In Re: Kiara S. ( 2018 )

12/20/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 1, 2018
IN RE KIARA S. ET AL
Appeal from the Juvenile Court for Cocke County
No. TPR-05771 Brad Lewis Davidson, Judge
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No. E2018-01131-COA-R3-PT
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The trial court entered an order terminating Father’s parental rights to his two minor
children based upon the statutory grounds of abandonment by willful failure to visit,
abandonment by willful failure to support, and persistence of conditions, as well as a
finding that termination was in both children’s best interest. From this order, Father
appeals. We affirm the trial court’s findings as to the grounds of willful failure to visit
and willful failure to support, but reverse the finding that clear and convincing evidence
supports termination based upon the statutory ground of persistence of conditions.
Because we conclude that termination is in the children’s best interest, we affirm the
termination of Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part; and Reversed in Part
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.
Brett A. Cole, Seymour, Tennessee, for the appellant, Carmen S.
Herbert H. Slatery, III, Attorney General and Reporter; Erin A. Shackelford, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.
OPINION
Background
This is a termination of parental rights case. The children at issue, Kiara S. and
Kyle S., are the children of unmarried parents Carmen S. (“Father”) and Scarlett B.
(“Mother”).1 Kiara was born in May of 2015, and Kyle was born in January of 2017. The
Tennessee Department of Children’s Services (“DCS”) became involved with the
children shortly after Kyle’s birth, as DCS received a referral that Kyle was born with
neonatal abstinence syndrome (“NAS”), meaning that Kyle was exposed to drugs in
utero. Thus, shortly after Kyle’s birth, DCS visited Father’s home to check on the
children.2 This visit prompted concerns about the living conditions within the home,
which DCS reported were “deplorable.” Moreover, DCS was concerned about Mother’s
presence in the home, as Kiara had already been removed from Mother’s custody and
placed with Father in 2015; Mother was not allowed to be present in the home or
exercising unsupervised time with Kiara. DCS met with Father on January 11, 2017 to
discuss the changes necessary for the home to be made appropriately safe and clean for
the children.
On January 24, 2017, DCS returned to Father’s home and found it unimproved.
The caseworker who made the visit reported that the home had a strong odor of
marijuana, was extremely dirty, and that there was exposed wiring and insulation in the
baby’s room. Mother was also still present in the home. DCS administered drug tests to
all of the adults living in the home, including Father and his parents, and all tests were
positive for marijuana. Mother also tested positive for oxycodone. As such, DCS filed a
petition for emergency custody of the children that was granted on January 25, 2017. The
children were placed with their foster parents at that time, and have remained in that
placement since.3
The trial court adjudicated the children dependent and neglected on March 2,
2017. In its order, the trial court found that Kyle was the victim of severe abuse due his
NAS diagnosis. See Tenn. Code Ann. § 37-1-102(b)(21) (“‘Severe child abuse’ means
[t]he knowing exposure of a child to or the knowing failure to protect a child from abuse
or neglect that is likely to cause serious bodily injury or death.”). Although it declined to
find that Kiara was the victim of severe abuse, the trial court did note that Kiara’s teeth
were rotted and turning black, and also cited the poor living conditions in Father’s home
as reported by DCS. The trial court’s order also noted that Mother’s presence in Father’s
home was in direct contravention of a 2015 court order.4
A permanency plan was developed on February 2, 2017. The plan required that
Father (1) attend parenting classes and provide proof of completion to DCS; (2) obtain
1
In cases involving termination of parental rights, it is the policy of this Court to remove the
names of minor children and other parties in order to protect their identities.
2
As discussed in detail infra, only Father filed a brief in this case. As such, we recite the facts
only as they pertain to Father.
3
Kiara and Kyle’s older half-siblings also reside with these foster parents.
4
The details of the 2015 order prohibiting Mother from living in the home with Kiara are unclear.
All that we can discern from the record is that at some point in 2015, Kiara was removed from Mother’s
custody and placed with Father, and Mother was ordered to leave Father’s home.
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and maintain a legal source of income and provide proof to DCS; (3) maintain contact
with DCS at least twice a month; (4) resolve safety risks in the home, and allow DCS to
do random walk-throughs; (5) attend anger management, follow all recommendations,
and provide proof of completion to DCS; (6) attend a mental health assessment, follow
all recommendations, and provide proof to DCS; (7) attend an alcohol and drug
assessment and follow all recommendations, and provide proof to DCS; and (8) submit to
random drug screens. The original goal of the permanency plan was return to parent, and
the plan was ratified by the trial court July 13, 2017. The parents were allocated two
supervised visits per month, and the ratification order indicated that the parents would be
allowed unsupervised visitation upon providing proof of completion of training for
Kyle’s specialized breathing treatment.5
It is undisputed that after the entry of the first permanency plan, 6 Father visited the
children several times and would talk on the phone with them regularly. However, the
family’s DCS caseworker, Katie Ferguson, filed an affidavit of continuing reasonable
efforts on August 23, 2017, opining that she was experiencing great difficulty in working
with Father. According to Ms. Ferguson, it was difficult to discern what progress Father
was making on his plan because Father was argumentative and hostile towards Ms.
Ferguson, and because Ms. Ferguson felt that Father was being dishonest about
completing the steps in the plan as well as regarding his search for employment. Ms.
Ferguson noted that Father was discharged from his anger management program for
noncompliance and that while Father indeed completed parenting classes, he was not
following the recommendations therefrom. Ms. Ferguson also expressed great concern
that Father had not yet completed any training on how to administer Kyle’s breathing
treatments. Notably, Ms. Ferguson stated that she had been unable to complete any visits
to Father’s home because Father informed her that she was not welcome in the home
until the children were returned to his custody.
Ms. Ferguson filed another affidavit on October 18, 2017, opining as to largely the
same issues as listed in her first affidavit. Although Ms. Ferguson explained that she was
able to complete a home visit on October 13, 2017, she still had serious concerns about
the condition of the home. Namely, there was still exposed wiring in the children’s room,
and the children’s room was apparently insulated with comforters and blankets that were
stuffed into the ceiling. There was no bed for Kyle, but only a pack and play that Ms.
Ferguson alleged was very dirty. Ms. Ferguson averred that the home as a whole was
extremely dirty and that this concerned her because of Kyle’s sensitive respiratory issues.
Also concerning to Ms. Ferguson was the presence of a free-standing wood stove in the
kitchen, as she felt this created a safety hazard for the children as well as air quality
5
Because of his NAS, Kyle suffers from severe issues with his upper respiratory system and
requires ongoing care for this condition.
6
Although a second permanency plan was created in August of 2017, it appears that the
requirements for Father were largely the same, and this second plan was never ratified by the trial court.
