that as a team it would be best to have a
set schedule for visitation and to move them back to the DCS office. Visits
are also [every other week] for two hours. Since our last court date in
February, mom‟s either cancelled or no-showed or rescheduled all of the
visits. And what we have right now is she visited twice in February, she
visited once in March, no visits in April, and she did contact me in April
and asked me to change the visits to Saturday after she had cancelled a
visit. And we did work diligently between myself and Youth Villages to
make sure that we scheduled three visits in May on a Saturday. . . . She did
make those visits.
Ms. Delp testified about the last visit in May stating:
The last visit was a little concerning because mom informed both girls that
the fathers‟ rights had been terminated and that they didn‟t care about them
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and they were no longer involved in their life and they never would be a
part of their life. It was very upsetting for [the Younger Child].
Ms. Delp has had contact with both fathers, and she testified that Mother‟s
statements were untrue. Both of the Children‟s biological fathers reside in North
Carolina. Ms. Delp testified about what she did after Mother made the statements to the
Children stating:
What I did is I informed the foster mom, I gave her [the Younger Child‟s]
father‟s contact, and when we or she felt that it was best for [the Younger
Child] to make that contact, we were going to allow that to happen, because
when I made contact with him, he informed me that he wanted to have
contact with her and he wanted to see her, he just wasn‟t in the place that he
could care for her at this point in time.
The Younger Child‟s father has children in Africa, and he is in and out of the country.
Ms. Delp testified that Mother reported that she was working at JFG second shift.
She also stated that Mother has worked in the past. Mother was making child support
payments through May of 2014 on the Older Child and through August of 2013 on the
Younger Child.
Ms. Delp testified that the Children were in a prospective adoptive home, where
they have been for over two years. When asked about behavior problems exhibited by
the Children, Ms. Delp stated: “Behaviors range from being physically aggressive,
verbally aggressive, disruptive at school, aggressive with teachers at school, ran away
one time but just to the neighbor‟s house, was able to locate them rather quickly. They
are just - - they steal, they lie. There‟s a lot.” Ms. Delp testified that despite the behavior
problems the foster mom still wants to keep the Children.
Ms. Delp testified that the behavior problems often appear in conjunction with
something going on with Mother. Ms. Delp testified that at the most recent Child and
Family Team meeting Mother failed to show, and the Younger Child “became very
agitated, was . . . just angry that mom wasn‟t there, and her response was if she don‟t
care, why should I care.” On one occasion when Mother did not participate in visitation
the Younger Child “got in trouble at school, she tore the principal‟s office up, she had
wrote some stuff on the desk, and the school had to call, not only her worker, but [also
the foster mom], trying to get her to deescalate, and the worker finally had to come to the
school to get her on that day.”
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Ms. Delp testified that the Older Child “seems to control her behaviors somewhat
a little better now. But she was asked to leave Austin East High School, she was expelled
there, and they put her in the Richard Yoakley night school program where she has also
been asked to leave just because of the aggressive and disruptive behaviors.”
Ms. Delp testified that Mother claims she has not accomplished her goals because
she lacks funding and insurance. Ms. Delp testified, however, that although DCS
completed referrals for Mother for A&D and has paid for individual counseling, Mother
has not followed through. With regard to why the Children are in foster care, Mother
claims that the Children are not telling the truth about the situation, and she denies that it
happened. Ms. Delp testified that Mother has continuously denied physically abusing the
Children.
Ms. Delp testified that the Younger Child would like to be reunited with Mother.
The Older Child has not expressed the same wish. Ms. Delp testified that the Older Child
has stated that she does not believe that Mother has changed and that she does not feel
she would be safe in Mother‟s house. Ms. Delp testified:
I think as the case manager that‟s been on this case for a very long time,
that these girls need stability and they need permanency. We see very
much when mom is not involved how the behaviors are, and both the girls
have said in the past through therapy, through Youth Villages, to myself
that they just want to know - - they just want something permanent, they
want something stable, they want to konw [sic] where they‟re going to lay
their head at every night.
With regard to Mother‟s responsibilities, Ms. Delp testified that Mother has not
shown a valid driver‟s license, car insurance, or a legal source of transportation; that
Mother needs to complete individual therapy; that Mother needs to demonstrate parenting
skills learned in parenting class; and that Mother needs to have clean drug screens.
Mother was drug screened on September 19, 2014 and the test was positive for THC.
Mother failed to come in for a drug screen in December of 2014. Ms. Delp stated that
Mother reports smoking marijuana because of the Children‟s behaviors. Mother
completed parenting class, but has failed to demonstrate skills during visits. Ms. Delp
testified that Mother does have housing. Ms. Delp testified:
These girls have been through a lot of trauma and a lot of physical abuse,
and to be in visits, for mom to make them cry during visits, make them cry
before court because she‟s downgrading them and telling them they‟re not
doing what they need to do to get home, is not a good situation for these
girls.
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Ms. Delp testified that the rights of the Older Child‟s biological father have been
terminated, and that termination proceedings were pending against the Older Child‟s
legal father. Termination proceedings also were pending against the Younger Child‟s
father.
Ms. Delp testified that the Children are “pretty much stable in the [foster] home.”
She stated that there was one occasion where the Older Child failed to come home one
night for several hours and one occasion where the Younger Child ran away to a
neighbor‟s house, but Ms. Delp stated that the Children were “more stable now than they
ever have been in the foster home.” Ms. Delp testified that the foster mom provides a lot
of structure for the Children. Ms. Delp testified that she does not believe it would be safe
for the Children to be returned to Mother‟s care at this time “[b]ecause we still have the
behaviors with the girls that mom says that she smokes the marijuana for, to control the
stress, because of the girls‟ behaviors.”
Hannah Falls, who works with the Youth Villages Intercept Program doing child
and family therapy in-home and working with transition cases to prepare parents for
children to come home, testified at trial. Ms. Falls worked on this case from March of
2014 through February of 2015. She supervised visits and met with Mother to prepare
for the Children to come home and to help Mother satisfy her requirements under the
Permanency Plan.
Ms. Falls testified that there were times when she was unable to reach Mother to
schedule visitation. When asked how many visits Mother did not have, Ms. Falls stated:
“There were six that were not scheduled due to me not being able to contact her, and then
two were cancelled by her, two were cancelled by the kids and one was cancelled by the
on-call counselor.” Ms. Falls testified that two visits were cancelled because the
Children wouldn‟t come and that for several visits the Older Child refused to come.
