In Re: Michael B., Jr. ( 2017 )

08/11/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 3, 2017
IN RE MICHAEL B., JR., ET AL
Appeal from the Juvenile Court for Washington County
No. 46-509, 46-510 Sharon M. Green, Judge
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No. E2017-00486-COA-R3-PT
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The trial court found clear and convincing evidence to terminate Mother’s parental rights
to her two children on the grounds of abandonment by failure to establish a suitable
home, substantial noncompliance with permanency plans, and persistence of conditions.
The trial court also found clear and convincing evidence that termination was in the
children’s best interest. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
Holly L. Booksh, Johnson City, Tennessee, for the appellant, Felicia A.
Herbert H. Slatery, III, Attorney General and Reporter; W. Derek Green, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
Background
On December 23, 2015, Petitioner/Appellee the Tennessee Department of
Children’s Services (“DCS”) filed a petition to terminate the parental rights of Felicia A.
(“Mother”) to her children, Michael B. and Melody B.,1 born in 2003.2 The petition
alleged that the juvenile court had entered an order awarding DCS temporary legal
custody of the children on January 7, 2015 and subsequently found the children to be
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
The children’s father surrendered his parental rights and is not at issue in this appeal.
dependent and neglected by order of March 16, 2015. The petition alleged grounds of
abandonment by failure to establish a suitable home, substantial noncompliance with
permanency plans, and persistence of conditions.
The trial court thereafter appointed a guardian ad litem for the children and an
attorney for Mother. On June 2, 2016, Mother filed a response in opposition to the
termination petition. A trial took place over three days in December 2016 and January
2017. Two permanency plans drafted by DCS, agreed to by Mother, and ratified by the
trial court were entered as exhibits. The first plan, created and ratified in April 2015,
required that Mother: (1) complete a clinical parenting assessment, inform DCS of the
results, follow all recommendations, and provide documentation of any completion of
recommendations to DCS; (2) attend visitation and display “learned parenting skills”; (3)
complete a psychological assessment, share the results with DCS, follow all
recommendations, and provide documentation of any completion of recommendations to
DCS; (4) complete an alcohol and drug assessment, inform DCS of the results, follow all
recommendations, and provide documentation of any completion of recommendations to
DCS; (5) complete intensive outpatient alcohol and drug treatment and follow any
recommendations from any drug treatment program; (6) submit to random drug screens;
(7) obtain legal income or government assistance to provide for the children; (8) obtain
documentation regarding any medical issues that would prevent employment; (9) seek
help from DCS to apply for disability; and finally, (10) participate in homemaker services
provided by DCS and provide a safe and clutter-free home for the children. A second
parenting plan was created in August 2015 and ratified in October 2015. This plan
generally contained the same requirements for Mother, with the addition of obtaining
additional mental health, teen parenting, and anger management counseling.
Nine DCS workers, service providers, or therapists testified on behalf of DCS
regarding their involvement with the family. First, Julie Lowry, a DCS investigator and
former assessment worker, testified that Mother and the children first became involved
with DCS in 2012, but that case was ultimately closed. The instant matter instead began
in July 2014 when DCS received a referral regarding the condition of the family’s home
and the children not attending school due to having head lice. Throughout DCS’s
involvement, Mother lived in a home owned by Mother’s father and later inherited by
Mother.3 Ms. Lowry conducted ten home visits of Mother’s home between July 2014 and
January 2015. During these visits, Ms. Lowry and other workers observed dog feces and
garbage throughout the home, roaches and other bugs, mold, excessive clutter, gaps in the
walls of the home, lack of food, and lack of heat in some places.
Another DCS worker visited the home after the removal of the children, Jessica
Trivette. Of Ms. Trivette’s ten attempted visits, Mother cancelled or was not present for
3
As discussed in detail, infra, for a time in the summer of 2015, Mother lived with her sister or
brother due to the condition of the home being unsuitable.
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at least half of the visits.4 Ms. Trivette testified that when she was able to view the home,
its condition was largely unchanged, with some improvement that later “digressed.”
Indeed, it was undisputed at trial that the home currently had no working electricity.
The final DCS caseworker to be placed on this case, Diana McKamey, testified
that she made eight unsuccessful attempts to inspect the home in 2016. Ms. McKamey
made one successful home visit in September 2016; during this visit, the electricity in the
home did not work and Ms. McKamey observed that the home was dirty, that there were
“lots of bugs,” and that old food was left on the porch of the home.
Much of the DCS workers’ testimony concerned their inability to maintain contact
with Mother. Over the course of the time of DCS’s involvement, Mother had several
telephone numbers and sometimes resided with her sister or brother for months at a time.
DCS workers and service providers testified that they called and texted Mother’s
numbers, as well as the numbers for Mother’s fiancé, father, and sister, often to no avail.
On multiple occasions, DCS workers went to Mother’s home. Because Mother was often
not home,5 they left notes for Mother. Sometimes, Mother would make contact with DCS
following these attempts; sometimes Mother would not. Ms. Trivette testified that
although Mother maintained consistent contact with her shortly following the removal of
the children in January 2015, her ability to successfully contact Mother waned. As such,
Ms. Trivette testified that she was completely unable to speak with Mother between April
28, 2015 and June 17, 2015, despite repeated attempts. Shortly before trial on the
termination petition began, Ms. McKamey also testified that she struggled to reach
Mother. When she did contact mother in November 2016 and made recommendations,
Mother rebuffed Ms. McKamey’s suggestions as “crap” that Mother did not need.