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issues that would be problematic for Kyle. Additionally, Ms. Ferguson noted that Father
had only visited the children twice since June, and that while there were several visits
scheduled in September and October, Father had either cancelled or not come to the
visits.
As a result of these continuing issues, DCS filed a petition to terminate both
Mother’s and Father’s parental rights on November 9, 2017. The statutory grounds
alleged by DCS were abandonment by willful failure to visit, abandonment by willful
failure to provide support, abandonment by failure to provide a suitable home, substantial
noncompliance with the permanency plan, persistence of conditions, and severe abuse
with regard to Mother only. The trial court held its hearing on the petition on April 19,
2018. During the trial of this matter, the court heard testimony from Ms. Ferguson as well
as Kiara’s therapist, Helen Lyle-Joiner, Amanda H. (“Foster Mother”), as well as both
Mother and Father.
Ms. Ferguson’s testimony in large part mirrored her affidavits of continuing
reasonable efforts. Ms. Ferguson testified that although Father had completed certain
aspects of his permanency plan, such as parenting classes and an alcohol and drug
assessment, there was no proof of completion provided to DCS and no proof that Father
was complying with the follow-up recommendations. Ms. Ferguson testified that in
general, Father was very uncooperative and that he easily lost his temper with Ms.
Ferguson or the children. In particular, Ms. Ferguson noted that during Father’s phone
calls with Kiara, he would often become upset with the child if he heard Kiara refer to her
foster parents as “mom” and “dad.” In one instance, Ms. Ferguson heard Father tell Kiara
that she had to call the foster parents “Ms. Amanda” and “Mr. Bryan” because they had
not earned the right to be called “mom” and “dad.”
Overall, it was Ms. Ferguson’s position that Father’s erratic behavior prevented a
loving relationship with Kiara, as Kiara would often ask not to participate in phone calls
or would become extremely upset afterwards. Kiara has, according to Ms. Ferguson,
indicated that she wishes to remain in the care of her foster parents rather than being
returned to her biological parents.
Ms. Ferguson also testified that Father and Kyle essentially have no relationship
because Kyle was placed with his foster parents at such a young age. Ms. Ferguson did
testify about Kyle’s health issues and how he has improved markedly since his birth.
However, Ms. Ferguson also testified that when Kyle needed surgery due to having
constant ear infections, she experienced resistance from Father in getting the consent
form signed. Other than his health complications, Ms. Ferguson testified that Kyle was
generally thriving in his foster care placement and that he appeared to be happy and
stable. In Ms. Ferguson’s opinion, both children were doing extremely well in the care of
the child’s foster family, Foster Mother and Bryan F. (“Foster Father,” and together with
Foster Mother, “Foster Parents”), and that it was in the children’s best interest to remain
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in that placement.
The court next heard testimony from Kiara’s therapist, Ms. Lyle-Joiner, who was
assigned to Kiara immediately upon Kiara’s placement in DCS custody. Ms. Lyle-Joiner
testified at length regarding the strides that Kiara has made since the beginning of her
therapy. Upon first arriving in DCS custody, Ms. Lyle-Joiner found Kiara to be very
erratic and essentially non-verbal. Ms. Lyle-Joiner was also adamant that Kiara had
experienced some level of trauma in Father’s home, likely as a result of witnessing
domestic violence. This opinion was based on Ms. Lyle-Joiner’s experience in doing
“play therapy” with Kiara, which Ms. Lyle-Joiner described as a type of “psychotherapy
that utilizes involved play to help the child express feelings.” Ms. Lyle-Joiner testified
that Kiara often used Barbie dolls to reenact violent scenes between the male and female
dolls. Kiara would call the dolls by the names “Bozzy” and “Scarlett,” which are the
names by which Kiara refers to her biological parents.
While this behavior initially caused Ms. Lyle-Joiner great concern, she went on to
testify that Kiara has since become more verbal and is almost like a “new child.” Kiara’s
play with dolls no longer features aggressive scenes, and Ms. Lyle-Joiner indicated that
Kiara often expresses love and affection regarding her foster parents as well as her
brothers and sisters. According to Ms. Lyle-Joiner, Kiara refers to her foster parents as
“mommy” and “daddy,” and has expressed that she wishes to remain in the foster
parents’ home. When asked about Kiara’s relationship with her biological parents, Ms.
Lyle-Joiner testified to the following:
[Kiara] tells me that she does not want to talk to them. She tells me that she
does not want to see them. She says that basically the only thing that she
likes about the visits is that they will bring her things. Otherwise she does
not want to have contact with them. . . . I mean, she has talked about Bozzy
yelling and telling her that they are her parents, not [Foster Parents]. That
they are the mommy and daddy. She has been upset because she has told
me that Bozzy calls them fools, calls [Foster Parents] fools. Tells her that
they do not love her and that she will not be living with them. He tells her
that she will be coming back to live with her parents.
Accordingly, Ms. Lyle-Joiner’s testimony reflected her overall opinion that Kiara’s
emotional and mental state had improved dramatically since her placement with her
foster parents and that Kiara could be exposed to violence should she be returned to
Father’s home.
Ms. Lyle-Joiner’s testimony was echoed by the testimony of Foster Mother. While
very brief, Foster Mother’s testimony also indicated that both children’s overall condition
had improved dramatically since their placement with her and that Kyle and Kiara benefit
from having developed a close relationship with their older half-siblings. According to
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Foster Mother, Kiara is quite attached to her older sister and all of the children play very
well together.
Foster Mother also testified about the extensive medical care and therapy that both
children need on a weekly basis. Upon arriving in their custody, Kiara needed oral
surgery to remove fourteen teeth and requires fairly regular follow-up visits to the dentist.
Foster Mother also testified that Kyle typically has three to four appointments per week
and that Kyle requires specialized care from a pulmonologist, urologist, and optometrist.
Despite all of these ongoing issues, Foster Mother testified that she and Foster Father are
prepared to adopt the children, and have in fact already begun the adoption process for
the two older siblings.
Finally, the trial court heard testimony from Father, who testified that although it
was true that he only visited the children twice in the relevant four month period, this was
largely due to scheduling issues with DCS and Omni.7 In Father’s view, it was difficult to
schedule visits because the family’s Omni caseworker changed several times and at one
point the Omni caseworker was on vacation. Father also testified that neither he nor
Mother has a driver’s license and that they have limited funds for gas, so transportation to
and from visits was sometimes difficult. With regard to his failure to pay child support,
Father was apologetic; he testified that although he does not have a lot of money, he
could have paid some support towards the children’s care each month and apologized to
the court for not doing so.