Ms. Falls testified that they worked on interaction and redirection when needed
during the visits. When asked if she had observed verbal interactions that were
inappropriate Ms. Falls stated:
Yes. The incident referred to earlier at the park where mom just - - I was
concerned about the way that she addressed the behaviors and it just kind of
- - she was addressing them appropriately, and then she just kind of
snapped, I guess, and just started yelling and cursing at [the Younger
Child].
7
Ms. Falls testified that Mother was “a lot more engaged with [the Older Child]. There
were times when [the Younger Child] was doing things to try to get her attention, and it
was sometimes ignored.”
Ms. Falls testified that she has talked to Mother about her marijuana use and that
they made a relapse prevention plan, but Mother still is using. Mother tells Ms. Falls that
she uses marijuana due to “[s]tress. When the kids were there, stress from the behaviors
and just the stress from not having them once they were gone.” Ms. Falls talked with
Mother about other ways of dealing with stress. When asked if Mother was cooperative
Ms. Falls stated:
Yes. When we were able to meet, she seemed very motivated to make the
changes. We would make lists of the things that she needed to do. The
breakdown would just usually come afterwards, with the follow-through or
consistently meeting so we could check up on the follow through.
The Younger Child, who was twelve years old at that time, testified at trial. She
stated that she loves Mother, and she would want to live with her if she had the choice. If
she cannot go home with Mother, the Younger Child is willing to stay with the foster
mom. The Younger Child explained that the foster mom‟s household includes the foster
mom‟s 14 year old son, 19 year old son, 12 year old niece, and 17 year old nephew plus
herself and her sister, who is 14. The Younger Child testified that she shares a room with
her sister, and they each have their own bed. When asked how the court would know that
the abuse would not happen again if she went back to Mother the Younger Child stated:
“She‟s trying a little bit.”
The Older Child, who was fourteen years old at the time of trial, testified that
during one visit Mother and Mother‟s sister called her “a ho‟ and a slut.” The Older
Child also testified about the night the Children came into custody, and stated that
Mother hit the Younger Child in the mouth with a fist and that Mother hit the Older Child
in the face with a fist. The Older Child was asked how she felt when Mother denied that
this happened, and she stated: “It makes me feel angry because it feels like she‟s saying
that she wants her kids back but she‟s still lying about some things that she could just
apologize for it, would probably be better.” The Older Child testified that she wants to
remain with the foster mom. When asked if she thought it would be dangerous to return
to Mother‟s home, the Older Child stated:
Yes, sometimes I think about it at times when she gets angry, like from the
beginning I think it‟ll be fine because there‟s people around, but once the
people are gone, I feel like she‟s going to get angry at the fact that we lied
or I feel like she‟s going to get angry at the fact that [the Younger Child],
8
she might still wet the bed now, so I feel like she‟ll probably get angry and
stuff that makes Mom, because Mom has a bad temper at times.
When asked how Mother does at the visits, the Older Child stated: “Lately she‟s been
doing pretty good, ‟cause my granny and my uncle have been there, but she‟s been doing
pretty good, but . . . .”
Allison Anderson, a supervisor for foster care at Youth Villages, testified at trial.
Ms. Anderson has worked on this case since November of 2014, and she supervises the
counselor who works one-on-one with each of the Children. Ms. Anderson testified that
she discusses this case weekly with the counselor and others.
When asked what issues Youth Villages is working on with the Children, Ms.
Anderson stated: “We are working on the physical and verbal aggression. [The Younger
Child‟s] physical aggression, her most recent was at school, I believe it was last week,
and she became physically aggressive with three of her teachers. It took three teachers to
calm her down.” Ms. Anderson explained that they are trying to get the Younger Child
an IEP certified for emotional disturbance, which is why she has not been expelled to
date. The Younger Child attends Ridgedale, which is a special school for children with
learning disabilities. Ms. Anderson testified that the Younger Child is smart and receives
grades of A‟s and B‟s, but has behavior problems. She further explained:
The verbal aggression is a lot of name calling. It‟s a lot of racial slurs that
she uses. She will call herself names, she will call her sister names, she
will call, you know, peers and teachers names. Her last incident at school
she said, My [sic] mom is going to come up here and beat you. And that
was right after their visit.
With regard to the Older Child Ms. Anderson testified:
[W]e‟re working on her school behaviors, a lot of just her behaviors that
got her thrown out of Austin East where she was skipping class, just a lot of
defiance toward public figures, authority figures. She wasn‟t going to the
right classes that she was supposed to go to, she was really just disrupting
the classes. And a lot of it is trying to get attention.
Ms. Anderson testified that a time-line of behaviors in relation to visitations was
created, and it has been determined that the behavior problems occur after cancelled visits
or when Mother does not show, or if there are interactions with family members between
visits. Ms. Anderson testified that there is stability during the time periods between
visits. Ms. Anderson stated that “both [of the Children] seek attention, positive or neglect
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[sic], and they‟ve found that the negative attention - - or that negative behaviors get them
attention, so that‟s their go-to behavior when they feel like they‟re not being heard or
getting what they need.” These behaviors occur more at school than at home.
Ms. Anderson testified that the Older Child “said that she wanted to be able to tell
the Judge that she didn‟t want to move home, and she had also said that if she did move
home, she was going to be devious.” Ms. Anderson testified that the Older Child actually
had used the word „devious,‟ and that the child “said that she knew she couldn‟t be good
there and she would try to get out of there as quickly as possible.”
Ms. Anderson testified that Mother and Mother‟s twin sister attended a school
meeting with regard to the Older Child and that both Mother and her sister “were both
yelling. It was - - yes, very chaotic.” When asked what Mother said, Ms. Anderson
testified: “It was just a lot of blaming, saying „you people‟. I don‟t remember specific
remarks, but it was just a lot of hostility about DCS and Youth Villages, what wasn‟t
being done for her.” Ms. Anderson stated that Mother‟s sister “looked at [the Older
Child] and told her that she had demons in her, that she could see the demons, and she
started praying, and then she started, you know, saying, well, I can see why you do this.
It was still the blaming and yelling.” When asked, Ms. Anderson stated that she could
distinguish what Mother said from what Mother‟s twin sister said.
