In Re Julian J. ( 2019 )

02/26/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 3, 2018
IN RE JULIAN J. ET AL.
Appeal from the Juvenile Court for Dickson County
No. 05-17-052-CC Michael Meise, Judge
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No. M2018-00882-COA-R3-PT
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A mother and father appeal the termination of their parental rights to two children. The
juvenile court found four statutory grounds for termination of mother’s parental rights
and two statutory grounds for termination of father’s parental rights. The court also
found that termination of both parents’ parental rights is in the children’s best interest.
We conclude that the record contains clear and convincing evidence to support one
ground for termination against Mother and two grounds for termination against Father.
We further conclude that termination of parental rights is in the children’s best interest.
So we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed as
Modified
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON II and ARNOLD B. GOLDIN, JJ., joined.
Steven Hooper, Waverly, Tennessee, for the appellant, Ricky J.
Jennifer L. Honeycutt, Nashville, Tennessee, for the appellant, Cecilia B.
Herbert H. Slatery III, Attorney General and Reporter, and Erin A. Shackelford, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
A.
Cecilia B. (“Mother”) and Ricky J. (“Father”) had two children, Julian, born in
July 2007, and Caydence, born in May 2009. On February 15, 2016, the Tennessee
Department of Children’s Services (“DCS”) received a referral alleging that Father had
exposed the children to drugs. The subsequent investigation revealed that Father tested
positive for bupronephrine. Father had a prescription for the drug, but the pill count was
short by three pills. So DCS referred Father to drug education services, which he chose
not to pursue.
Two days later, DCS received a second referral for drug exposure, this one
concerning Mother. Mother tested positive for methamphetamines and benzodiazepines.
DCS began services for the family but did not remove the children from Mother’s
custody. At a subsequent children and family team meeting on March 31, 2016, Mother
failed another drug screen, again for methamphetamines.
On April 4, 2016, a third party reported to DCS that she had been assaulted by
Mother and her boyfriend in the presence of the children. At this point, Mother and the
children were living in a hotel with the boyfriend. The caller also claimed that needles
were present in the hotel room with the children. Law enforcement found both
methamphetamine and marijuana in the room. Mother was arrested for drug possession
and domestic assault. Meanwhile, Father was in jail for drug possession.
That same day, DCS filed an emergency petition in the Juvenile Court for Dickson
County, Tennessee, to adjudicate the children dependent and neglected and grant
temporary legal and physical custody of the children to DCS. According to the petition,
in addition to concerns about drug abuse, DCS discovered that the children had an
extensive truancy record. The juvenile court granted temporary legal and physical
custody of the children to DCS.
On April 25, 2016, DCS, with the participation of the parents, created a
permanency plan, with the goals of returning the children to Mother or placing them with
relatives. For both parents, the plan concentrated on remedying their problems with
substance abuse and their pending criminal charges. The plan anticipated both parents
would submit to random drug screens, resolve their criminal charges, avoid new criminal
charges, and follow all probation requirements. In addition, the plan required Mother to
complete an inpatient substance abuse program and follow recommendations and
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continue outpatient therapy for her mental health issues. And the plan required Father to
complete an alcohol and drug assessment and follow any recommendations.
The plan granted the parents four hours per month of therapeutic visitation with
the children. The parents were required to follow all parenting recommendations made
by the supervisor and demonstrate their ability to parent the children appropriately. The
parents were also expected to obtain and maintain both housing and employment and
provide verification. Finally, the parents were each required to pay $100 per month in
child support.
At the preliminary hearing on June 22, 2016, the court ratified the permanency
plan and added two new requirements. And the court ordered both parents to submit to
an alcohol and drug assessment before the next court date and to pass a drug screen
before each visit with the children.
Both Mother and Father completed the required alcohol and drug assessment.
Mother’s assessment recommended that she complete a 12-step program. And Father
was advised to complete a two-week relapse prevention course. Neither parent complied
with the recommendations. Mother failed multiple drug screens throughout the summer
and fall of 2016. And she was arrested for possession again in August. Father was
incarcerated throughout much of July, August, and September, and after his release, he
failed two drug screens in November.
Neither parent appeared for the adjudicatory hearing. Father was in jail; Mother
claimed to lack transportation. So the hearing proceeded as to Mother only. On
November 9, 2016, the court adjudicated the children dependent and neglected due to
drug exposure.