In addressing his apparent lack of steady employment, Father testified that he
sometimes has difficulty finding a job because of a past arrest.8 However, Father also
testified that he sometimes does construction work for his brother and other odd jobs for
neighbors and friends. Father testified that he shares all of his expenses with his parents
and that if he does not have money any given month then he does not contribute. Father
was adamant, however, that a stable job was about to become available to him through a
business called “Gemcare.” Father also testified that he was currently in the process of
obtaining his G.I. benefits.
Father further testified about the allegedly problematic conditions within his
home, as well as his failure to take Kiara to a dentist. Regarding the home, Father was
insistent that although the home is not perfect, it is also not “a cardboard box.” Father
disputed that there was exposed wiring in the children’s room and opined that the wood
stove was simply used for extra heat on cold nights. If it were required for Kyle’s health,
Father testified that he would get rid of the stove. Father also relied on previous
7
Omni appears to be the agency that facilitates visitation between children in DCS custody and
their parents.
8
It is not clear from the record what Father’s prior arrest is related to, although he did testify that
it is from 2011.
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statements from the children’s guardian ad litem that the home was indeed acceptable for
the children albeit not in perfect condition. In addressing the condition of Kiara’s teeth,
Father testified that the child’s primary care physician had previously told Father that
Kiara was too young to go to a dentist. Father also acknowledged that he would often
give Kiara sodas and candy, and that this likely contributed to her dental issues.
Despite the foregoing, Father remained adamant that as the children’s biological
parent, Kyle and Kiara should be returned to his custody. In closing Father alleged that he
had completed most of what was required of him under the permanency plan with little
help from DCS:
There was not really no CM help. I mean it was more – it felt like more
against us than for us. At no point did it feel that the goal was to return the
children to their parents. I mean, I did 12 courses because I failed for
marijuana. I do not understand all that but I did it anyway whatever they
said to do, we did. I might have been a little stubborn or pig-nosed about it
but we accomplished it anyway.
At the conclusion of the testimony, the trial court delivered its oral ruling,
determining that DCS satisfied its burden with regard to three of the statutory grounds
alleged against Father: abandonment by willful failure to visit, abandonment by willful
failure to support, and persistence of conditions. With regard to abandonment by failure
to provide a suitable home, the trial court concluded that DCS had not offered clear and
convincing evidence in light of the statements from the children’s guardian ad litem that
the home was acceptable. Likewise, the trial court concluded that DCS failed to prove by
clear and convincing evidence that Father was substantially noncompliant with his
permanency plan, seeing as how Father completed or attempted to complete several
action steps. The trial court also found sufficient evidence of two grounds to terminate
Mother’s parental rights: abandonment by willful failure to visit and severe abuse.
Finally, the trial court determined that termination of both parent’s rights was in the
children’s best interest considering their overall improvement since being placed with
their foster parents, and the fact that the foster parents wish to adopt both children and
their siblings.9 A written order detailing this ruling was entered May 22, 2018, and Father
thereafter filed a timely notice of appeal.
9
Here, we note that Mother did not file a notice of appeal, but rather filed a document
acknowledging that she failed to perfect an appeal and would be submitting the case for decision on the
record and the briefs of the other parties. Mother therefore declined to file a brief for this Court’s review.
Based on this filing, we perceive Mother’s actions to mean that she has declined to participate in this
appeal and does not contest the termination of her parental rights. While we do not think it necessary
under these particular circumstances, we have reviewed the statutory grounds for termination alleged
against Mother in an abundance of caution. Based upon this review, we conclude that clear and
convincing evidence supports the trial court’s decision to terminate Mother’s parental rights based upon
willful failure to visit and severe abuse. See Tenn. Code Ann. §§ 36-1-113(g)(1) & 36-1-113(g)(4). As
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Issues Presented
Father raises the following issues for review, which are restated from his brief:
1. Whether the trial court erred in concluding that clear and convincing
evidence supports termination based on the abandonment grounds?
2. Whether the trial court erred in concluding that clear and convincing
evidence supports termination based on persistence of conditions?
3. Whether the trial court erred in concluding that clear and convincing
evidence supports the finding that termination is in the children’s best
interest?
Standard of Review
The Tennessee Supreme Court has explained that:
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. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley v. Illinois,
405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896
S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578–
79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. .
. .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E., 303
S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 52223 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute which identifies
“‘situations in which that state’s interest in the welfare of a child justifies interference
with a parent’s constitutional rights by setting forth grounds on which termination
proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618 at *7 (Tenn. Ct. App. Apr. 29. 2005) (citing Tenn. Code Ann. §
discussed infra, we also conclude that termination of both parent’s parental rights is in the best interests
of the children.
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36-1-113(g)). Thus, a party seeking to terminate a parent’s rights must prove (1)
existence of one of the statutory grounds and (2) that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interest by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d at 546. Clear
and convincing evidence “establishes that the truth of the facts asserted is highly probable
. . . and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from evidence[,]” and “produces in a fact-finder’s mind a firm belief
or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004).
In termination cases, appellate courts review a trial court’s factual findings de
novo and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W at
52324 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); 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)). Our supreme court further explains:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at
393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally,
all other questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of correctness. In re
Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W at 524.
Lastly, in the event that the “resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying, is in a far better position than
this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct.
App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore
“gives great weight to the credibility accorded to a particular witness by the trial court.”
In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn.
Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
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Discussion
Grounds for Termination
In the present case, DCS alleged the following grounds for termination of Father’s
parental rights: abandonment by willful failure to support, abandonment by failure to
visit, abandonment by failure to provide a suitable home for the children, persistence of
conditions, and substantial noncompliance with the permanency plan. As a threshold
matter, we note that the trial court concluded that DCS failed to prove by clear and
convincing evidence abandonment by failure to provide a suitable home and substantial
noncompliance with the permanency plan. Moreover, DCS has not raised the trial court’s
conclusion regarding these two findings as an issue on appeal. As we perceive the
Tennessee Supreme Court’s holding in In re Carrington H., we need not review the trial
court’s findings as to grounds for termination if the trial court found in favor of the parent
and DCS does not challenge that finding on appeal. See In re Addalyne S., 556 S.W.3d
774, 796 n.6 (Tenn. Ct. App. 2018) (quoting In re Sydney B., 537 S.W.3d 452, 456
(Tenn. Ct. App. 2017), perm. app. denied (Tenn. Aug. 1, 2017)) (“‘The rule adopted
in Carrington has never been construed to require this Court to also consider the grounds
not sustained by the trial court and not challenged on appeal by the petitioning non-
parent. As such, this Court is not required to review this ground for termination.”).
Consequently, we address only the termination grounds for which the trial concluded
clear and convincing evidence supported the termination of Father’s parental rights.