Steven Wilbert, the regional supervisor for Youth Villages Foster Care and
Adoptions, testified. Mr. Wilbert oversees the supervisors and front-line staff to ensure
that children are being taken care of properly. Youth Villages has been providing
services in this case since April 2, 2012, and Mr. Wilbert has been on the case since May
of 2013. Mr. Wilbert testified that he was a clinical supervisor on the case and that he
“sat in group and consult, organized visitation for the girls, responded to some calls and
residual behaviors in visitation and contact with mom.” Youth Villages provides
individual therapy for the Children once a week and also facilitates medical
appointments, provides on-call services, and makes sure the Children‟s needs are being
met. Mr. Wilbert has not worked with Mother.
Youth Villages also responds to calls from the foster mom. Mr. Wilbert stated that
a lot of the calls they get are due to behaviors at school. He stated that they also got a call
when one of the children ran away one night. The calls have been consistent since April
of 2012.
Mr. Wilbert testified that the foster mom has passed the training certified through
Youth Villages and that she attends support groups and fifteen hours of training
certification per year. Mr. Wilbert stated that the foster mom has “been trained for level
three placements, and this entails safety planning, follow through with clinical
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interventions that my staff implement, deescalation [sic] plans, exit way plans,
physiological responses to emotions, subscales, and then behavioral plans, those types of
things.” Mr. Wilbert testified that the foster mom generally is able to handle the Children
without assistance.
The Children were in two other foster homes prior to entering the current one. Mr.
Wilbert testified that they exhibited the same types of behaviors in those foster homes
that they exhibit in the current foster home. When asked if the Children‟s behaviors have
improved, Mr. Wilbert stated:
Yes. . . . [Both Children] still struggle with the deescalation [sic]
techniques. They have - - you know, I‟m not going to say they don‟t have
issues in the home, but the way that they‟re implemented through - - their
deescalation [sic] has improved tremendously in the home setting, they‟ve
really bonded, they have found a bond with their treatment mother, I think
that has spoken to the progress that they‟ve made. They are able to
communicate more their needs, they‟re open in therapy, I think their trust
has increased. So they have shown increased stability in the home setting.
It‟s just wrapping that around with the school. . . . They‟re able to
communicate when they‟re upset and frustrated, they‟re not resorting to
physical aggression every time that they‟re escalated, which that‟s a small
step, but it‟s a big step for them. I think the biggest thing that I‟ve seen the
girls transpire over this case is just their ability to communicate in an
effective way, so that‟s really increased for them.
Mother testified at trial and was asked why the Children were in foster care. She
responded: “Allegations of abuse. . . . They alleged abuse. . . . My children said that I
abused them. . . . They said that I hit them.” When asked what the Children were hit
with Mother stated: “My fist, I guess. I‟ve heard a lot of different stories.” Mother
admitted that the agency in North Carolina was concerned with Mother due to her
marijuana use, and the agency here in Tennessee was involved with Mother for
approximately a year prior to the removal of the Children. Mother stated: “I did spank
[the Older Child] that morning, I spanked her and [the Younger Child] that morning.
They were fighting each other and they was not listening to me, so I did spank them.”
Mother was asked about bruises that the Older Child had on her eye, the left side of her
face, and her left thigh, and she stated:
I do recall that. Just as I told my first counselor, and I‟ve had witnesses on
that, she was outside fighting that evening, just like that day that that
happened with them, she was fighting that evening a little girl that she went
to the building around the corner where I had them going, Christenberry,
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where I stayed at. They went to school there - - well, not really school, but
programs there when they were out of school during the summer. And
that‟s when that occurred, and I was aware of that. I stopped her that
evening for fighting, she was fighting a little girl and a little boy actually in
the streets. Yes.
Mother denied being responsible for any of the Children‟s bruises and denied
whipping the Older Child with a belt. Mother also denied responsibility for the Younger
Child‟s busted lip and bruises on her head. Mother denied hitting or kicking the
Children. Mother was asked about the bruises and injuries the Children had when they
came into custody, and she stated the source was: “Them fighting each other. I did not
do anything to my kids. I did admit I yelled, I screamed, I was upset but they were
fighting already when I stopped them from fighting. I ran upstairs to stop them from
fighting, they was slapping and beating on each other.” Mother denied ever striking the
Children.
Mother was asked if she woke the Children in the middle of the night, and she
stated:
I woke them up - - actually I woke my babies up because we had watched a
movie that night, and I usually check to make sure that their room is
cleaned. I didn‟t that night, I took them at their word. They had been
fighting all day. We sat up a little bit, about close to midnight, and I sent
them to bed. When I went to check, because I was still up, I went to check
on them, I did wake my babies up and I asked them what did I ask them to
do. They told me they were supposed to clean up. I told them - - they was
getting out of the bed, I told them they don‟t have to do it right now, I will
wake them up bright and early at six o‟clock in the morning, is what I told
them, and they can clean the whole house. That‟s exactly what I told them.
And I woke up that morning, they were gone.
When asked again about the night she woke the Children, Mother stated:
I woke them up. Like I said, I watched a movie with them and I didn‟t
check to see if their room was clean, I just took them at their word. Later
on that night when I decided to go to bed, I checked in and the room was
dirty and I woke them up. And I told them that in the morning I was going
to get them up at 6:00 o‟clock in morning and they were going to deep
clean the whole house, top to bottom, and I was just going to sit there and
watch them. I did say that. And I went back to bed.
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When I got up it was like three something, they were up and I put
them back to bed. They was trying to clean up and I told them to lay back
down. I‟d get them up at - - I said get your ass up ‟cause I‟m getting you
up in three hours for you to deep clean. And I woke up and they weren‟t
there.
Mother insisted that the Children had lied when they alleged abuse. Mother
stated:
I didn‟t know all of this was going to happen. That day they had been
physically fist fighting all that day, all that night, and I tried to stop it the
best I could. I asked them not to fight, I asked them to stop it. They
wouldn‟t. I even had a witness at the house with me that broke up their
fights, even told them when they took me downtown to the Justice Center,
the person even told them that he was the one to intervene on the fight, that
I did not. But nobody listens, nobody listened, and here I am today.