On January 17, 2017, DCS revised the permanency plan.1 Based on the parents’
lack of progress, the revised plan changed the goal from returning the children to
adoption. Both parents were on probation, and they had not addressed their substance
abuse issues. Mother had also failed to continue her outpatient therapy.
The revised plan also eliminated some requirements while adding others. The
revised plan no longer required stable housing or employment. And instead of an
inpatient substance abuse program, the revised plan required Mother to submit to random
drug screens, complete a 12-step program, continue her outpatient therapy, comply with
her probation, and avoid incurring new criminal charges. Similarly, the revised plan
required Father to submit to random drug screens, resolve his pending criminal charges,
comply with his probation, avoid new charges, and complete a two-week relapse
1
At trial, the family service worker testified that the permanency plan was also revised in
October 2016. But the October plan is not in the record on appeal.
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prevention course. The requirements to pay child support and demonstrate appropriate
parenting remained the same.
At a review hearing on February 22, 2017, the court learned that the parents had
not demonstrated appropriate parenting during visitations. So the court suspended
visitation until both parents completed a parenting assessment.
The parents had no contact with the children for the next six months. Mother
eventually completed a parenting assessment and an online parenting course, allowing
her to resume visits on September 27, 2017. Father also completed his assessment and
parenting classes. But due to repeated incarcerations, Father did not have another visit
until December 15, 2017.
On May 1, 2017, DCS filed a petition to terminate the parental rights of both
parents. DCS asserted four statutory grounds for termination against Mother:
abandonment by failure to provide a suitable home, abandonment by incarcerated parent,
substantial noncompliance with the permanency plan, and persistence of conditions.
DCS asserted two statutory grounds for termination against Father: abandonment by
incarcerated parent and substantial noncompliance with the permanency plan.
B.
The termination hearing proceeded without the parents in attendance. Although
each of their attorneys requested a continuance, the court denied the requests; both
Mother and Father had failed to appear at the previous setting of the case the month
before. And the case had been continued previously at Mother’s and Father’s request.
DCS offered several witnesses in support of the petition. The family service
worker (“FSW”) explained that neither parent adequately addressed their substance abuse
issues. Mother only attended orientation for her 12-step program. And Father did
nothing at all. According to the FSW, both parents continued throughout the case to test
positive for illegal substances. And as recently as the day before trial, Mother admitted
to the FSW that she knew she had a substance abuse problem; she just was not ready to
address it.
According to the FSW, the parents’ conduct made it difficult, if not impossible, for
her to provide necessary services. The parents did not remain in contact with DCS. They
often failed to return phone calls or provide a current address. Father’s frequent
incarcerations also impeded the FSW’s ability to provide services. The Dickson County
jail would not allow her to arrange for services while Father was in jail.
Inability to maintain contact with the parents also interfered with visitation. From
the outset, the care coordinator had difficulty contacting either parent to schedule visits.
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And even after visits were scheduled, the parents were often late, or they would call to
cancel or change location at the last minute. The inconsistency hurt the children. Over
the two years the children had been in foster care, Mother only visited fifteen times and
Father, nine.
Despite two years of therapeutic visitation, Mother’s and Father’s parenting skills
never improved. During visits, the children were often defiant and disrespectful. The
care coordinator attributed the children’s behavior to a lack of parenting skills. Although
she clearly loved her children, Mother failed to set boundaries or redirect the children
when they became unruly. And she made the children false promises. Father had similar
issues with setting boundaries, and he also demonstrated insensitivity to the children’s
feelings, especially Julian’s. His focus was more on himself than the children.
Disruptive behavior often followed contact with the parents. After the parents’
phone calls, the children had difficulty listening and following directions. They also
became aggressive with each other and their foster siblings.
Both children entered foster care with academic, dental, and emotional issues. But
while in foster care, many of their issues were remedied. Caydence had made huge
strides academically and was thriving in her current environment. Julian was also more
successful at school and had discovered a talent for sports. The children had received
dental work, and Julian had been taught how to brush his teeth.
Yet not all of the children’s issues could be easily remedied. Shortly after entering
foster care, Julian revealed to his in-home therapist that Father had physically abused
him. Caydence had witnessed the abuse. And in the fall of 2016, Julian was hospitalized
for psychotic symptoms. He was diagnosed with depression and psychosis. With
medication and therapy, his psychotic episodes greatly decreased. But he continued to
struggle to process his feelings about Father.