Abandonment Generally
Abandonment is a statutory ground for termination of parental rights. Tenn. Code
Ann. § 36-1-113(g)(1). For purposes of this appeal, Tennessee Code Annotated section
36-1-102 defines “abandonment,” in relevant part, as
(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
parent or parents or a guardian or guardians of the child who is the subject
of the petition for termination of parental rights or adoption, that the parent
or parents or a guardian or guardians either have willfully failed to visit or
have willfully failed to support or have willfully failed to make reasonable
payments toward the support of the child;
Tenn. Code Ann. § 36-1-102(1)(A)(i).10 A central inquiry a court must make when
determining whether a parent abandoned its child pursuant to section 36-1-102(1)(A) is
10
In 2018, the Tennessee General Assembly saw fit to amend our termination of parental rights
statutes to remove the element of willfulness from the definition of abandonment by failure to support or
visit. See Tenn. Code Ann. § 36-1-102(1)(A)(i) (defining abandonment as, inter alia, “[f]or a period of
four (4) consecutive months immediately preceding the filing of a proceeding, pleading, petition, or any
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whether the abandonment was willful. See Tenn. Code Ann. § 36-1-102(1)(A)(i). This
Court has explained the concept of willfulness in parental termination cases:
The concept of “willfulness” is at the core of the statutory definition
of abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either
“willfully” failed to visit or “willfully” failed to support the child for a
period of four consecutive months.
In the statutes governing the termination of parental rights,
“willfulness” does not require the same standard of culpability as is
required by the penal code. Nor does it require malevolence or ill will.
Willful conduct consists of acts or failures to act that are intentional or
voluntary rather than accidental or inadvertent. Conduct is “willful” if it is
the product of free will rather than coercion. Thus, a person acts “willfully”
if he or she is a free agent, knows what he or she is doing, and intends to do
what he or she is doing.
Failure to visit or support a child is “willful” when a person is aware
of his or her duty to visit or support, has the capacity to do so, makes no
attempt to do so, and has no justifiable excuse for not doing so. Failure to
visit or to support is not excused by another person’s conduct unless the
conduct actually prevents the person with the obligation from performing
his or her duty[] or amounts to a significant restraint of or interference with
the parent’s efforts to support or develop a relationship with the child[.]
The parental duty of visitation is separate and distinct from the parental
duty of support. Thus, attempts by others to frustrate or impede a parent’s
amended petition to terminate the parental rights of the parent or parents or the guardian or guardians of
the child who is the subject of the petition for termination of parental rights or adoption, that the parent or
parents or the guardian or guardians either have failed to visit or have failed to support or have failed to
make reasonable payments toward the support of the child”). Rather than include willfulness as an
element of the ground, Tennessee Code Annotated section 36-1-102(1) now provides that it is an
affirmative defense:
For purposes of this subdivision (1), it shall be a defense to abandonment for
failure to visit or failure to support that a parent or guardian’s failure to visit or support
was not willful. The parent or guardian shall bear the burden of proof that the failure to
visit or support was not willful. Such defense must be established by a preponderance of
evidence. The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of
the Tennessee Rules of Civil Procedure[.]
Tenn. Code Ann. § 36-1-102(1)(I), enacted by 2018 Tennessee Laws Pub. Ch. 875 (H.B. 1856),
eff. July 1, 2018. We have previously held that this change will not apply retroactively. See In re Gabriel
B., No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 (Tenn. Ct. App. July 23, 2018) (citing In
re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004)) (“Because this change is substantive rather than
procedural or remedial, however, the amended statute will not be applied retroactively to this case.”). As
such, we apply the version of the statute at issue when the case was initiated.
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visitation do not provide justification for the parent’s failure to support the
child financially.
The willfulness of particular conduct depends upon the actor’s
intent. Intent is seldom capable of direct proof, and triers-of-fact lack the
ability to peer into a person’s mind to assess intentions or motivations.
Accordingly, triers-of-fact must infer intent from the circumstantial
evidence, including a person’s actions or conduct.
In re Audrey S., 182 S.W.3d 838, 86364 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted). For purposes of this case, the burden is on the petitioner to prove
willfulness. See In re: Leroy H., No. M2017-02273-COA-R3-PT, 2018 WL 3700917, at
*8 (Tenn. Ct. App. Aug. 3, 2018) (discussing the burden to show willfulness); In re
Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *17 (Tenn. Ct. App.
Apr. 20, 2016) (holding that the petitioner failed to meet its burden to show that the
parent’s failure to support was willful). “‘Whether a parent failed to visit or support a
child is a question of fact. Whether a parent’s failure to visit or support constitutes
willful abandonment, however, is a question of law.’” In re Navada, 498 S.W.3d at 593
(quoting In re Adoption of Angela E., 182 S.W.3d at 640).
Willful Failure to Visit
We begin with abandonment by willful failure to visit. Tennessee Code
Annotated section 36-1-102 defines willful failure to visit as “the willful failure, for a
period of four (4) consecutive months, to visit or engage in more than token visitation[.]”
Tenn. Code Ann. § 36-1-102(E). “Token visitation” means that “under the circumstances
of the individual case, [there is] nothing more than perfunctory visitation or visitation of
such an infrequent nature or of such short duration as to merely establish minimal or
insubstantial contact with the child.” Tenn. Code Ann. § 36-1-102(C). As previously
discussed, we consider the four month period prior to the filing of the initial termination
petition. See In re Adoption of Angela, 402 S.W.3d at 640. As such, the relevant period
here is July 9, 2017 to November 8, 2017.
With regard to this ground, the trial court made the following relevant findings:
DCS filed its Petition to Terminate Parental Rights on November 9, 2017,
making the relevant statutory time period between July 9, 2017 and
November 9, 2017. During this time period, the Court finds that [Father]
visited the children in person two times. In addition to the in-person
visitation, the court does find that the parents attempted to visit through
telephonic contact. However, the court finds without doubt that this
telephonic visitation was a hindrance to the child’s relationship with the
parents. Testimony revealed that the child frequently asked to not have to
speak on the phone while [Father] would yell at the child to speak with
him.
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Based on our review of the record, we conclude that clear and convincing evidence
supports this ground for termination. Father does not dispute that in the relevant four
month period leading up to the filing of the petition to terminate his parental rights, he
only exercised his allotted visitation time with the children on two occasions, July 12,
2017 and August 28, 2017. Father was entitled to two visits per month with the children,
meaning Father had the opportunity to visit the children at least eight times in the
relevant four month period. Father, however, offered essentially no explanation as to why
he declined to exercise the other six opportunities for visitation available to him between
July 9, 2017, and November 8, 2017.