Mother testified that she has had problems with the Older Child since the Older
Child was two years old. Mother stated that the Older Child “got kicked out of every
school, very disruptive,” and that this started when the child was in kindergarten. She
stated that the Older Child “has fabricated a lot of lies on me throughout the years, even
before I got to Tennessee. I have even sent her to counseling to understand why. I‟ve
never gotten an answer. They all told me she was normal.” Mother was asked what
kinds of lies the Older Child told, and she stated that the Older Child told people that
Mother did not feed her and that she was starving. Mother also stated that the Older
Child would “cuss out teachers, tell the teachers that I said for her to do it.” Mother
stated that she would
have to constantly fuss and raise my voice with [the Older Child] for not
going to school, doing right, for stealing iPhones, for stealing money, for
stealing wallets, spitting in teachers‟ faces, cutting hair, just anything. And
I guess it kind of rubbed off where when [the Younger Child] started going
to school, doing the same things that I never thought that she would do
because she was a straight A student.
Mother stated that the Younger Child only began acting out in 2010.
Mother was asked if the Children were in foster care because they told lies, and
she stated:
13
Well, I agree with that. If I could take that day back, I would, but I can‟t. I
did not - - I just wish I had paid better close attention to them, not let them
fight each other, because I didn‟t put my hands on my children that day. I
tell the same story I‟ve been telling for four years. My story has never
changed, and it never will.
Mother was asked why the Children still were in foster care, and she stated:
That has a lot somewhat to do with me, and my ways, of my dependency,
when I was on marijuana. But I don‟t completely fault all of that to myself
either. I had a late start, like I said, with my case. My kids was in custody
over a year before DCS even paid me any attention, even got me parenting
classes, even got me anything that I needed.
I remember my first court case, the Judge ordered random drug tests
every week. Never saw a case worker for a year. Like I said, I did
complete the parenting classes. A year after they was in custody is when
they sent me, I did complete that. A lot of the times, like when I went to
therapy, I asked them if they would give me group therapy with my
children. They did after a year and a half, they did.
And with that, my kids told the counselor that, you know, they felt
bad for lying on me, and the counselor did look me in my face and said
some ridiculous things to be a counselor towards me, and after that one day,
I never even went back to counseling with my children or anything.
I do the best that I can, and to me every 14 days for two hours, how
can you express what you have learned in counseling when you don‟t have
the time? I do the best I can. I just want my children to learn not to lie so
much; lies are costly. And it‟s been hard on me for four years, it really has,
and I‟m sure just as much as it‟s been hard on them. I don‟t take them out
of the equation. I know this has been hard on them. It‟s been hard on me
as well.
Mother testified that the last time she used marijuana was “about six weeks” prior
to trial. Mother admitted that over two years prior to trial, in February of 2013, the court
found that she needed to stop using marijuana, complete the recommended treatment,
pass drug screens, and develop an alternate method of coping with disappointment.
Mother then stated that the court also “issued weekly drug tests that DCS never did.”
Mother was told that the order from February of 2013 said nothing about weekly drug
tests. Mother then stated: “It was, he ordered random drug tests. My very first court date
14
he ordered random drug tests.” Mother then was reminded that her first court date was
years prior to February of 2013, and she stated:
I know. What I‟m saying is we all have a part in this. I accept my flaws. I
have been clean at times, a lot of times, but I was never getting tested then.
So I can‟t speak on that because that would be irrelevant. I have had my
moments, like I say, a lot of the times when my children - - well, it was
never both my kids, just one usually refused visits or I had family things
going on.
My last incident from my counseling was because I had to go to
North Carolina because my aunt died. She recently passed and we was up
and down the road actually six months of that time. Now that everything is
out of the way, I‟m okay, you know, I just want my counseling back, which
I‟ve talked with Terrie, Solution Source does not offer medication, so could
you change that. I will have go to back to Helen Ross McNabb because
Solution Source does not offer medicine.
An order entered in February 2014 found that Mother continued to use marijuana,
failed the drug screen at court, and had been missing visits which was upsetting to the
Children. An order entered in January of 2015 found that Mother continued to use
marijuana, had been discharged from treatment for noncompliance, and was visiting only
sporadically. Mother was asked about the fact that she still was using marijuana, and she
stated:
Because then I was using - - in the beginning I was using marijuana a lot.
My marijuana use has slowed up. It just so happened that I might at the
time have been, in the past, smoking, then two weeks later there comes a
drug test. Well, I haven‟t done that for nine months, I don‟t hear or see
neither one of you.
When asked why the Older Child did not want to visit with her, Mother stated:
Sometimes I‟ve noticed that when [the Older Child] does something wrong
or she doesn‟t want to hear my mouth, she won‟t. I feel like when you give
kids the right to do what they want at a young age, they‟re going to do that.
If you tell a child, oh, you will have to go to this, what do think [sic] they‟re
going to do? They‟re not going to do it.
So I feel like it‟s wrong to tell a child that it‟s okay to not visit
because I can‟t get that time back. Four years is already gone, and it makes
15
me feel worse everyday because what can I do? I try the best I can do. I
don‟t know all the time about [the Older Child‟s] visits. Like I said, she
hasn‟t always had one of those moments. I try, I try to reach out to her to
see exactly where did I go wrong at. And, like I say, I hear different things
every time.
You all tell me she don‟t want to come home. That‟s not what she
was saying on Saturdays [sic] visits, so I can‟t - - like I say, if those ain‟t
lies, I don‟t know what is. She tells you one thing. I can‟t prove she said it
or didn‟t say, just like you can‟t prove if she said thing to me that she did or
didn‟t say. She tells me she wants to come home, but she still would like to
visit with [the foster mom]. But here in the courtroom you‟re telling me
she says she don‟t want to come. So like I said, I don‟t know what to
believe because when she sees me is one story, when she sees you all it‟s
another.
Mother insisted that she never told her daughter that she was dressed like a slut or
a whore. Mother stated that her twin sister did that and that Mother defended her child
and the foster mom. Mother stated:
I don‟t know what prompted her to talk to [the Older Child] like that but I
did defend my child and [the foster mom]. I told my sister that I don‟t care
what she might‟ve heard about [the foster mom], I had never heard
anything bad about [the foster mom]. I liked her. I told her not to talk to
my child. It actually became an argument between me and my sister after
we left that visit. My sister hasn‟t visited any more since then.
Mother admitted that she thinks the foster mom is “a God send,” and that she thinks the
Children are being treated well by the foster mom.
Mother testified that she was employed at JFG working second shift and had been
for approximately a month and a half. Mother testified that prior to that, Mother worked
at McDonald‟s for over two years.