His therapist explained that, emotionally, Julian was much younger than his
chronological age. About a year before trial, Julian no longer wanted to see Father. And
the foster mother explained that his behavior regressed significantly after contact with
Father. He became aggressive and angry and sometimes had psychotic episodes. The
therapist opined that contact with Father was not beneficial for Julian and that Father and
son did not have a healthy relationship.
On the other hand, the therapist agreed that both children love Mother. And she
loves them. In the therapist’s opinion, if Mother could make the necessary adjustments in
her life, the children would benefit from a continued relationship with her. But, with
their lengthy stay in foster care, the children had grown increasingly frustrated over both
parents’ lack of progress.
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The foster mom described the close relationship that had developed between her
family and the children over the past two years. She expressed a desire to adopt the
children should that become a possibility.
The juvenile court found that DCS had proven all alleged grounds for termination
by clear and convincing evidence. The court further found clear and convincing evidence
that termination of parental rights was in the children’s best interest. As a consequence,
the court terminated both Mother’s and Father’s parental rights.
II.
A parent has a fundamental right, based in both the federal and State constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at
250. Statute identifies those circumstances in which the State’s interest in the welfare of
a child justifies interference with a parent’s constitutional rights. See Tenn. Code Ann.
§ 36-1-113(g) (2017).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
First, parties seeking termination of parental rights must prove the existence of at least
one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1). Second, if one or more statutory grounds for
termination are shown, they then must prove that terminating parental rights is in the
child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,
215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). This heightened burden of proof serves “to minimize the possibility of erroneous
decisions that result in an unwarranted termination of or interference with these rights.”
Id. “Clear and convincing evidence” leaves “no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the
fact-finder’s mind regarding the truth of the facts sought to be established. In re Bernard
T., 319 S.W.3d at 596.
On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
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otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de
novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct.
App. 2007).
A. GROUNDS FOR TERMINATION
1. Persistence of Conditions
DCS concedes on appeal that one ground for termination of Mother’s parental
rights relied on by the court, persistence of conditions, was not applicable. After
reviewing the record, we agree.
At the time the petition was filed, the ground of persistence of conditions applied
when the “child has been removed from the home of the parent . . . by order of a court for
a period of six (6) months.” Tenn. Code Ann. § 36-1-113(g)(3). The six-month period
has generally been measured from the order adjudicating the child dependent and
neglected. See In re Audrey S., 182 S.W.3d 838, 875-76 (Tenn. Ct. App. 2005). In this
case, although the adjudicatory hearing on the petition for dependency and neglect was
held on September 29, 2016, the juvenile court did not enter an order on the hearing until
November 9, 2016, less than six months before the petition was filed. So the statutory
ground of persistence of conditions could not apply.
2. Abandonment
Another statutory ground for termination of parental rights is “[a]bandonment by
the parent.” Tenn. Code Ann. § 36-1-113(g)(1). Statute recognizes “five alternative
definitions for abandonment as a ground for the termination of parental rights.” In re
Audrey S., 182 S.W.3d at 863; see also Tenn. Code Ann. § 36-1-102(1)(A) (2017)
(defining the term “abandonment”). The juvenile court concluded that Mother
abandoned the children under the second definition, abandonment by failure to provide a
suitable home, and that both parents abandoned the children under the fourth definition,
abandonment by an incarcerated parent. See Tenn. Code Ann. § 36-1-102(1)(A)(ii), (iv).
a. Failure to Establish a Suitable Home
A child has been abandoned under the second statutory definition if the child has
been removed from the home of a parent as a result of a petition filed in juvenile court,
which ultimately results in a finding that the child was dependent and neglected, and
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for a period of four (4) months following the removal, the department . . .
has made reasonable efforts to assist the parent . . . to establish a suitable
home for the child, but . . . the parent . . . ha[s] made no reasonable efforts
to provide a suitable home and ha[s] demonstrated a lack of concern for the
child to such a degree that it appears unlikely that [the parent] will be able
to provide a suitable home for the child at an early date.
Id. § 36-1-102(1)(A)(ii). DCS’s efforts to assist the parent “may be found to be
reasonable if such efforts exceed the efforts of the parent . . . toward the same goal.” Id.
In evaluating reasonable efforts, we are concerned with the time period from April
5, 2016, the day following the children’s removal, to August 5, 2016. DCS had the
burden of proving that its efforts were reasonable under the circumstances. In re Hannah
H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10,
2014).