Although Mother was informed that a family team meeting was taking place days before
the trial in December 2016, Mother refused offers for transportation assistance and did
not attend the meeting.
Several DCS workers also testified about Mother’s drug abuse. Mother was
administered a number of drug tests over the years of DCS’s involvement. Although
Mother sometimes passed drug tests, DCS workers testified that Mother failed drug
screens both prior to the removal of the children and later in January 2015, April 2015,
March 2016, and December 2016, variously for marijuana, oxycodone, lortab,
amphetamines, cocaine, opiates, bonxoylecgonine, morphine, oxymorphine, oxycodone,
and hydrocodone. Frequently, Mother also failed to report for scheduled drug testing. In
October 2015 and March 2016, Mother admitted to using illegal drugs. Even at the time
of trial at the end of January 2017, Mother admitted that she likely could not pass a drug
4
Of the ten visits, Mother cancelled one visit, Mother was not home even though a visit was
scheduled for two visits, and Mother was not home for three unscheduled visits.
5
Interestingly, the DCS workers were often informed that Mother was out doing laundry when
they called at the home. Mother testified at trial, however, that the home has laundry facilities.
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test because she had used marijuana three weeks prior. Mother claimed to have
prescriptions for some of the medications for which she tested positive, but DCS workers
testified that they never received proof of the prescriptions and no documentation was
submitted during trial to support Mother’s claims.
In order to combat Mother’s mental health and substance abuse issues, DCS
provided Mother with several assessments, which were completed by Mother, and several
treatment options, none of which had been successfully completed by the time of trial.
After Mother’s completion of an alcohol and drug assessment in April 2015, it was
recommended that Mother attend intensive outpatient alcohol and drug treatment. Mother
enrolled in a program in April 2015, but terminated her participation that summer stating
that the program “was not for me.” Mother also successfully completed a clinical
parenting assessment in April 2015. A psychological assessment was scheduled for early
April 2015, but Mother did not appear. The assessment was eventually completed in June
2015.
Pursuant to the recommendations from the assessments, DCS set up in-home
alcohol and drug treatment services for Mother, beginning in August 2015. Mother was
required to simply be home to receive the services when scheduled. Despite this minimal
effort required of Mother, Mother was home to complete services only for four out of ten
scheduled services. As such, the service provider testified that Mother made no
significant progress. These services were terminated in September 2015 due to Mother’s
noncompliance. Although services were reauthorized by DCS in September 2016—this
time to be completed inpatient—the service provider testified that he was unable to
obtain contact with Mother to initiate the services. Mother testified that her failure to
complete services with this provider related to her dislike of the service provider, who
she claimed attempted to perform services at inappropriate times and locations.
DCS also referred Mother to three different inpatient drug treatment programs
after Mother admitted to relapsing in October 2015. DCS first referred Mother to the
Magnolia Ridge treatment program where Mother was placed on the waiting list. At trial,
Mother claimed to still be on the waiting list even though years had passed. When asked
what effort Mother had made to attend treatment at Magnolia Ridge, Mother admitted
that she had not really thought about it for some time. In the same month, Mother left a
second treatment program, scheduled to take at least twelve days to complete, after two
days due to medical issues; Mother never returned. Mother claimed that she attempted to
return but was unable to do so because there was a miscommunication regarding her
transportation. After this missed attempt, however, it does not appear that Mother made
another effort to return to this program. Mother blamed her failure to make additional
effort to return on the death of her father, which occurred approximately two months later
in January 2016. As previously discussed, DCS authorized Mother’s attendance at
another inpatient program in September 2016, but Mother missed her first appointment
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and thereafter failed to reschedule the appointment or otherwise maintain contact with the
service provider.
Due to the issues with Mother’s home, DCS also provided Mother with
homemaker and parenting services through Foundations for Life Principles, beginning in
April 2015. Rebecca Roosa, who began working with Mother in September 2015,
testified that her purpose was to help Mother with cleaning and de-cluttering the home,
managing medications, applying for jobs, obtaining transportation or learning to use
public transportation, filing for disability benefits, going to mental health appointments,
and helping Mother regain electricity in the home. Foundations for Life also provided
Mother with parenting education. In order to receive these services, Mother only had to
be available in her home. Nevertheless, Mother often missed appointments and Ms.
Roosa was unable to maintain consistent contact with Mother. Foundations for Life
services were eventually terminated in December 2015 based on Mother’s
noncompliance.
At trial, Mother testified that her substance abuse issues stemmed from mental
issues related to grief and stress. Mother denied, however, that she was “self-medicating.”
Mother identified several stressful events during the course of DCS’s involvement in this
case, including: (1) the death of Mother’s sister in February 2015; (2) the death of
Mother’s father in January 2016; (3) Mother’s unplanned pregnancy in the spring of
2016; and (4) the death of Mother’s infant in September 2016. According to Mother, she
had not had time to grieve the death of her child and she was unable to make progress due
to the stressful events in her life. At the time of trial, Mother testified that she had
recently enrolled in motivational and parenting classes and had begun case management
at a mental health facility. Mother testified, however, that she had attended only a single
class at the time of her testimony.
Mother indicated that she was not currently employed and that at the time of the
final day of trial, over four months had passed from the death of her child, with very little
progress made on the tasks required to be completed by Mother. Mother stated that she
suffered from a serious condition often affecting her health, but did not testify that this
condition made her unable to maintain employment. Indeed, Mother testified that she had
worked for approximately one month at a fast food restaurant and that she was planning
to begin working at another restaurant soon. Mother admitted that her home currently had
no electricity and indeed had not had working electricity as early as May 2016. Around
May 2016, Mother testified that she became aware that she pregnant unexpectedly, which
caused her some mental health issues. Due to the pregnancy and the lack of electricity,
Mother spent considerable time in the summer of 2016 living with her brother or sister.