Mother insisted everything now was different. When asked what was different
Mother stated:
What you have to realize is this, it was a whole big issue, you can‟t see that,
you only see me when you come to court. It‟s a whole bigger issues than
what it used to be in the beginning. I used to smoke all the time, all the
time, all the time. I don‟t do that anymore. Yes, there are moments where
16
marijuana is still in my system, but it‟s not like it was. I couldn‟t do
nothing, I couldn‟t function unless I had some marijuana, and I can do that
now, I guess a lot that I can do. It‟s just that I don‟t have the time to
display it, I can‟t show you everything in two hours.
My home is loving, I care about my kids, I‟m a totally different
person. I just want to be able to show my kids that I‟m a good person, I‟m
a good mother. I felt like I was taken for granted because a lot of issues
came from basically when I couldn‟t buy them what they wanted. They
always want cell phones. I couldn‟t buy a cell phone, they‟d go out and
steal one. I can‟t give you an extra $20 this week, they‟d go out and steal
it. So, I mean, I‟m just hoping that some of those issues that they have had
has subsided also.
When asked how things would be different now, Mother stated: “It would be a lot
different. I have a lot of love to give.” Mother then was asked if that was different, and
she stated:
Yes, a lot of – I‟ve learned how to cope during my process of through my
hurt, through my rejection, I‟ve learned how to talk better with my children.
I‟ve learned how to accept things, how to come to terms with things. I‟ve
accepted and learned a lot during my therapy sessions and I feel like I
would be a better mom. I was never a bad mom but there‟s a lot that I have
learned through this work in process and that‟s a lot. And one thing that
I‟ve overall learned was patience. . . . I was dealing with a lot with the
kids. I had to learn patience on their understanding, their needs, just a lot
of, you know, conversation, understanding where they were coming from.
Some things that you might just push to the side, you know, you listen to
them. It goes to pass, I‟ve learned how to savor every word, understand
better because I had to be alone for four years. So I have learned a lot of
patience.
Mother was asked if she saw a difference in the Children‟s behavior, and she stated that
she had “noticed maturity in my children.”
Mother was asked what she thought she still had to do, and she stated:
I still have to be strong when it comes down to temptation of marijuana at
times. I feel I have to be stronger for my children, which I think I have.
It‟s always, as long as your kids there [sic], there‟s always strength and to
17
better yourself and I‟m willing to continue - - to continue to better myself.
I don‟t want to give up and I‟m not going to.
Even when they come home, if and when they come home, I‟m still
going to continue therapy, I‟m still going to keep trying to better myself,
I‟m still going to keep bettering myself as a mother for them. I‟m not going
to quit.
Mother testified that she believed she had “completed everything on what I was supposed
to be doing except for that every now and then, marijuana use.” Mother admitted that the
drug test done on May 15, 2015 was positive for marijuana. Mother was asked why the
Children remained in foster care, and she stated it was because of her marijuana use.
Mother was asked if that was the only reason, and she stated:
To me, yeah. I tried to do everything that I know to do. Like I said, I have
services and they got stopped. All this has not just been my fault. I take
my responsibility in the things that I have done. And I think that I have
done a lot to prove to myself and to my kids, I have done right things
regardless of what some downfalls may look like, I feel like I have done
good.
The Children‟s foster mom (“Foster Mom”) testified that the Children have lived
with her since November 5, 2012. Foster Mom‟s household consists of her, her son who
is 14 years old, her nephew who is 17 years old, her niece who is 12 years old, and the
Children. Foster Mom testified that her niece and nephew‟s mother died, so they live
with her.
Foster Mom was asked if the Children‟s behavior has changed, and she stated:
“Not much. But the fighting has gotten a little better, but other than the other behaviors,
we‟re still working on that but it‟s still - - the behaviors are still there.” Foster Mom
testified that the Children told her they had lied about the night they came into custody,
and she made them tell the therapist. She stated that they told her that Mother “did bust
[the Younger Child‟s] lip, but that everything else was a lie.”
Foster Mom testified that the Older Child got kicked out of high school for failing
to attend class and then got kicked out of alternative school for not following school
rules. The school did not tell Foster Mom which rules the Older Child failed to follow.
Foster Mom testified that the Younger Child has been put on an S-team, which means
that the school is dealing with her rather than suspending her or sending her to alternative
school. Foster Mom testified:
18
She just recently - - she told me that another student had spit in her face and
so she was going to fight this student and it was three teachers who were
trying to control her, you know, stop her from fighting, well, she fought all
three teachers. She had blood on her shirt that she had drawn blood on the
teacher where she was scratching them, fighting them, just do whatever to
try to get to the little girl and, you know, basically they said they were just
going to deal with it basically.
Foster Mom testified that the Children still fight at home. She stated that they
would fight and the Older Child would pull out chunks of the Younger Child‟s hair
leaving “like bald spots in her head,” and that she did this about a month prior to trial.
Foster Mom stated, however, that “it used to be every day where I could intervene with a
fight, now it‟s maybe twice a month.” Foster Mom testified that the Younger Child still
wets the bed.
Foster Mom was asked if she wanted to adopt the Children, and she stated: “If
they don‟t get to go home with Mom, then I will. But I feel like, you know, if Mom is
willing to take her kids and if they want to go home, I want them to have that
relationship.” Foster Mom testified that she and Mother have been working together to
deal with some of the discipline issues. Foster Mom was asked if she would continue to
help if the Children were returned to Mother‟s custody, and she stated: “She can call me
any time, and like if she need a break, she can say hey, can you watch these girls or can
they stay overnight, and I‟d say I‟m on my way, so yeah, definitely.”
After trial the Juvenile Court entered its detailed order on June 23, 2015
terminating Mother‟s parental rights to the Children after finding and holding, inter alia:
From all of the above and the entire record, the Court finds the following
by clear and convincing evidence.
I
1. [The Younger Child] was born out of wedlock to [Mother] . . . in . . .
2003. [The Older Child] was born out of wedlock to [Mother] . . . in . . . 2000. . .
. The temporary custody of these children was awarded to the State of
Tennessee, Department of Children's Services, for the second time on May 29,
2012, by order of the Juvenile Court of Knox County, Tennessee; they have
been in foster care continuously since that date. The termination petition was
filed against [Mother] on January 22, 2015.