In this case, Father was allowed both in person and telephonic visitation. Specifically,
Father was entitled to one phone call with the children per week, as well as two in person
visits per month. The undisputed evidence shows that Father failed to exercise all of his
allotted visitation. Here, Father spoke with Kiara on the phone once in July, five times in
August, twice in September, and twice in October. Even when Father did speak with
Kiara on the phone, however, the visitation was not appropriate, as Father would often
yell at the child or become angry with her if she expressed a desire not to speak to Father,
or if Kiara expressed that she did not wish to leave her foster parents’ home. Father’s
exercise of in-person visitation was even more sparse, consisting of only two visits in the
entire relevant four month period. This in-person visitation was Father’s only contact
with Kyle, as he was too young to have meaningful telephonic visitation. The evidence
also showed that Father generally had no meaningful relationship with either child. As
such, Father’s visitation was of “an infrequent nature or of such short duration as to
merely establish minimal or insubstantial contact with the child.” Tenn. Code Ann. § 36-
1-102(C). Given the circumstances, we must conclude that Father’s contact with the
children was nothing more than token.
The evidence also supports the trial court’s finding that Father’s failure to maintain
contact was willful. Here, Father testified that the lack of in-person visits was the result
of transportation issues. Even crediting this testimony, however, there is no excuse for the
sparcity of telephonic visitation in the four month period. Moreover, in the months
following the filing of the petition for termination, Father’s visitation became quite
regular. Ms. Ferguson testified that after the petition was filed in early November of
2017, Father requested additional visitation with the children later that month and also
exercised his visitation in December. Ms. Ferguson also testified that starting in January
of 2018, Father consistently exercised both scheduled visitations every month. It appears
that although Father testified to having various issues obtaining transportation to and
from his visits, he was quite capable of attending both monthly visits once motivated by
the filing of the petition. See Tenn. Code Ann. § 36-1-102(1)(F) (“Abandonment may not
be repented of by resuming visitation or support subsequent to the filing of any petition
seeking to terminate parental or guardianship rights or seeking the adoption of a
child[.]”); see also In re Jacobe M.J., 434 S.W.3d 565, 571 (Tenn. Ct. App. 2013)
(noting that “[f]ather’s visitation after the filing of the petition cannot cure his failure to
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visit in the four month period prior to the filing date.”); see also In re P.G., No. M2017-
02291-COA-R3-PT, 2018 WL 3954327, at *17 (Tenn. Ct. App. Aug. 17, 2018)
(discussing cases in which we have held that efforts that occurred only after the filing of a
termination petition were “too little, too late”). The trial court’s finding that clear and
convincing evidence supports the ground of abandonment by willful failure to visit is
affirmed.
Willful Failure to Support
We next consider whether the trial court erred in finding clear and convincing
evidence of abandonment by willful failure to support. In order to satisfy section 36-1-
102, a party must prove that the parent has “willfully failed to support or ha[s] willfully
failed to make reasonable payments toward the support of the child.” Tenn. Code Ann. §
36-1-102(A)(1)(i). “Willful failure to support or to make reasonable payments toward
support means ‘the willful failure, for a period of four (4) consecutive months, to provide
monetary support or the willful failure to provide more than token payments toward the
support of the child.’” In re Adoption of Angela E., 402 S.W.3d at 640 (quoting Tenn.
Code Ann. § 36-1-102(1)(D)). “Failure to visit or support a child is ‘willful’ when a
person is aware of his or her duty to visit or support, has the capacity to do so, makes no
attempt to do so, and has no justifiable excuse for not doing so.” In re Audrey S., 182
S.W.3d at 864 (citing In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004)). If a
parent is financially unable to support a child, then the failure to support is not willful.
Id. at 824 fn.33. Token support, however, does not prevent a court from finding willful
failure to support. In re Adoption of Angela E., 402 S.W.3d at 641. Token support is
defined as support “under the circumstances of the individual case, is insignificant given
the parents means[.]” Tenn. Code Ann. § 36-1-102(B). Again, we note that in the
present case, the relevant four-month period is July 9, 2017 through November 8, 2017.
With regard to this ground, the trial court found the following:
[Father] knew or should have known that he had to pay child support
because he was served with paperwork and a court date for a child support
hearing. It was also covered in the Criteria to Terminate Parental Rights
provided to him by DCS. [Father] is able-bodied and capable of working
and earning enough to support himself as well as paying child support.
[Father] reported that he was working at Onin Staffing until sometime in
July, at which time it was discovered that he had walked off the job in June.
In August or September, [Father] reported that he was working at Massey
Construction. In October, it was discovered that [Father] had left
employment with Massey Construction. [Father] then reported that he was
taking odd jobs from Facebook and Craig’s List; these posts began popping
up around September 25.
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On appeal, Father asserts that the evidence proffered at trial did not show that
Father was financially able to pay child support. Father points out in his brief that during
trial, he was questioned about his income and expenses and testified that he typically
does not have much money remaining after contributing to monthly expenses. Thus,
according to his brief, Father’s failure to pay child support for both children cannot be
considered willful “due to [Father’s] financial hardship.”
Father’s argument, however, fails to acknowledge important testimony from
Father that he could have paid more child support for the children during the relevant
four month period, but simply did not. Indeed, when Father was questioned about having
surplus funds that could have gone towards child support, Father responded “Yeah. I
could have. I apologize for not.”
Accordingly, we cannot find that under these circumstances the trial court erred in
concluding that clear and convincing evidence supports the ground of willful failure to
support. While the record reflects that Father may struggle financially, he admitted at trial
that he could have paid child support for the children. This Court has previously held,
under similar circumstances, that a parent’s candid admission that he could have paid
child support and simply did not do so buttressed the petitioner’s contention that the
parent willfully failed to support the child. See In Re Addalyne S., 556 S.W.3d 774,
79092 (Tenn. Ct. App. 2018) (“the record shows that [father] had the ability to make
this payment throughout the four-month period, rather than for a single month. . . .
Coupled with [f]ather’s admission at trial that he had the knowledge and ability to pay
support but did not do so, we conclude that [petitioners] provided clear and convincing
evidence that [f]ather willfully failed to provide no more than token support in the
relevant period.”).
In the present case, Father offered no financial support to the children in the
relevant four month period, but made one child support payment after the filing of the
petition for termination. Although the evidence reflects that Father would sometimes
bring small items for the children to visitation, such as snacks, clothes, or diapers, these
items are “insignificant” in light of Father’s admission that he could have paid child
support. Tenn. Code Ann. § 36-1-102(B). Thus, under the circumstances of this case,
what was offered by Father was, in light of his own admission, merely “token” support.