At this time, DCS workers had difficulty contacting Mother. Mother testified, however,
that she was home approximately three nights per week and that she informed DCS of her
temporary move, albeit later in the summer of 2016. Mother also stated that she would
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be able to turn on the electricity in the home once she received her tax return in early
2017.
With regard to income at the time of trial, Mother testified that she sometimes
works as a care-giver for adults and that her fiancé works as well. Additionally, prior to
his death, Mother testified that her father helped her financially. Mother admitted that
despite being required to do so in the permanency plan, she had not paid child support for
the children.
Mother testified that she consistently attended visitation until the terms were
changed making it more difficult to schedule the visits. At trial, the evidence showed that
other than a few missed or rescheduled visitations, Mother had visited with the children
often and typically consistently. Mother and those who witnessed visitation both testified
that Mother had a strong and loving bond with the children. A service provider who
witnessed visitation testified that Mother sometimes brought others to the visitation, but
stopped this behavior when asked. The service provider also testified that Mother
sometimes spoke of topics such as the litigation and was required to be redirected. The
service provider admitted, however, that often the children had to be redirected from
certain topics as well. Based solely on the visits, the service provider provided Mother
with periodic progress reports indicating that there were no safety issues that would
prevent reunification. The service provider also testified that there was no impediment to
unsupervised visitation with the children should the termination petition not be granted.
The children’s therapists and foster mother both testified about the children’s
progress after their removal. The children’s therapists both testified that the children were
making progress, but still had issues that required consistent therapy. Michael’s therapist
indicated that his need for stability was great and that he needs things to be settled with
Mother “one way or the other.” Melody’s therapist testified that she suffers from stress
related to being removed from her biological family and that her treatment focuses on
accepting the circumstances as they are. Although Melody was only placed in therapy
after the removal, Mother had engaged a therapist for Michael while he was still in her
custody to treat his attention deficit hyperactivity disorder.
The children’s therapeutic foster mother testified that she was trained to provide
additional in-home therapeutic care for the children. Although there had been an issue
with Michael’s behavior that had caused the children to be removed from foster mother’s
care for a time, the children had returned to foster mother’s care, in part because the
children wanted to return. Foster mother testified that the children were making
improvements and that her family was open to adopting the children should termination
be granted. Foster mother testified that the children are doing well and making
improvements, but that they are disappointed when Mother misses scheduled telephone
calls or is distracted by other individuals during the phone calls. At least once, foster
mother testified that she believed Mother to be under the influence during a phone call.
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At the conclusion of trial, the trial court orally ruled in favor of DCS. Thereafter,
on February 9, 2017, the trial court entered a detailed and thorough order finding that
DCS had established clear and convincing evidence of Mother’s failure to establish a
suitable home, Mother’s substantial noncompliance with permanency plans, and
persistence of conditions. The trial court likewise found clear and convincing evidence
that termination was in the children’s best interests.
Issues Presented
Mother raises four issues in this case, which we summarize:
1. Whether the trial court erred in finding clear and convincing evidence that grounds
existed to terminate Mother’s parental rights.
2. Whether the trial court erred in finding clear and convincing evidence that
termination was in the children’s best interest.
Analysis
According to the Tennessee Supreme Court:
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 (2000); Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re
Adoption of Female child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v.
Hawk, 855 S.W.2d 573, 578–79 (Tenn. 1993). But parental rights, although
fundamental and constitutionally protected, are not absolute. In re Angela
E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
as parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).
Our termination statutes identify “those situations in which the 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)). A person seeking to terminate parental rights must prove both the existence of
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one of the statutory grounds for termination and 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).
Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the
grounds for termination and the best interest inquiry must be established by clear and
convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); 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 the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn.
Ct. App. 2004). Such evidence “produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established.” Id. at 653.
As our supreme court opined:
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 [387,]
393 [(Tenn. Ct. App. 2009)] (quoting In re Adoption of A.M.H., 215
S.W.3d [793], 810 [(Tenn. 2007)]). 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.
Carrington H., 2016 WL 819593, at *12.
When 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. See 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). The weight, faith,
and credit to be given to any witness’s testimony lies in the first instance with the trier of
fact, and the credibility accorded will be given great weight by the appellate court.
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
Grounds for Termination
The trial court found three grounds for terminating Mother’s parental rights: (1)
abandonment by failure to establish a suitable home pursuant to Tennessee Code
Annotated section 36-1-102(1)(A)(ii); (2) persistence of conditions pursuant to Tennessee
Code Annotated section 36-1-113(g)(3); and (3) substantial noncompliance with the
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permanency plans pursuant to Tennessee Code Annotated section 36-1-113(g)(2). We
begin with abandonment by failure to establish a suitable home.
Abandonment by Failure to Establish a Suitable Home
Pursuant to Tennessee Code Annotated section 36-1-113(g)(1), “[a]bandonment
by the parent or guardian” constitutes a ground for termination of a parent’s parental
rights. Tennessee Code Annotated section 36-1-102, in turn, provides several definitions
for abandonment. In this case, the petition alleged, and the trial court found,
abandonment by failure to establish a suitable home under Tennessee Code Annotated
section 36-1-102(1)(A)(ii). This section provides that abandonment may be found where:
The child has been removed from the home of the parent or parents or the
guardian or guardians as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as defined
in § 37-1-102, and the child was placed in the custody of the department or
a licensed child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds, that the
department or a licensed child-placing agency made reasonable efforts to
prevent removal of the child or that the circumstances of the child’s
situation prevented reasonable efforts from being made prior to the child’s
removal; and for a period of four (4) months following the removal, the
department or agency has made reasonable efforts to assist the parent or
parents or the guardian or guardians to establish a suitable home for the
child, but that the parent or parents or the guardian or guardians have made
no reasonable efforts to provide a suitable home and have demonstrated a
lack of concern for the child to such a degree that it appears unlikely that
they will be able to provide a suitable home for the child at an early date.