19
II
1. The children were removed from [Mother‟s] custody due to physical
abuse. [Mother] and the children had watched a movie together, after the
girls had told their mother they had cleaned their room, and then the girls
went to bed. [Mother] became angry when she checked on her children later
and discovered that they had failed to clean their room and that [the Younger
Child] (then 8) had not changed her sheets after wetting her bed the night
before. [Mother] woke the children after midnight and a verbal altercation
escalated into a physical assault, where [Mother] hit both of her children with
her fists and “busted” [the Younger Child‟s] lip. The children ran from the
home after this particular incident. They were located by law enforcement
and refused to return. Injuries to [the Younger Child‟s] face were
documented. The children also reported previous incidents of being whipped
with a belt and the Department of Children‟s Services had previously
investigated such reports, had observed marks on [the Older Child‟s] face and
thighs, and had placed intervention services in the home, apparently without
success. [The Older Child] reported that her mother had threatened her with a
broom stick in the past, held the stick across her throat, and told her to „fight
her like a grown woman‟. When interviewed by the Department of
Children‟s Services, [Mother] admitted waking her children at 1:00 AM and
talking to them about cleaning their room, behavior at school, and other issues
from the past. She denied any discussion about wetting the bed, denied any
physical assault, and denied touching the children or using a belt in the past
year, saying she had been told that physical discipline was wrong. The belt
was found draped over a kitchen chair; a relative in the home overhead [sic] the
fight and confirmed the children‟s report of what was discussed. Although
denying the children‟s specific allegations, [Mother] stated that she had been
under a great deal of stress; that she had difficulty managing the children‟s
behavior; and that she had started using marijuana again.
2. Upon their removal from [Mother‟s] custody, the children were
placed immediately in kinship foster care with their maternal grandparents and
full legal and physical custody was released to the grandparents by order of this
Court on March 6, 2012. That placement lasted only a few more weeks. The
grandparents allowed the girls to return to live with their mother before the ink
was dry on the order despite the requirement that she have only supervised
visitation. Grandmother admitted that she, too, had been whipping the
children because they needed to learn how to respect their elders. She knew
that her daughter was continuing to use marijuana and [Mother] admitted that
she was still under stress and still using. [The Older Child] reported that her
20
mother was not ready for them as she did not know how to talk without yelling
and was lazy. The children returned to foster care.
3. The initial permanency plan was developed at a Child & Family Team
Meeting on October 7, 2011, with [Mother‟s] presence and participation.
Among other things, the plan required that [Mother] (a) complete a mental
health assessment, follow resulting recommendations, and take medication only
as prescribed; (b) complete an alcohol and drug assessment, follow resulting
recommendations, and pass random drug screens to demonstrate sobriety; (c)
and complete a series of age-appropriate parenting classes, learn appropriate
discipline techniques, and demonstrate learned skills during visitation. She
was also expected to visit regularly and to pay child support. Those
responsibilities have remained essentially unchanged to the present despite
periodic revisions of the plan.
4. [Mother] continues to deny that she ever abused her children. Her
explanation for their removal into foster care was that they fabricated lies. She
reported that she had experienced difficulty with [the Older Child] beginning
when that child was 2 (when she was terrorizing other children in preschool)
and had tried to get help for her, first in North Carolina and then in Tennessee,
since that time. [The Younger Child] had not been problematic until 2010 but
then started taking after [the Older Child]. From the time [the Older Child] was
5 and [the Younger Child] was 3 the girls have been physical [sic] aggressive
toward each other, fighting each other, slapping and beating on each other. She
testified they had been fighting all day on the day of the incident leading to
their removal. She admitted that she had awakened them to warn them that in
the morning they would have to clean the whole house and then discovered at
6:00 AM that they were gone. As to the documented injuries, she claimed that
the girls had hurt each other.
5. [Mother] insists that there is no reason for her children to still be in
foster care. If she had them today, she could clothe and feed them and get
them to their appointments, she could meet their needs. She has had
appropriate housing and a job. On the other hand, she has not made even a
token child support payment since August 2014. She claims she has
completed everything and has been ready for years. She could not, however,
explain what would be different now. She stated that she loves her children
and is lost without them but there is only so much she can do. She believes
they need family therapy.
6. [Mother] has a lengthy history of reliance on marijuana and testified
that she still has a strong temptation to use. She has completed several alcohol
and drug assessments with recommendations that she participate in individual
counseling and medication management to learn coping skills other than
turning to marijuana. The most recent assessment was completed at The
21
Solution Source in April 2014 with the same recommendations. Those services
were available to her through The Solution Source. [Mother] began therapy
there at the Department‟s expense in June 2014. She attended one
appointment in June and one appointment in July; she was then discharged for
non-compliance (failing to attend) in September 2014. Her drug screens have
been consistently dirty for marijuana. Her most recent hair follicle test,
collected on May 15, 2015, was again positive for marijuana as was the swab
test conducted on May 22, 2015. She testified that she had used marijuana a
lot in the beginning but had now “slowed down”. She explained that she had
not completed counseling because her aunt was dying in North Carolina but is
ready to begin again and has asked the children‟s case manager for a new
referral.
7. [Mother] completed Common Sense Parenting classes at the
Department‟s expense. She has not, however, demonstrated learned skills or
a substantial change in her behavior during visits with her daughters. The
Youth Villages supervisor has had to intervene due to [Mother] ignoring
personal space and cursing her children. Her visits have not been consistent;
she has missed about one-third of those visits. During visits she has clearly
favored [the Older Child], ignoring [the Younger Child‟s] attempts to gain her
attention. Several times the children have refused to see her. An attempt at
family therapy was unsuccessful as it quickly deteriorated.
8. [The Younger Child] testified sitting on her mother‟s lap. She told
this Court that she was “pretty mad” at her mother for not showing up at visits
consistently and for not showing up at a recent Child & Family Team Meeting
but still wants to go home. When asked how the Court could be sure “it won‟t
happen again”, [the Younger Child] replied that “she‟s trying a little bit.” She
did not recant the allegations of physical abuse despite wanting to go home.
9. [The Older Child], on the other hand, was clear that she does not
want to return to her mother‟s care, does not want to visit, and wants to be
adopted. When asked if it would be safe for [the Younger Child] to return
home even if [the Older Child] does not, she replied that it would not be
safe because [the Younger Child] still wets the bed. She acknowledged that
her foster mother had encouraged her to give her mother a second chance
and she had done so, but related an incident of name-calling by her mother
(“called me a whore”) and expressed her feeling that her mother doesn‟t
care.
10. The children continue to have serious behavior problems. They
seek attention and negative behavior is their way to get it. Both children
testified that they still have arguments but are doing better, learning not to
fight. On the other hand, their foster mother‟s report was not encouraging.