Tenn. Code Ann. § 36-1-102(B). Clear and convincing evidence therefore supports the
finding that Father willfully failed to support the children for the four months preceding
the filing of the petition to terminate his parental rights. As such, the trial court’s finding
with regard to this ground is affirmed.
Persistence of Conditions
We next consider whether DCS presented clear and convincing evidence that
Father failed to remedy the conditions that necessitated removal of the children. Pursuant
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to Tennessee Code Annotated section 36-1-113(g)(3), the court may terminate parental
rights when a child “has been removed from the home or the physical or legal custody of
a parent or guardian for a period of six (6) months by a court order entered at any stage of
proceedings in which a petition has been filed in the juvenile court alleging that a child is
a dependent and neglected child,” and
The conditions that led to the child’s removal still persist, preventing the
child’s safe return to the care of the parent or guardian, or other conditions
exist that, in all reasonable probability, would cause the child to be
subjected to further abuse or neglect, preventing the child’s safe return to
the care of the parent or guardian; (ii) There is little likelihood that these
conditions will be remedied at an early date so that the child can be safely
returned to the parent or guardian in the near future; and (iii) The
continuation of the parent or guardian and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home.
Tenn. Code Ann. § 36-1-113(g)(3)(i).11
Failure to remedy the conditions which led to removal need not be willful. In re
T.S. and M.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *6 (Tenn. Ct. App.
July 13, 2000) (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338
(Tenn. 1990)). “A parent’s continued inability to provide fundamental care to a child,
even if not willful, . . . constitutes a condition which prevents the safe return of the child
11
This ground for termination was also amended in 2018. See 2018 Tenn. Laws Pub. Ch. 875
(H.B. 1856), eff. July 1, 2018. The current version of the statute provides a ground for termination where
(A) The child has been removed from the home or the physical or legal custody of a
parent or guardian for a period of six (6) months by a court order entered at any stage
of proceedings in which a petition has been filed in the juvenile court alleging that a
child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist, preventing the child’s safe
return to the care of the parent or guardian, or other conditions exist that, in all reasonable
probability, would cause the child to be subjected to further abuse or neglect, preventing
the child’s safe return to the care of the parent or guardian;
(ii) There is little likelihood that these conditions will be remedied at an early date so that
the child can be safely returned to the parent or guardian in the near future; and
(iii) The continuation of the parent or guardian and child relationship greatly diminishes
the child’s chances of early integration into a safe, stable, and permanent home.
(B) The six (6) months must accrue on or before the first date the termination of parental
rights petition is set to be heard.
Neither party argues that this Court should apply the current version of the statute; as such, we
apply the version in effect at the time the termination petition was filed.
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to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at
*20 (Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S., No. M1999-01286-COA-R3-CV,
2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). “Where . . . efforts to provide
help to improve the parenting abilities, offered over a long period of time, have proved
ineffective, the conclusion that there is little likelihood of such improvement as would
allow the safe return of the child to the parent in the near future is justified.” Id. The
purpose behind the “persistence of conditions” ground for terminating parental rights is
“to prevent the child’s lingering in the uncertain status of foster child if a parent cannot
within a reasonable time demonstrate an ability to provide a safe and caring environment
for the child.” Id. (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL
588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).
As previously discussed, this ground for termination is only applicable where the
child has been removed from the custody of the parent for six months following the entry
of an order of dependency and neglect. Tenn. Code Ann. § 36-1-113(g)(3); see generally
In re Audrey S., 182 S.W.3d 838, 874–75 (Tenn. Ct. App. 2005) (discussing the
requirements of this ground for termination). In the present case, the children were
adjudicated dependent and neglected by order of March 2, 2017, and remained in DCS
custody for eight months before the filing of the termination petition on November 9,
2017. As such, there is no dispute that this ground is applicable. We therefore proceed to
consider the evidence presented in support of this ground.
Here, the trial court concluded that DCS presented clear and convincing evidence
demonstrating persistence of conditions but made rather sparse findings:
[Father] has rectified the problems related to drug use. [Father] is able to
test negative for all testable substances on drug screens and did complete an
alcohol and drug assessment and classes. However, this Court finds
particularly troubling the fact that the child had teeth but [Father] believed
that she could not have dental care. To date, [Father] has not shown an
ability to act on the children’s medical needs and the Court finds this likely
to continue.
Here, we cannot agree with the trial court that DCS proved persistence of
conditions by clear and convincing evidence. First, one of the primary reasons the
children were removed from the Father’s care was the fact that Father tested positive for
marijuana. The trial court conceded that this condition has been rectified. DCS does not
dispute that Father no longer has any issues with substance abuse, as there was no proof
offered by DCS on this point at trial.
Second, it is not clear that Father continues to misunderstand the issues regarding
Kiara’s dental care. Although it is certainly troubling that the child’s teeth were in such
poor condition upon entering DCS custody, Father testified at trial that he was under the
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impression that the child was too young to go to the dentist. DCS offered no proof,
however, that Father is still under this impression. On the contrary, Father’s testimony
reflects that he now recognizes that failing to take Kiara to the dentist was obviously a
mistake. As Father has not had custody of Kiara since her removal, and has therefore not
been responsible for her medical or dental care, it is unclear what else Father could have
done to demonstrate to DCS that he now understands his error. Accordingly, it appears
that clear and convincing evidence does not support the trial court’s finding that Father
continues to be unable to act on the children’s medical needs.
The basis for the finding of persistence of conditions as to Kyle is even more
perplexing, as the order does not address Kyle or any of the conditions that necessitated
Kyle’s removal. In its petition for termination, DCS averred in part that the conditions at
issue involved Father’s unsafe and unclean home in light of Kyle’s respiratory problems
stemming from his NAS. However, in addressing DCS’s allegation that Father
abandoned the children by failing to provide a suitable home for the children, the trial
court concluded that DCS failed to meet its burden to show that Father’s home was
unsuitable for the children. In reaching this decision, the trial court noted that DCS
offered no photographs of the alleged conditions within the home, and noted the previous
statements from the guardian ad litem that the home was acceptable for the children.
Consequently, it is perplexing that the trial court would then find by clear and convincing
evidence that Father’s parental rights as to Kyle should be terminated based on
persistence of conditions within his home.
It appears that the trial court’s findings as to the conditions in Father’s home are
inconsistent. On one hand the trial court concluded that DCS failed to meet its burden in
showing Father’s failure to provide a suitable home, and simultaneously found that DCS
did meet its burden in showing a persistence of the problematic conditions within the
home. Even considering the totality of the evidence, we cannot affirm such a conflicting
ruling. The trial court’s finding that clear and convincing evidence supports termination
of Father’s parental rights based upon persistence of conditions is therefore reversed as to
both children.