On appeal, DCS concedes that its proof of reasonable efforts was insufficient. We
agree. At trial, the FSW was unaware of any efforts by DCS to assist Mother with
housing during the relevant four-month period.
b. Abandonment by an Incarcerated Parent
The fourth definition of “abandonment” applies in cases in which the parent is
incarcerated or had been incarcerated within the four-month period preceding the filing of
the petition to terminate. Tenn. Code Ann. § 36-1-102(1)(A)(iv). On appeal, DCS
concedes that this ground for termination was inapplicable to Mother. We agree.
Although DCS submitted evidence at trial of Mother’s criminal history, including a list of
charges, the record lacks proof that Mother was incarcerated during the relevant time
period.
Because Father was incarcerated when the termination petition was filed, however,
we must consider whether this record contains clear and convincing evidence that this
ground for termination has been proven as to Father. Abandonment by an incarcerated
parent “contains two distinct tests.” In re Audrey S., 182 S.W.3d at 865. One test
examines pre-incarceration visitation and support, and the other examines the pre-
incarceration conduct of the parent. The incarcerated or formerly incarcerated parent is
deemed to have abandoned a child if he or she:
either has willfully failed to visit or has willfully failed to support or has
willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent’s
. . . incarceration, or the parent . . . has engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child.
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Tenn. Code Ann. § 36-1-102(1)(A)(iv).
i. Willful Failure to Support
The juvenile court found that Father had willfully failed to support or make
reasonable payments toward the support of the children during the four-month period.
While it was undisputed that Father never paid any child support, proof that Father’s
failure to support was willful is lacking. The question of willfulness “is a question of
law.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013). A parent’s failure
to support a child is not willful if the parent is financially unable to do so. In re Aaron E.,
No. M2014-00125-COA-R3-PT, 2014 WL 3844784, at *6 (Tenn. Ct. App. Aug. 4,
2014). In making a willfulness determination, the court must review a parent’s means,
which includes both income and available resources for purposes of support. See In re
Adoption of Angela E., 402 S.W.3d at 641.
This record contains no evidence of Father’s income, expenses, or available
resources during the relevant time period. We cannot conclude that the evidence is clear
and convincing that the failure to support was willful because DCS failed to establish that
Father had the ability to pay support.
ii. Wanton Disregard for the Welfare of the Children
The juvenile court also found that Father had abandoned the children by exhibiting
wanton disregard for the welfare of his children. “Wanton disregard” is not a defined
term. “[A]ctions that our courts have commonly found to constitute wanton disregard
reflect a ‘me first’ attitude involving the intentional performance of illegal or
unreasonable acts and indifference to the consequences of the actions for the child.” In re
Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App.
June 9, 2015). “We have repeatedly held that probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
867-68. “[T]he parent’s incarceration [is] a triggering mechanism that allows the court to
take a closer look . . . to determine whether the parental behavior that resulted in
incarceration is part of a broader pattern of conduct that renders the parent unfit or poses
a risk of substantial harm to the welfare of the child. Id. at 866.
We conclude that DCS has proven by clear and convincing evidence that Father’s
pre-incarceration conduct exhibited a wanton disregard for the welfare of his children.
DCS submitted an extensive list of criminal charges against Father. Although many of
the charges were dismissed, Father was found guilty of escape from custody, violating
the financial responsibility law, and driving on a suspended or revoked license. See
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Tenn. Code Ann. §§ 39-16-605 (2018) (escape), 55-12-139 (2012) (violation of the
financial responsibility law), 55-50-504 (2012) (driving on a suspended or revoked
license). And he was indicted by a grand jury for theft of a cell phone. There was also a
report of physical abuse perpetrated by Father against one of the children. Father’s
repeated incarcerations coupled with the evidence of physical abuse and his unresolved
substance abuse issues leave no serious doubt that Father was either unfit to parent or
posed a risk of substantial harm to the children’s welfare.
3. Substantial Noncompliance with the Permanency Plans
The juvenile court also found clear and convincing evidence that both parents
were in substantial noncompliance with the requirements of the permanency plans.