The girls continue to fight with each other, though not as much - perhaps
22
twice a month instead of every day. They pulled each other‟s hair out a
month ago. They get into fights at school. [The Older Child] just stopped
going to class and was kicked out of Austin East. She was then kicked out
of Richard Yoakely for not following the rules. Exactly what was at issue
has not been determined. [The Younger Child] was described as “not good
at all at school”. She recently got into a fight with another girl who had spit
in her face. While trying to get at that girl she involved 3 teachers and drew
blood.
11. Upon these facts, the Court finds that [Mother] has abandoned
these children in that [Mother] has willfully failed to support or make
reasonable payments toward the support of the children for four (4)
consecutive months immediately preceding the filing of the petition in this
cause. She was working, she had the ability, she had a previous history of
compliance. She just stopped.
12. The Court further finds that [Mother] has failed to comply in a
substantial manner with those reasonable responsibilities set out in the
permanency plan related to remedying the conditions which necessitate
foster care placement. Her responsibilities have been essentially the same for
more than three years. She has been offered a bevy of services but has not
completed any. Instead of keeping her appointments, continuing on her
medication, going to therapy, she‟s smoking marijuana. Her responsibilities
were not difficult: go to therapy, quit smoking marijuana, pay child support.
She didn‟t do it. She was discharged from therapy for non-compliance last
September after attending only two appointments and has now asked for a new
referral. She doesn‟t get unlimited chances.
13. These are still difficult children. The history shows that they have
been difficult since they were small, too difficult for their mother to handle.
She has not taken advantage of the services designed to assist her in
developing the skills necessary to care for them. And she has not taken any
responsibility for her behavior, for her role in their removal or for her failure to
complete the permanency plan; everything is somebody else‟s fault. As a
result of her noncompliance, the Court finds that the children have been
removed by order of this Court for a period of six (6) months; the conditions
which led to their removal still persist; other conditions persist which in all
probability would cause the children to be subjected to further abuse and
neglect and which, therefore, prevent the children‟s return to the care of
[Mother]; there is little likelihood that these conditions will be remedied at an
early date so that these children can be returned to [Mother] in the near future;
the continuation of the legal parent and child relationship greatly diminishes
the children‟s chances of early integration into a stable and permanent home.
23
III
1. [Mother] has not made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the children‟s best interest to be
in her home despite reasonable efforts by available social services agencies for
such duration of time that lasting adjustment does not reasonably appear
possible. She is not there yet, maybe not ever. According to her own
testimony, she has been trying without success since [the Older Child] was
two. [Mother] has missed about one-third of her recent visits. She brought
her sister with her, creating an incident. She has been difficult to contact.
And she did not appear to participate in the most recent Child & Family
Team Meeting. The children do have a meaningful relationship with their
mother. The Court does believe that that [sic] [Mother] has shown brutality
and physical abuse neglect toward these children. The Court can see how
she may have been pushed to “popping” one, but not with a fist and not in
the face, that cannot be condoned. [Mother] continues to self-medicate
with marijuana. That is a poor and illegal substitute for the medication she
is supposed to be on. She is not mentally healthy enough herself to take
care of troubled children. And she has not paid child support.
2. Termination proceedings are pending against the children‟s
respective fathers.
3. The Department of Children‟s Services has made reasonable
efforts toward achieving permanency for these children.
4. The children are entitled to a safe, secure and loving home. Their
foster mother testified that she will adopt them if they can‟t go home. [The
Older Child] wants to be adopted there. [The Younger Child] wants to go
home but would be happy being adopted by her foster mother if home is not
an option. Determining the best interest of children is a lot harder when
they are not doing well in their placement. These children are not. The
Court urges the Department of Children‟s Services to convene a Child &
Family Team Meeting immediately to address the viability of this
placement. Their mother loves these children but cannot meet their needs.
Their current foster mother loves them as well but it is not clear to the
Court that she is meeting their needs either.
5. It is, therefore, in the best interest of [the Children] and the public
that all of [Mother‟s] parental rights to these children be terminated and the
complete custody, control, and partial guardianship of the children be
awarded to the State of Tennessee, Department of Children‟s Services, with
the right to place them for adoption and to consent to such adoption in loco
parentis.
24
Mother appeals the termination of her parental rights to the Children to this Court.
Discussion
Although not stated exactly as such, Mother raises four issues on appeal: 1)
whether the Juvenile Court erred in finding that clear and convincing evidence was
proven of grounds to terminate Mother‟s parental rights pursuant to Tenn. Code Ann. §
36-1-113(g)(1) for abandonment by willful failure to pay child support; 2) whether the
Juvenile Court erred in finding that clear and convincing evidence was proven of grounds
to terminate Mother‟s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2) for
substantial noncompliance with the permanency plan; 3) whether the Juvenile Court erred
in finding that clear and convincing evidence was proven of grounds to terminate
Mother‟s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent
conditions; and, 4) whether the Juvenile Court erred in finding that clear and convincing
evidence was proven that it was in the Children‟s best interest for Mother‟s parental
rights to be terminated.
Our Supreme Court recently reiterated the standard of review for cases involving
termination of parental rights stating:
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 (2000); Stanley v. Illinois, 405 U.S. 645, 651
(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 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
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.”
25
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759. “Few consequences of judicial action are so
grave as the severance of natural family ties.” Id. at 787; see also M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996). The parental rights at stake are “far
more precious than any property right.” Santosky, 455 U.S. at 758-59.
Termination of parental rights has the legal effect of reducing the parent to
the role of a complete stranger and of “severing forever all legal rights and
obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-
1-113(l)(1); see also Santosky, 455 U.S. at 759 (recognizing that a decision
terminating parental rights is “final and irrevocable”). In light of the
interests and consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
U.S. at 754; see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C.,
452 U.S. 18, 27 (1981) (discussing the due process right of parents to
fundamentally fair procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).
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
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(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 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 act 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
3
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
4
Tenn. Code Ann. § 36-1-113(i).
27
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 at
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., No. M2014-00453-SC-R11-PT, 2016 WL 363993, ___ S.W.3d ___
(Tenn. Jan. 29, 2016) (footnotes in original but renumbered).