Id. A suitable home “requires more than a proper physical living location.” In re Hannah
H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10,
2014) (quoting State v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3
(Tenn. Ct. App. Nov. 29, 2007)). “It requires that the home be free of drugs and domestic
violence.” Id.
Here, there is no dispute that the children were placed in DCS custody on January
7, 2015 and later found to be dependent and neglected. There also can be little dispute
that Mother’s home remains unsuitable for the children. According to Mother’s own
admission, it lacks basic necessities such as electricity. Indeed, Mother testified that she
often could not stay in the home during her pregnancy due to the lack of electricity. As
such, it appears largely uncontested that the children likewise cannot stay in the home in
its current condition, despite Mother’s testimony that some improvements were being
made to the home.
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Rather, Mother asserts that the trial court erred in finding that DCS made
reasonable efforts to assist Mother with improving the home’s condition in the four
months following the children’s removal. This Court has previously held that this ground
for termination required clear and convincing proof that “DCS ‘made reasonable efforts
to assist [Mother] to establish a suitable home for the child[.]’” In re Josephine E.M.C.,
No. E2013-02040-COA-R3-PT, 2014 WL 1515485, at *19 (Tenn. Ct. App. Apr. 17,
2014) (quoting Tenn. Code Ann. § 36-1-102(a)(1)(A)). Pursuant to section 36-1-
102(1)(A)(ii): “The efforts of the department or agency to assist a parent or guardian in
establishing a suitable home for the child may be found to be reasonable if such efforts
exceed the efforts of the parent or guardian toward the same goal, when the parent or
guardian is aware that the child is in the custody of the department[.]” Therefore, DCS’s
“efforts do not need to be ‘Herculean,’ [but] DCS is required to use its ‘superior insight
and training to assist parents with the problems the Department has identified in the
permanency plan, whether the parents ask for assistance or not.’” In re Isobel V.O., No.
M2012-00150-COA-R3-PT, 2012 WL 5471423, at *8 (Tenn. Ct. App. Nov. 8, 2012)
(quoting State, Dep’t. of Children’s Servs. v. Estes, 284 S.W.3d 790, 800–801 (Tenn. Ct.
App. 2008)). This Court has interpreted Tennessee Code Annotated section 36-1-
102(1)(A)(ii) as directing that a reasonable efforts inquiry in this context be limited to an
examination of the four-month period immediately following the child’s removal from
the home. See, e.g., In re Riley C., No. M2015-00541-COA-R3-PT, 2016 WL 626058, at
*8 (Tenn. Ct. App. Feb. 12, 2016); In re M.A.P., No. E2014-02413-COA-R3-PT, 2016
WL 369399, at *5 (Tenn. Ct. App. Jan. 29, 2016); In re Aaliyah E., No. E2015-00602-
COA-R3-PT, 2016 WL 304627, at *6 (Tenn. Ct. App. Jan. 26, 2016). The relevant period
in this case therefore spans January 8, 2015 to May 7, 2016.
Mother argues that because of DCS’s storied involvement in this case, DCS
should have known that Mother’s “issues were not easily remedied.” Rather than
immediately engage services to help Mother, she notes that DCS’s referrals largely did
not begin until April 2015, more than two months after the children were removed. DCS
does not dispute that there was some delay in providing necessary services to Mother, but
asserts that some of the delay was attributable to communication issues with Mother and
her decision to postpone assessments. Additionally, DCS asserts that its efforts, while
somewhat delayed, were reasonable and constituted more effort than Mother expended to
remedy the conditions that led to the removal of the children.
Here, the trial court found that DCS did make reasonable efforts to assist Mother
in establishing a suitable home in the four months following the removal of the children.
The trial court noted that Ms. Trivette, inter alia, attempted to locate a relative placement
for the child, assisted Mother in scheduling an alcohol and drug assessment, attempted to
maintain contact with Mother, helped Mother reconnect with a previous service provider,
provided random drug screening to help Mother show that she was drug-free, made a
referral for a psychological assessment and reminded Mother of the appointment, which
Mother later missed and Ms. Trivette helped her reschedule, requested funding for a
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clinical parenting assessment, which was completed within the four-month period, made
a referral for homemaking services to assist Mother with remedying the conditions in her
home, conducted home visits to determine Mother’s progress, notified Mother of
appointments for the children, and ensured that the children’s therapy remained near
Mother’s home so that she could attend the sessions. In contrast, the trial court found that
Mother made no real effort to establish a suitable home for the children. During this time,
Mother tested positive for illegal substances. Mother often missed scheduled
appointments with service providers and telephone calls with the children. Although
Mother was largely consistent with visitation with the children, DCS workers testified
time and again that they were often unable to stay in contact with Mother. As such, the
trial court found that
18. [W]hile not all of the recommendations of the assessments that were
completed by [Mother] were returned during the four (4) months following
removal, the reasonable efforts that were made by [DCS] during this four
(4) month period were astronomical when compared to the minimal efforts
made by [Mother] to improve her situation.