Best Interests
Having determined that clear and convincing evidence supports two statutory
grounds for termination of Father’s parental rights, we now turn to whether termination is
in the best interests of the children. “Upon establishment of a ground for termination, the
interests of the child and parent diverge, and the court’s focus shifts to consider the
child’s best interest.” In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). Even
where a parent is unfit, termination may not necessarily be in the best interests of the
child. Id.
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Tennessee’s termination statute lists the following factors to be used in the best
interests analysis:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i)(1)-(9).
The Tennessee Supreme Court has explained that:
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Facts considered in the best interests analysis must be proven by a
preponderance of the evidence, not by clear and convincing evidence. After
making the underlying factual findings, the trial court should then consider
the combined weight of those facts to determine whether they amount to
clear and convincing evidence that termination is in the child’s best
interests. When considering these statutory factors, courts must remember
that the child’s best interests are viewed from the child’s, rather than the
parent’s, perspective. Indeed, a focus on the perspective of the child is the
common theme evident in all of the statutory factors. When the best
interests of the child and those of the adults are in conflict, such conflict
shall always be resolved to favor the rights and the best interests of the
child.
In re Gabriella D., 531 S.W.3d 662, 68182 (Tenn. 2017) (internal citations omitted).
Furthermore, “[a]scertaining a child’s best interests does not call for a rote examination”
of the statutory factors. In re Audrey S., 182 S.W.3d at 878. The analysis requires “more
than tallying the number of statutory factors weighing in favor of or against termination.”
In re Gabriella D., 531 S.W.3d at 682 (citing White v. Moody, 171 S.W.3d 187, 19394
(Tenn. Ct. App. 2004)). “The facts and circumstances of each unique case dictate how
weighty and relevant each statutory factor is in the context of the case,” and the analysis
“must remain a factually intensive undertaking.” In re Gabriella D., 531 S.W.3d at 682.
Thus, “[d]epending upon the circumstances of a particular child and a particular parent,
the consideration of one factor may very well dictate the outcome of the analysis.” Id.
(citing In re Audrey S., 182 S.W.3d at 878). In undertaking this analysis, the court must
examine all of the statutory factors, as well as other relevant proof put forth by the
parties. Id.
In the present case, the trial court determined that it was in both children’s best
interest that Father’s parental rights be terminated. Father argues on appeal, however, that
because the trial court “failed to mention any of the factors in the statute and did not
indicate in anyway [sic] that it had considered them[,]” the trial court’s ruling should be
overturned. In support, Father appears to rely on our supreme court’s ruling in In re
Gabriella D. 531 S.W.3d 662, 682 (Tenn. 2017) (holding that the trial court must
consider all of the statutory best interest factors, as well as any other relevant proof).
Respectfully, Father’s argument is unavailing. Here, the trial court expressly noted
that it “carefully considered the factors as enumerated in Tennessee Code Annotated §
36-1-113(i) in regards to the best interest” of the children, and discussed what it
considered to be the most substantial and persuasive factors. While a detailed factor-by-
factor analysis would constitute the best practice to avoid similar issues on appeal in the
future, it appears that the trial did appropriately weigh the enumerated factors in section
36-1-113(i). Thus, despite Father’s argument otherwise, the trial court’s approach to the
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best interest analysis does not constitute reversible error in the present case. See generally
Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in
prejudice to the judicial process.”). Moreover, our own review of the record reflects that
most, if not all, of the statutory factors weigh in favor of terminating Father’s parental
rights. Accordingly, we shift our attention to a review of the best interest factors.
As discussed previously, Father has failed both to maintain regular visitation with
the children and to pay regular child support towards their care. Tenn. Code Ann. §§ 36-
1-113(i)(3) & (9). DCS presented ample evidence regarding its interactions with Father
throughout the time the children were in DCS custody, and that evidence reflects that
Father only began consistent visitation after DCS filed its petition to terminate Father’s
parental rights. Likewise, Father made only one child support payment for the children in
December of 2017, also after the filing of the petition. Accordingly, Father appears to
take fundamental parenting responsibilities seriously only after being threatened with
termination by DCS. This behavior inspires little confidence in Father’s commitment to
parenting the children.
The evidence presented at trial also reflects that Father does not have a meaningful
relationship with either child. Tenn. Code Ann. § 36-1-113(i)(4). Kyle was placed in
DCS custody when he was approximately two weeks old. Since then, Kyle’s only
interaction with Father has been Father’s in-person visitation. Kyle is too young to speak
on the phone with Father; thus, as mentioned previously, there have been long stretches
of time in which Father and Kyle have had no interaction. Kiara, on the other hand, was
in her Father’s custody until approximately the age of three and appears to understand
that Father is her biological parent. Kiara has, however, on multiple occasions expressed
that she does not wish to live with Father and his family. Kiara’s therapist testified at
length about Kiara’s relationship with her Father, explaining how Kiara has expressed to
her that her Father often yells at the child and perhaps abused the child’s mother in front
of Kiara. The therapist also noted that Kiara has expressed that she does not want to live
with her Father because “it is nasty. There is bugs. There is no food. . . . Bozzy is mean.”
Tenn. Code Ann. § 36-1-113(i)(7).
Further, the record shows that when Kiara and her Father do interact at visitation
or on the phone, they often fight or Father aggressively chastises the child. For instance,
Ms. Ferguson testified to several incidents in which Father yelled at Kiara over the phone
because the child called her biological parents by their names, rather than calling them
“mom” and “dad”. Ms. Lyle-Joiner also testified that Kiara has told her that Father tells
Kiara that Kiara’s foster parents do not love her. Because of this and several other similar
instances, the child frequently expresses to Ms. Ferguson that she does not like the phone
calls. Ms. Ferguson also testified that when the child and the parents do engage in in-
person visitation, Kiara makes sure to tell Ms. Ferguson that she wants to go home to her
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foster parents’ house afterwards. Based on the foregoing, neither child has a meaningful
relationship with Father, and consequently this factor heavily favors termination of
Father’s parental rights. Tenn. Code Ann. § 36-1-113(i)(4). Moreover, it appears unlikely
that a lasting adjustment in Kiara’s relationship with her Father can occur at this point, as
Father has demonstrated no ability or willingness to change how he communicates with
the child. Tenn. Code Ann. § 36-1-113(i)(2).