Before analyzing whether a parent complied with the permanency plan, the court must
find that the permanency plan requirements that the parent allegedly failed to satisfy are
“reasonable and are related to remedying the conditions that necessitate foster care
placement.” Tenn. Code Ann. § 37-2-403(a)(2)(C) (2014); see also In re Valentine, 79
S.W.3d at 547. If the permanency plan requirements are reasonable, the court must then
determine if the parent’s noncompliance was substantial. Id. at 548-49. The unsatisfied
requirements must be important in the plan’s scheme. Id. A “[t]rivial, minor, or
technical” deviation from the permanency plan’s requirements does not qualify as
substantial noncompliance. In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004).
We conclude that the permanency plan requirements here were reasonable and
related to the conditions that necessitated foster care. The children entered foster care
after drugs were found in their home and both their parents were incarcerated. The most
recent permanency plan required Mother and Father to submit to alcohol and drug
assessments and follow the recommendations, submit to random drug screens, resolve
their criminal charges, comply with probation requirements, and avoid incurring new
charges. All of these requirements were designed to remedy the parents’ substance abuse
and legal issues. Mother was also required to continue her outpatient therapy. And both
parents were expected to pay child support, demonstrate appropriate parenting, and
follow the recommendations from the provider of therapeutic visitation.
Next, we must determine whether each parent’s noncompliance is substantial in
light of the importance of the requirements to the overall plan. See In re Valentine, 79
S.W.3d at 548-49. Our focus is on the parent’s efforts to comply with the plan, not the
achievement of the plan’s desired outcomes. In re B.D., No. M2008-01174-COA-R3-PT,
2009 WL 528922, at *8 (Tenn. Ct. App. Mar. 2, 2009). “[A] permanency plan is not
simply a list of tasks with boxes to be checked off before custody is automatically
restored. Rather, it is an outline for doing the things that are necessary to achieve the
goal of permanency in children’s lives.” In re V.L.J., No. E2013-02815-COA-R3-PT,
2014 WL 7418250, at *8 (Tenn. Ct. App. Dec. 30, 2014). “[P]arents must complete their
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responsibilities in a manner that demonstrates that they are willing and able to resume
caring for their children in the long-term, not on a month-to-month basis.” Id.
We conclude that DCS proved by clear and convincing evidence that Mother and
Father were in substantial noncompliance with the requirements of the permanency plan.
One of the main concerns throughout this case was the parents’ substance abuse. They
made very little effort to address this problem. Although they both completed an alcohol
and drug assessment, neither parent followed the recommendations. Mother was told to
complete a 12-step program. She only went to orientation. And as recently as the day
before trial, she admitted that she was not ready to face her issues. Father failed to even
start a relapse prevention course. Even after their assessments, the parents continued to
test positive for illegal substances.
Both parents also failed to complete other permanency plan requirements. Mother
did not continue her outpatient therapy. And Father repeatedly violated his probation
requirements. Neither parent made any progress in demonstrating appropriate parenting
despite two years of instruction. And they never paid any child support.
B. BEST INTEREST OF THE CHILD
Because “[n]ot all parental misconduct is irredeemable,” our parental termination
“statutes recognize the possibility that terminating an unfit parent’s parental rights is not
always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.
2005). So even if a statutory ground for termination is established by clear and
convincing evidence, we must also determine whether termination of parental rights is in
the child’s best interests. Tennessee Code Annotated § 36-1-113(i) lists nine factors that
courts may consider in making a best interest analysis. The “factors are illustrative, not
exclusive, and any party to the termination proceeding is free to offer proof of any other
factor relevant to the best interests analysis.” In re Gabriella D., 531 S.W.3d 662, 681
(Tenn. 2017). In reaching a decision, “the court must consider all of the statutory factors,
as well as any other relevant proof any party offers.” Id. at 682.
The focus of this analysis is on what is best for the child, not what is best for the
parent. In re Marr, 194 S.W.3d at 499. Additionally, the analysis should take into
account “the impact on the child of a decision that has the legal effect of reducing the
parent to the role of a complete stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). Although “[f]acts relevant to a
child’s best interests need only be established by a preponderance of the evidence, . . . the
combined weight of the proven facts [must] amount[] to clear and convincing evidence
that termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d 507,
535 (Tenn. 2016).
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After considering all the statutory factors, the juvenile court determined that
termination of parental rights was in the children’s best interest. The court emphasized
the parents’ lack of adjustment in circumstances over a two-year period, their inconsistent
visitation, and the children’s strong bond with the foster family. Mother challenges the
court’s finding that she failed to make changes in her life. She also contends that the
juvenile court gave insufficient weight to her strong bond with her children.