19. [Mother]’s failure to make even minimal efforts to improve her home
and personal condition demonstrates a lack of concern for the children to
such a degree that it appears unlikely that she will be able to provide a
suitable home for the children at an early date.
The record on appeal supports the trial court’s finding that despite DCS’s
reasonable efforts to assist Mother, she made no corresponding efforts to remedy her
living situation. Here, Mother admits in her brief that Ms. Trivette, the DCS worker
assigned to Mother during this time, spoke on the phone with Mother between January 7,
2015 and the end of February and met with Mother in her home one time at the end of
February. Still, we concede that much of DCS’s efforts came during the final months of
the four-month period at issue. Nevertheless, in April 2015, DCS worked to assist Mother
in obtaining necessary assessments and improving her home situation by placing
homemaking services in the home with Mother. Clearly these efforts are far superior to
other cases in which this Court found that no reasonable efforts were exerted by DCS. In
Isobel V.O., for example, we held that DCS failed to prove by clear and convincing
evidence that it used reasonable efforts to assist parents with establishing a suitable home
where the only effort DCS made with respect to housing was to provide them with a list
of possible housing options. In re Isobel V.O., 2012 WL 5471423, at *8. We have
likewise found a lack of clear and convincing evidence of abandonment for failure to
provide a suitable home where DCS “offered no evidence of efforts it made to help
Mother obtain suitable housing at any time.” In re C.H.E.H., No. E2007-01863-COA-
R3-PT, 2008 WL 465275, at *11 (Tenn. Ct. App. Feb.21, 2008). In this case, however,
Ms. Trivette detailed a multitude of efforts expended to assist Mother in establishing a
suitable home for her children. Ms. Roosa’s homemaker services also began during the
four-month period and included effort to assist Mother in cleaning the home, obtaining
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disability benefits or employment, attending mental health appointments, and learning
public transportation to remedy Mother’s transportation issues.
During this time, however, Mother continued to abuse drugs and made no
improvement to her living situation. Even at the time of trial, the home had no electricity
and Mother admitted that she had recently used illegal drugs. At trial, Mother asserted
that work was currently being done to the home. As such, it appears that Mother wishes
to chastise DCS for a an approximate three month delay in securing services for her with
her approximately two-year delay in making in substantial effort to make the home
liveable. This Court has previously upheld a trial court’s finding as to this ground even
where DCS’s efforts are delayed when some of the delay is attributable to lack of contact
with the parent. See In re Candace J., No. M2015-01406-COA-R3-PT, 2016 WL
944268, at *9 (Tenn. Ct. App. Mar. 11, 2016). In this case, Ms. Trivette testified to the
multitude of efforts that DCS made during the four months following the removal of the
children. Although these efforts largely began in the final two months, the Tennessee
Legislature has clearly chosen to confine our review not to only the first two months after
the removal, but the four months following removal. See Tenn. Code Ann. § 36-1-
102(1)(A)(ii); In re Riley, 2016 WL 626058, at *8. The effort expended by DCS is
therefore sufficient even though it occurred well into the four-month period at issue.
Mother also asserts that this ground is inapplicable where she was unable to
complete the recommended programs required by the permanency plan in the four-month
period following the removal of the children. Effort, rather than completion, is the proper
metric with regard to this ground. See Tenn. Code Ann. § 36-1-102(1)(A)(ii) (discussing
the parents “efforts”). As detailed above, Mother made minimal effort during the four-
month period to establish a suitable home for the children, or at the very least, to maintain
contact with DCS so that it could provide services to help her achieve this goal.
Moreover, Mother failed to complete the required drug and alcohol program not only in
the four months after the removal of the children, but also in the approximately two years
since the children were removed from her home. The trial court’s finding that the ground
of abandonment by failure to establish a suitable home is therefore affirmed.
Substantial Noncompliance
Next, the trial court found that Mother had substantially failed to comply with the
permanency plans at issue. Tennessee Code Annotated section 36-1-113(g)(4) provides
that a ground for termination exists where “[t]here has been substantial noncompliance by
the parent or guardian with the statement of responsibilities in a permanency plan
pursuant to the provisions of title 37, chapter 2, part 4[.]” Further, Tennessee Code
Annotated section 37-2-403 provides, in relevant part:
Substantial noncompliance by the parent with the statement
of responsibilities provides grounds for the termination of
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parental rights, notwithstanding other statutory provisions for
termination of parental rights, and notwithstanding the failure
of the parent to sign or to agree to such statement if the court
finds the parent was informed of its contents, and that the
requirements of the statement are reasonable and are related
to remedying the conditions that necessitate foster care
placement.
The determination of whether there has been substantial noncompliance with a
permanency plan is a question of law, to be reviewed on appeal de novo with no
presumption of correctness. In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002).
Termination of parental rights under Tennessee Code Annotated section 36-1-113(g)(2)
“requires more proof than that a parent has not complied with every jot and tittle of the
permanency plan.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). To
succeed under section 36-1-113(g)(2), DCS “must demonstrate first that the requirements
of the permanency plan are reasonable and related to remedying the conditions that
caused the child to be removed from the parent’s custody in the first place.” In re M.J.B.,
140 S.W.3d at 656–57 (citing In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124
S.W.3d 609, 621 (Tenn. Ct. App. 2003)). Second, DCS must show that “the parent’s
noncompliance is substantial in light of the degree of noncompliance and the importance
of the particular requirement that has not been met.” In re M.J.B., 140 S.W.3d at 657
(citing In re Valentine, 79 S.W.3d at 548–49; In re Z.J.S., No. M2002-02235-COA-R3-
JV, 2003 WL 21266854, at * 12 (Tenn. Ct. App. June 3, 2003)).