In the same vein, a change in the children’s current caretaker and physical
environment would likely have a detrimental effect on their emotional, psychological,
and medical conditions. Tenn. Code Ann. §36-1-113(i)(5). By all accounts, the children
are bonded to and have a strong relationship with their foster parents. The foster parents
wish to adopt the children, and the foster parents also currently care for, and are in the
process of adopting, the children’s two older half-siblings. Kiara and Kyle are close with
their brother and sister, and the evidence reflects that they clearly benefit from having
older siblings in the same home. Foster Mother testified that Kiara in particular is very
close with her older sister and that all of the children play well together.
Moreover, the foster parents have demonstrated the ability and willingness to be
responsible for Kyle and Kiara’s extensive and ongoing medical needs. Tenn. Code Ann.
§ 36-1-113(i)(5). It is difficult to imagine that the children would not be profoundly
affected if they were to be removed from their current placement. Indeed, the foster
parents are the only parents Kyle has ever known. Clearly, the children have reached a
level of security and stability in their current home that would be difficult to replicate
should they be returned to Father. As such, this factor likewise significantly favors
termination of Father’s parental rights.
There is also evidence in the record that both children have been the victims of
neglect, and that Kyle has been the victim of abuse. Tenn. Code Ann. § 36-1-113(i)(6).
Indeed, Kyle was born with NAS and has had to undergo serious medical treatment,
including surgery, because of that condition. It also is undisputed that Father neglected
Kiara’s dental health to the point that her teeth essentially decayed beyond repair. Tenn.
Code Ann. § 36-1-113(i)(6).
Moreover, this Court is concerned about the possibility of the children’s further
exposure to illegal drugs should they be returned to Father’s custody. Tenn. Code Ann. §
36-1-113(i)(7). Although we acknowledge that Father does not currently struggle with
substance abuse, Father continues to allow Mother to reside in his home despite having
been previously ordered by the court not to do so. Tenn. Code Ann. § 36-1-113(i)(7).
There was evidence presented that the other adults who reside in Father’s home, namely
his parents, are also involved in substance abuse. Id. Consequently, Father does not
appear to be appropriately concerned about further exposing Kyle and Kiara to substance
abuse, and there is nothing in the record to reflect that these issues have been resolved.
Tenn. Code Ann. §§ 36-1-113(i)(1) & (2).
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The evidence also reflects that Kyle and Kiara would remain at risk of being
exposed to domestic violence in Father’s home. See Tenn. Code Ann. § 36-1-113(i)(6) &
(7). While there have been no allegations that Father has ever abused the children,
Kiara’s therapist testified at length about her opinion that Kiara was exposed to domestic
violence in Father’s home. The trial court found this testimony to be significant and
persuasive. Given that Mother and Father’s parents continue to reside in Father’s home,
this Court is simply not confident that Father’s home is free of domestic violence and
substance abuse at this time. Tenn. Code Ann. § 36-1-113(i)(6) & (7). Nor are we
convinced that a lasting adjustment of these conditions is likely to occur in the near
future, as Father indicated at trial that he intends to keep living with his parents and the
children’s mother. Tenn. Code Ann. § 36-1-113(i)(1) & (2). Accordingly, these factors
weigh in favor of termination of Father’s parental rights.
The only factor remaining is section 36-1-113(i)(8), which asks whether the
parent’s mental or emotional status would be detrimental to the child or would prevent
the parent from effectively providing safe and stable care for the child. While the trial
court did not make any findings as to this factor in its final order, our review of the record
has convinced us that this factor militates in favor of termination. We concede that Father
appears to care for the children and demonstrates affection towards them at times. Father
also, however, has demonstrated a troubling lack of self-control that would likely prevent
him from effectively parenting the children going forward. Specifically, Father has on
more than one occasion become enraged with Kiara for referring to Father and Mother by
their first names rather than as mom and dad. During one visit with Kiara, a DCS
caseworker documented Father raising his voice at Kiara after she indicated that she did
not want to visit. The record shows that Father informed Kiara that
You are coming home to us, no matter what anyone says to you, you are
coming home with your Mommy and Daddy. They are not your parents, I
don’t care how many presents they buy you. Are you hearing me? You will
be coming home to me. Parenting is a right, not a privilege and as your
parent I have rights.
In another similar instance, a DCS caseworker documented the following exchange after
Father heard the child refer to her mother as “Scarlett”:
[Father] said “She’s your mother call her that!” He then continued on to say
(in a raised voice) “Regardless of what anyone says, you are coming home
to be with your father and mother. Irregardless of what you WANT! I don’t
care if they buy you gifts. Do you understand that? Do you understand
me?” Kiara asked “Why can’t I stay here?” [Father] responded more
aggressively this time, “You are my kid you are coming home. Don’t tell
anyone you want to stay there because it will make it harder for Daddy.”
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This Court is extremely troubled by these exchanges; they demonstrate not only that
Father easily loses his temper with the children, but also that his temper renders him
unable to effectively communicate with and parent the children. Our concern is
buttressed by testimony from Ms. Ferguson that Father has, on more than one occasion,
lost his temper and become agitated with her to the point that Ms. Ferguson eventually
requested that the court order Father to undergo a full psychological examination.
Accordingly, we conclude that Father’s emotional status weighs in favor of
termination of his parental rights. Tenn. Code Ann. § 36-1-113(i)(8). Father’s interactions
with the children suggest that Father cares more about preserving his legal rights than
furthering the best interests of his children. Coupled with the allegations of domestic
violence in Father’s home, we have great concern that Father’s current emotional state is
not such that he is able to “effectively provide[] safe and stable care and supervision for
the children.” Tenn. Code Ann. § 36-1-113(i)(8). Although Father had the opportunity to
attend anger management, he was discharged for noncompliance and has not returned.
Tenn. Code Ann. §§ 36-1-113(i)(2). Father has also been counseled repeatedly by Ms.
Ferguson about how to communicate appropriately with Kiara, and Father appears
completely unwilling to recognize the problems with his conduct. Tenn. Code Ann. §§
36-1-113(i)(1) & (2).
Considering the totality of the evidence both in favor and against termination of
Father’s parental rights, we conclude that termination is the children’s best interest.
Particularly significant in the present case is the fact that the children have no meaningful
relationship with Father and that a change in environment would have a profoundly
detrimental effect on the children’s well-being. They are thriving in their current
placement, and their foster parents wish to adopt the children along with their two older
siblings. As such, we cannot find that removing the children from such a stable,
harmonious home would be in the children’s best interests at this juncture. Consequently,
we conclude that clear and convincing evidence supports the finding that termination of
Father’s parental rights is in the children’s best interest.
Conclusion
The judgment of the Juvenile Court for Cocke County terminating Father’s
parental rights to Kyle S. and Kiara S. is affirmed in part, reversed in part, and remanded
for proceedings consistent with this Opinion. Costs of this appeal are taxed to the
Appellant Carmen S., for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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