The first two statutory factors look at the parent’s current lifestyle and living
conditions. The first factor focuses on whether the parent “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 [parent’s] home.” Tenn. Code Ann. § 36-1-113(i)(1). The evidence simply
does not support Mother’s claim that she made significant changes in her life. Mother
and Father failed to follow the recommendations from their alcohol and drug
assessments. They continued to test positive for illegal drugs. They were arrested
repeatedly. They also made no appreciable progress in improving their parenting skills.
The evidence does not preponderate against the court’s finding that this factor favored
termination.
The second factor considers the potential for lasting change. See id. § 36-1-
113(i)(2) (asking “[w]hether the parent . . . 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.”). In two years, neither parent
made an appreciable change. And DCS’s efforts to assist them were reasonable under the
circumstances. This factor also favors termination.
Under the third factor, we consider whether the parents visited the children
regularly. See id. § 36-1-113(i)(3). The evidence does not preponderate against the
court’s finding that the parents’ visitation was inconsistent. In two years, Mother visited
fifteen times and Father nine.
The fourth factor considers “[w]hether a meaningful relationship has otherwise
been established between the parent . . . and the child.” Id. § 36-1-113(i)(4). The court
did not specifically mention this factor in its decision. And we agree that the evidence
supports a finding that Mother and the children enjoy a meaningful relationship. So this
factor militates against terminating Mother’s parental rights. But with regard to Father,
the evidence was clear that Father did not enjoy a meaningful relationship with the
children. Julian wanted nothing to do with him, and Caydence was ambivalent.
The fifth factor evaluates the effect a change in caregivers would have on the
child’s emotional, psychological, and medical condition. Id. § 36-1-113(i)(5). DCS’s
witnesses described the impact of a change in caregivers as detrimental or challenging.
The evidence does not preponderate against the court’s finding that this factor favors
termination. The children have bonded with their foster family. And during their time
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with the foster family, both children have made significant strides. But Mother and
Father’s parenting skills have never improved. Removing the children from their current
environment risks a return to their previous difficulties. This is especially true for Julian
who suffers from depression and psychosis and continues to struggle with the aftermath
of abuse.
Under the sixth factor, the court determines whether the parent or another person
residing with the parent “has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child” or another person in the home. Id.
§ 36-1-113(i)(6). The court also did not address this factor. But Julian reported past
physical abuse by Father. And the care coordinator described some verbal abuse during
visitation. This factor favors termination of Father’s parental rights.
The seventh factor focuses on the parent’s home environment and ability to be a
safe and stable caregiver. See id. § 36-1-113(i)(7) (“Whether the physical environment of
the parent’s . . . home is healthy and safe, whether there is criminal activity in the home,
or whether there is such use of [the intoxicants] as may render the parent . . . consistently
unable to care for the child in a safe and stable manner.”). This record is replete with
evidence that neither parent is currently able to be a safe and stable caregiver. The
parents’ failure to address their substance abuse issues renders them unable to
consistently care for the children in a safe and stable manner.
The eighth statutory factor evaluates the parent’s mental and emotional health,
asking “[w]hether 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.” Id. § 36-1-113(i)(8). The record contains
very little evidence concerning either parent’s mental health. Although Mother was
receiving outpatient therapy at the outset of the case, DCS offered no proof as to how
Mother’s mental health impacted her ability to parent.
The ninth factor looks at the parent’s child support history. See id. § 36-1-
113(i)(9). Neither parent paid any child support while the children were in foster care.
This factor favors termination.
We conclude that DCS proved, by clear and convincing evidence, that termination
of parental rights was in the children’s best interest. Although the court may have given
insufficient weight to Mother’s relationship with her children, the combined weight of the
proven facts amount to clear and convincing evidence that termination of both Mother’s
and Father’s parental rights is in the children’s best interests.
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III.
The record contains clear and convincing evidence to support terminating the
parental rights of Mother and Father on the ground of substantial noncompliance with the
permanency plan. We also find clear and convincing evidence that Father abandoned his
children by exhibiting wanton disregard for their welfare. The record does not support
the other statutory grounds for termination relied on by the juvenile court. The record
also contains clear and convincing evidence that termination is in the children’s best
interest. Thus, we affirm the judgment terminating parental rights as modified.
_________________________________
W. NEAL MCBRAYER, JUDGE
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