Here, there is no dispute that the permanency plans in this case required Mother
to: (1) complete a clinical parenting assessment, inform DCS of the results, follow all
recommendations, and provide documentation of any completion of recommendations to
DCS; (2) attend visitation and display “learned parenting skills”; (3) complete a
psychological assessment, share the results with DCS, follow all recommendations, and
provide documentation of any completion of recommendations to DCS; (4) complete an
alcohol and drug assessment, inform DCS of the results, follow all recommendations, and
provide documentation of any completion of recommendations to DCS; (5) complete
intensive outpatient alcohol and drug treatment and follow any recommendations from
any drug treatment program; (6) submit to random drug screens; (7) obtain legal income
or government assistance to provide for the children; (8) obtain documentation regarding
any medical issues that would prevent employment; (9) seek help from DCS to apply for
disability; and finally, (10) participate in homemaker services provided by DCS and
provide a safe and clutter-free home for the children. At trial, Mother testified that she
was informed of the requirements of the plans and the consequences of her failure to
comply with the plans’ requirements. Having reviewed the plan, we affirm the trial
court’s finding that the requirements of the plan were reasonably related to the conditions
that led DCS to remove the children.
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The trial court found that with the exception of maintaining regular visitation with
the children and completing assessments, Mother “has not completed any of the tasks set
out for her in the permanency plans, such that she is in substantial noncompliance with
the same.” The evidence in the record supports the trial court’s findings. Mother was
generally present for visitation and attended the children’s therapy sessions when
appropriate. The record also shows that Mother did attempt to obtain disability benefits
and completed three assessments: an alcohol and drug assessment, a mental health
assessment, and a clinical parenting assessment. Although Mother completed these
assessments, she generally failed to follow any of the recommendations that resulted.
While Mother testified that her inability to complete alcohol and drug treatment or mental
health treatment resulted from circumstances outside her control, for at least one type of
alcohol and drug treatment, the only effort on Mother’s part was to be home at scheduled
times. Mother failed to make even this minimal effort and in-home drug and alcohol
treatment was eventually terminated.
The permanency plans also required that Mother participate in in-home
homemaking services. Again, despite the fact that all Mother was required to do was be
present for the services, these services were eventually terminated due to Mother’s
noncompliance. With regard to the requirement that Mother participate in drug screening,
various DCS workers testified that Mother was often difficult or impossible to contact to
set up drug screens, that she failed to appear for some scheduled screenings, and that she
failed some screenings. Indeed, Mother admitted that she sometimes failed or missed
scheduled drug screens, did not currently have employment, had failed to substantially
complete an intensive inpatient or outpatient drug treatment program, and had missed
scheduled appointments with the homemaker services resulting in the termination of
those services. In addition, Mother admitted that despite the homemaker services, her
home was still cluttered and without electricity.
Although Mother made various excuses for her lack of completion of these tasks,
again, our focus is not on whether Mother successfully met the goals of the permanency
plan, but rather whether she made an effort to do so. When considering this ground for
termination, “outcome achievement is not the measure of compliance[.]” In re B.D., No.
M2008-01174-COA-R3-PT, 2009 WL 528922, at *8 (Tenn. Ct. App. Mar. 2, 2009). “Our
focus is on the parent’s efforts to comply with the plan, not the achievement of the plan’s
desired outcomes.” In re Aiden R., No. E2015-01799-COA-R3-PT, 2016 WL 3564313,
at *9 (Tenn. Ct. App. June 23, 2016) (no perm. app. filed); see In re Heaven J., No.
W2016-00782-COA-R3-PT, 2016 WL 7421381, at *10–11 (Tenn. Ct. App. Dec. 22,
2016) (holding that the evidence did not rise to the level of clear and convincing on the
ground of substantial noncompliance when father made “considerable efforts and
substantial progress” toward his tasks on the permanency plan); Tenn. Dep’t of
Children’s Servs. v. P.M.T. et al., 2006 WL 2644373, at *8 (Tenn. Ct. App. 2006)
(“Tenn[essee] Code Ann[otated section] 36-1-113(g)(2) does not require substantial
compliance with a permanency plan’s ‘desired outcome[s],’ rather it requires substantial
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compliance with a plan’s statement of responsibilities, i.e., the actions required to be
taken by the parent or parents.”); cf. In re Eddie F., No. E2016-00547-COA-R3-PT,
2016 WL 7029285, at *6 (Tenn. Ct. App. Dec. 2, 2016), app. denied (Tenn. Mar. 2,
2017) (“Although [m]other certainly failed to comply with some requirements of the
permanency plan, we cannot agree that [m]other’s relapse ‘undid’ all of her previous and
subsequent attempts to substantially comply with the requirements of her permanency
plans.”).