We first consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven of grounds to terminate Mother‟s parental rights
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) for abandonment by willful failure to pay
child support. As pertinent, Tenn. Code Ann. § 36-1-113(g)(1) provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and non-exclusive, so that listing conditions, acts or
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omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
Tenn. Code Ann. § 36-1-113(g)(1) (2014). In pertinent part, Tenn. Code Ann. § 36-1-
102 provides:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the a
[sic] parent or parents or a guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
a [sic] parent or parents or a guardian or guardians either have willfully
failed to visit or have willfully failed to support or have willfully failed to
make reasonable payments toward the support of the child;
Tenn. Code Ann. § 36-1-102(1)(A)(i) (2014).
With regard to this issue the Juvenile Court specifically found, inter alia:
[Mother] insists that there is no reason for her children to still be in foster care.
If she had them today, she could clothe and feed them and get them to their
appointments, she could meet their needs. She has had appropriate housing
and a job. On the other hand, she has not made even a token child support
payment since August 2014.
***
[T]he Court finds that [Mother] has abandoned these children in that
[Mother] has willfully failed to support or make reasonable payments
toward the support of the children for four (4) consecutive months
immediately preceding the filing of the petition in this cause. She was
working, she had the ability, she had a previous history of compliance. She
just stopped.
29
The evidence in the record on appeal as discussed more fully above does not
preponderate against these findings made by the Juvenile Court by clear and convincing
evidence. We find no error in the Juvenile Court‟s determination that grounds were
proven to terminate Mother‟s parental rights to the Children for willful failure to pay
child support.
We next consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven of grounds to terminate Mother‟s parental rights
pursuant to Tenn. Code Ann. § 36-1-113(g)(2) for substantial noncompliance with the
Permanency Plan. As pertinent, Tenn. Code Ann. § 36-1-113(g)(2) provides:
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4;
Tenn. Code Ann. § 36-1-113(g)(2) (2014).
With regard to this issue, the Juvenile Court specifically found, inter alia:
The Court further finds that [Mother] has failed to comply in a
substantial manner with those reasonable responsibilities set out in the
permanency plan related to remedying the conditions which necessitate
foster care placement. Her responsibilities have been essentially the same for
more than three years. She has been offered a bevy of services but has not
completed any. Instead of keeping her appointments, continuing on her
medication, going to therapy, she‟s smoking marijuana. Her responsibilities
were not difficult: go to therapy, quit smoking marijuana, pay child support.
She didn‟t do it. She was discharged from therapy for non-compliance last
September after attending only two appointments and has now asked for a new
referral. She doesn‟t get unlimited chances.
The evidence in the record on appeal, as discussed more fully above, shows that,
among other things, Mother was discharged from therapy for noncompliance, that despite
attending parenting classes Mother has failed to demonstrate appropriate parenting skills,
that Mother continues to deny abusing the Children, and that Mother continues to use
marijuana. The evidence in the record on appeal does not preponderate against the
Juvenile Court‟s findings made by clear and convincing evidence that grounds were
proven to terminate Mother‟s parental rights for substantial noncompliance with the
Permanency Plan.
30
Next, we consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven of grounds to terminate Mother‟s parental rights
pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions. As pertinent to
this issue, Tenn. Code Ann. § 36-1-113(g)(3) provides:
(3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child‟s removal or other conditions that in
all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child‟s safe return to the
care of the a [sic] parent or parents or a 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 a [sic] parent or
parents or a 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;
Tenn. Code Ann. § 36-1-113(g)(3) (2014).
With regard to this issue the Juvenile Court specifically found, inter alia;
These are still difficult children. The history shows that they have been
difficult since they were small, too difficult for their mother to handle. She has
not taken advantage of the services designed to assist her in developing the
skills necessary to care for them. And she has not taken any responsibility for
her behavior, for her role in their removal or for her failure to complete the
permanency plan; everything is somebody else‟s fault. As a result of her non-
compliance, the Court finds that the children have been removed by order of
this Court for a period of six (6) months; the conditions which led to their
removal still persist; other conditions persist which in all probability would
cause the children to be subjected to further abuse and neglect and which,
therefore, prevent the children‟s return to the care of [Mother]; there is little
likelihood that these conditions will be remedied at an early date so that these
children can be returned to [Mother] in the near future; the continuation of the
legal parent and child relationship greatly diminishes the children‟s chances of
early integration into a stable and permanent home.
We need not reiterate the evidence in the record on appeal with regard to this issue
as it is discussed fully above. The conditions that led to the Children‟s removal from
31
Mother‟s custody still remain. Mother refuses to take responsibility for her own actions
and she continues to use marijuana. The evidence in the record on appeal does not
preponderate against the Juvenile Court‟s finding by clear and convincing evidence that
grounds were proven to terminate Mother‟s parental rights for persistent conditions.
Finally, we consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that it was in the Children‟s best interest for Mother‟s
parental rights to be terminated. When making a best interest determination a trial court
shall consider the non-exclusive list of factors contained in Tenn. Code Ann. § 36-1-
113(i). With regard to this issue, the Juvenile Court specifically found:
[Mother] has not made such an adjustment of circumstance, conduct, or
conditions as to make it safe and in the children‟s best interest to be in her
home despite reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible.
She is not there yet, maybe not ever. According to her own testimony, she has
been trying without success since [the Older Child] was two. [Mother] has
missed about one-third of her recent visits. She brought her sister with her,
creating an incident. She has been difficult to contact. And she did not
appear to participate in the most recent Child & Family Team Meeting.
The children do have a meaningful relationship with their mother. The
Court does believe that that [sic] [Mother] has shown brutality and physical
abuse neglect toward these children. The Court can see how she may have
been pushed to “popping” one, but not with a fist and not in the face, that
cannot be condoned. [Mother] continues to self-medicate with marijuana.
That is a poor and illegal substitute for the medication she is supposed to be
on. She is not mentally healthy enough herself to take care of troubled
children. And she has not paid child support.
Our review of the record on appeal reveals that the Juvenile Court considered all
of the relevant factors when making its determination regarding the best interest of the
Children. The evidence in the record on appeal does not preponderate against the
Juvenile Court‟s finding by clear and convincing evidence that the termination of
Mother‟s parental rights is in the best interest of the Children.
As grounds for terminating Mother‟s parental rights to the Children were proven
by clear and convincing evidence, and it was proven by clear and convincing evidence
that termination of Mother‟s parental rights is in the Children‟s best interest, we find no
error in the Juvenile Court‟s June 23, 2015 order terminating Mother‟s parental rights to
the Children.
32
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the appellant, Tanisha M.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
33