Here, Mother’s behavior over the approximately two years leading to trial shows a
general lack of effort on Mother’s part. DCS workers consistently testified that Mother
was difficult to contact to provide assistance in working the plan. Mother repeatedly
began programs or services, only to stop her involvement prior to completion. Although
the permanency plan makes clear that Mother’s mental health and substance abuse were
among the core issues in the permanency plan, Mother failed to make substantial effort to
attend inpatient or outpatient treatment. Mother blamed this failure on medical problems,
deaths in the family, miscommunication, and waiting lists. Mother admitted, however,
that at a certain point, she stopped working with service providers and “didn’t really deal
with it.” With regard to an inpatient drug and alcohol treatment program, Mother likewise
testified that she “just really ha[s]n’t been thinking about it right here lately.” As such,
Mother’s behavior over the course of the more than two years that DCS has most recently
been involved with this case illustrates a pattern where Mother makes little to no effort to
complete the requirements under the plan, always laying the blame elsewhere. Thus, this
is simply not the case wherein a parent makes considerable effort to work a permanency
plan, only to fail to meet the desired outcomes of the plan due to a relapse near to the
time of trial. See In re Zane W., No. E2016-02224-COA-R3-PT, 2017 WL 2875924, at
*12 (Tenn. Ct. App. July 6, 2017) (reversing the trial court’s finding with regard to
substantial non-compliance with permanency plans, where mother made effort to
complete the plan’s requirements for two years, including attending required therapy,
only to relapse shortly before trial). The trial court’s finding that this ground had been
proven by clear and convincing evidence is therefore affirmed.
Persistence of Conditions
The trial court also based the termination of Mother’s parental rights on
persistence of conditions. Persistence of conditions requires the trial court to find, by
clear and convincing evidence, that:
The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months
and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
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child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at any early date so that the child can be safely
returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable and permanent home.
Tenn. Code Ann. § 36-1-113(g)(3).
“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 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. & M.S., No. M1999-01286-COA-R3-
CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the
conditions which led to the removal need not be willful. In re T.S. & M.S., 2000 WL
964775, at *6 (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.
1990)). “Where . . . efforts to provide help to improve the parenting ability, offered over a
long period of time, have proved ineffective, the conclusion is 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.” In re A.R., No. W2008-00558-
COA-R3-PT, 2008 WL 461675, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re
D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3,
2008)).
Here, there is no dispute that the children were adjudicated dependent and
neglected and had been removed from Mother’s home for six months prior to the filing of
the termination petition. With regard to this ground, the trial court found that three
conditions led to the removal of the child: (1) “unaddressed drug and alcohol issues”; (2)
“unaddressed mental health issues”; and (3) a “home environment [that] remains
inappropriate for children.” The trial court found that these conditions had not been
remedied and were unlikely to be remedied in the near future so as to allow the return of
the children to Mother. The record on appeal supports the trial court’s findings.
Here, as discussed above, the permanency plan created by DCS and agreed to by
Mother illustrates that mental health, drug, and environmental issues were central to
Mother’s ability to be reunited with her children. Unfortunately, in the more than two
years since DCS most recently became involved with the family, Mother has made little
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to no progress toward meeting these goals. Mother testified at trial that her mental health
has suffered due to recent family losses. While we are certainly sympathetic to the
problems that Mother has faced, her children simply cannot return to her until she can
demonstrate stability and a desire to make improvements. Rather than demonstrate
improvement, however, Mother testified that she utilized illegal drugs to deal with the
stress and grief caused by her family losses and that she has recently chosen not to “deal”
with the service providers referred by DCS or to really contemplate seeking the intensive
inpatient treatment that was recommended.
In addition, while Mother testified that she was making improvements to her
home, she admitted that even she was unable to live in the home full-time in the summer
of 2016 because it lacked electricity. As of the date of trial, the home still had no working
electricity. Moreover, Mother’s failure to maintain contact with DCS workers and make
herself available for home visits means that DCS was unable to determine if Mother’s
recent efforts have in fact improved the home. As late as September 2016, however, a
DCS worker testified that the home was still cluttered and infested with bugs. Given that
little to no improvements took place while DCS was able to make home visits, we are
reluctant to credit Mother’s testimony that the home has now improved to a point that the
children may safely return. Under these circumstances, it appears that the conditions that
led to the children’s removal, specifically Mother’s unaddressed drug and mental health
issues and the environmental concerns of her home, have not been sufficiently addressed,
nor are they likely to be addressed, so as to allow reunification of the family at an early
date. Moreover, although there has been some instability in the children’s placement
previously, the record establishes that the children are now in a safe and stable home,
placed with a family that wants to adopt the children. The children’s therapists both
testified that stability is integral to the children’s progress. Mother’s unaddressed issues
show that, while her love for the children has not waivered, she simply cannot provide
the type of stability necessary for her children. Thus, maintaining the relationship with
Mother “diminishes the child’s chances of early integration into a safe, stable and
permanent home.” Tenn. Code Ann. § 36-1-113(g)(3). The trial court’s finding that clear
and convincing evidence supports this ground for termination is therefore affirmed.
Best Interest
When at least one ground for termination of parental rights has been established,
the petitioner must then prove by clear and convincing evidence that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child’s best interest. Id. However, when the interests of the parent and
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the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at
194.
The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:
(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 affect 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 or controlled substances 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). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a single factor
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or other facts outside the enumerated, statutory factors may dictate the outcome of the
best interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.
In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
The trial court made detailed findings of fact to support its determination that
termination of Mother’s parental rights was in the children’s best interest, including
discussion of the testimony provided by DCS regarding Mother’s progress and the
testimony of the children’s therapists and foster mother regarding their progress since
removal. Based upon these findings, the trial court made the following pronouncements:
43. It is in the children’s best interests for termination to be granted as to
[Mother], because she has not made changes in her conduct or
circumstances that would make it safe for the children to go home. The
Court finds that it is not safe for the children to return to [Mother] at this
time. [Mother] has not completed the recommendations of her assessments.
She has not completed alcohol and drug counseling. She has not
participated in mental health counseling. Her home is not environmentally
safe.
44. It is in the children’s best interests for termination to be granted as to
[Mother], because she has not made lasting changes in her lifestyle or
conduct after reasonable efforts by the state to help, so that lasting change
does not appear possible. The Court specifically finds that [DCS] has made
reasonable efforts in this cause to assist [Mother] in addressing her
substance abuse issues, mental health concerns, and housing issues, all to
no avail.
45. The Court finds that the children do have a meaningful relationship
with [Mother].
46. It is in the children’s best interests for termination to be granted as to
[Mother], because changing caregivers at this stage of their lives will have a
detrimental effect on them. The Court specifically finds that both of the
children’s therapists testified that the children are in need of stability,
consistency and permanency. This is important to their overall wellbeing.
The Court further finds that the children have attained stability in the
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[foster] home, in that, with the exception of a three (3) month period of
time, they have lived in this home for the last two (2) years.
47. It is in the children’s best interests for termination to be granted as to
[Mother], because she has neglected the children and other children who
are their siblings.
48. It is in the children’s best interests for termination to be granted as to
Respondent, because there is crime in her home. The Court specifically
finds that [Mother] is abusing illegal drugs, raising concerns for the illegal
activity that is ongoing in her home and life.
49. [] The Court finds that it is in the children’s best interests for
termination to be granted as to [Mother], because she abuses illegal drugs,
rendering her consistently unable to care for the children [in a] safe and
stable manner. [Mother] has continuously struggled with drug abuse during
the pendency of the dependent and neglect proceedings over the past two
(2) years. She has attempted multiple drug treatment programs and has
never completed any of them. She acknowledged in her testimony that she
needs drug treatment. She tested positive for illegal drugs on a drug screen
by DCS as recently as December, 2016, and when asked by the [DCS]
during her cross-examination if she would pass a drug screen today, she
acknowledged that she did not know and that she had used illegal drugs as
recently as three (3) weeks ago. She acknowledged that she uses illegal
drugs when she is depressed or overwhelmed, although she denied the
categorization of her drug use as “self-medicating.” The Court finds that
[M]other’s continued drug use does render her consistently unable to care
for the children in a safe and stable manner and this factor weighs in favor
of termination of [Mother]’s parental rights.
50. It is in the children’s best interests for termination to be granted as to
[Mother] because her mental and emotional state would be detrimental to
the children and would prevent her from effectively parenting the children.
The Court finds that [Mother] needs to be stable to meet not only her needs
but the needs of the children. Up to this point, she has not demonstrated that
she is even able to meet her own mental health needs.
51. It is in the children’s best interests for termination to be granted as to
[Mother] because she has not paid child support consistently.
52. It is in the children’s best interests for termination to be granted as to
[Mother], because she has shown little or no interest in the welfare of the
children. The Court finds that, as to [Mother], she appears to be content
with having only supervised visitation with the children and making no
further steps towards getting the children home. While this may be
acceptable to her, it is not acceptable for the children.
53. It is in the children’s best interests for termination to be granted as to
[Mother], because the children have established a strong bond with their
foster parents, who wish to adopt them.
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The record on appeal generally supports the trial court’s findings with regard to
the best interests of the children. As the trial court found, testimony from both Mother
and a service provider who supervised visitation indicated that Mother and the children
had a close and loving bond, which has been maintained through Mother’s largely
consistent visitation. See Tenn. Code Ann. § 36-1-113(i)(3) & (4). As such, these factors
do not militate in favor of termination. Although the trial court also found that Mother’s
failure to pay child support favored termination, this factor is less certain, as the record is
unclear as to Mother’s ability to pay support. See Tenn. Code Ann. § 36-1-113(i)(9).
Other factors, however, strongly favor termination. Here, Mother has consistently
admitted to abusing drugs to combat her mental health issues, rather than seeking and
completing mental health treatment. See Tenn. Code Ann. § 36-1-113(i)(8). Because
Mother has inconsistently sought appropriate treatment, it is not clear that Mother would
maintain the mental health treatment that both of the children’s therapists testified was
necessary to their continued progress. Changing caretakers therefore is likely to have
detrimental effect on the children. See Tenn. Code Ann. § 36-1-113(i)(5).
The home in which Mother lives is also not appropriate for the children to return.
See Tenn. Code Ann. § 36-1-113(i)(7). When DCS workers were allowed in Mother’s
home, they observed that it remained cluttered and bug-infested even years after the
children were removed. Mother admitted at trial that the house lacked electricity, making
her unable to stay in the home for a time. Clearly, Mother’s inability or refusal to
maintain drug-free and to establish a suitable living space for the children illustrates her
failure to make an adjustment of circumstances so as to make it safe for the children to
return to her care. See Tenn. Code Ann. § 36-1-113(i)(1). Finally, although Mother
testified that she was currently taking parenting classes in order to meet the requirements
of the parenting plan, Mother’s effort in the week before trial simply does not show that
she has made a lasting adjustment or that she is likely to do so. See Tenn. Code Ann. §
36-1-113(i)(2). Indeed, even with the serious consequences of the termination of her
relationship with her children on the horizon, Mother chose to use illegal drugs, thereby
substantially decreasing the likelihood that they would be returned to her at an early date.
Finally, although the children’s placement has previously been disrupted, the record
shows that their current foster home provides the children with the best chance of
establishing stability and maintaining their progress. Based upon the trial court’s detailed
findings above, we agree that DCS established clear and convincing evidence that
termination of Mother’s parental rights was in the children’s best interests.
Conclusion
The judgment of the Juvenile Court of Washington County terminating Mother’s
parental rights to her two children is affirmed and this cause is remanded to the trial court
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for further proceedings as are necessary and consistent with this Opinion. Costs of this
appeal are taxed to Appellant Felicia A., for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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