In Re: Mack E. ( 2018 )

02/09/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 3, 2018
IN RE MACK E., ET AL.
Appeal from the Juvenile Court for Jefferson County
No. 17-00047 Dennis Will Roach, II, Judge
No. E2017-01337-COA-R3-PT
Barbara E. (“Mother”) appeals the termination of her parental rights to the minor children
Mack E., Hannah E., Amber E., Donnica B. and Barbara Jean B. (collectively “the
Children”). Donald B. (“Father”) appeals the termination of his parental rights to the
minor children Donnica B. and Barbara Jean B. We find and hold that the State of
Tennessee Department of Children’s Services (“DCS”) proved by clear and convincing
evidence that grounds existed pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1), (g)(2), and
(g)(3) to terminate both Mother’s and Father’s parental rights and that it was proven by
clear and convincing evidence that the termination of both Mother’s and Father’s parental
rights was in the Children’s best interests. We, therefore, affirm the June 28, 2017 order
of the Juvenile Court for Jefferson County (“the Juvenile Court”) terminating Mother’s
and Father’s parental rights to the Children.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and J. STEVEN STAFFORD, P.J., W.S., joined.
Garry L. Chin, Knoxville, Tennessee, for the appellant, Barbara E.
Brett J. Bell, Dandridge, Tennessee, for the appellant, Donald B.
Herbert H. Slatery, III, Attorney General and Reporter; and Erin A. Shackelford,
Assistant Attorney General, for the appellee, State of Tennessee Department of
Children’s Services.
W. Keith Repass, Dandridge, Tennessee, Guardian ad Litem.
OPINION
Background
The Children were taken into State custody in April of 2014 due, in large part, to
environmental concerns, and were placed in a foster home and found to be dependent and
neglected. A trial home visit with Mother and Father was attempted from June to July of
2015, but was disrupted. DCS filed a petition in January of 2016 seeking to terminate the
parental rights of Mother, Father, and Robin E., the biological father of the three eldest of
the Children.1 After a trial in June of 2016, the Juvenile Court terminated Robin E.’s
parental rights, but found that no grounds for terminating Father’s parental rights had
been proven and that although DCS had proven abandonment by willfull failure to
provide support as to Mother, that it was not in the Children’s best interests for Mother’s
rights to be terminated at that time.
A second trial home placement with Mother and Father was attempted after the
June 2016 trial, but was disrupted in September of 2016. In January of 2017, DCS filed
another petition seeking to terminate Mother’s and Father’s parental rights to the
Children. The case proceeded to trial over multiple days in May and June of 2017.
At trial, Stacy Weaver, who works with Freewill Baptist Family Ministries,
testified. Ms. Weaver stated that she “would visit the children on a weekly basis,
checking on their well-being,” and that she had done so for a little over a year. During
the last trial home placement, Ms. Weaver visited the home twice a week. Ms. Weaver
explained that: “at some point [she] was moved to residential for a few weeks, and Teri
Slone (phonetic), [her current] supervisor took over on some of those visits, but then [Ms.
Weaver] was back on the case in September again. So it was, like, a split time between
Teri and [Ms. Weaver].”
Ms. Weaver testified that there were times during her visits when Mack, the oldest
of the Children, was not at home because he had walked to someone else’s house. Ms.
Weaver stated that during those times, Hannah “would usually be home alone. And
Amber would take off and go somewhere in the neighborhood to another friends [sic]
house. She was not being supervised. Amber liked it because she said there were no
rules, and she got to do what she wanted.” At that time Amber was 11 years old. Ms.
Weaver stated:
1
Robin E. is not involved in this appeal.
2
And then Hannah would be left at home to be alone, and I know she
was afraid to be home alone. She had told me she was, but sometimes she
would be there by herself late at night; nothing to eat. She didn’t like to try
to find - - hadn’t really been taught how to cook or shown what to cook, or
there was nothing left for her to be able to heat up. She said the food that
was left in the refrigerator - - and she showed it to me. She lifted the
containers out of the refrigerator. They were styrofoam containers from
Dixie Stampede full of leftovers. But she would pull them out and show
them to me, and there was mold growing across the top of some of the food
and roaches scurrying from the containers as soon as she lifted the lid off.
So I advised her at that time to throw them away. And so we stood
there with the trash bag and threw the molded and bug-infested food in the
trash.
Ms. Weaver was shown photographs, which she stated that she took in September
shortly before the disruption of the last trial home placement. She explained:
These look like the pictures that I took in September, I believe it
was, showing a bottle of chemical. I don’t know what it was, but it was in
the little girl’s bedroom sitting on the floor beside of their dresser. And it
concerned me because it wasn’t put up or locked out of their safety, but it
was on the floor where the little girls could get to it.
These were roaches along the ceiling, hiding in the corners of the
ceiling.
This is Mack’s room and that’s his xbox, and the roaches were going
in and out of the xbox.
This is the family’s oven. I opened the door and wasn’t able to get a
picture of it because they moved so fast, but when I opened the door, there
was a pile of roaches on the door that I thought at first was a swarm of bees.
It was that big of a bundle of roaches. I immediately let the door go and
screamed.
Mack was laughing at me. When I opened it again to take a picture,
there was still roaches along the side of the oven. And they can be seen
there in those pictures.
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This one was taken – that’s also the oven, and the roaches that were
crawling around through the oven.
This was a tote bag that was sitting on the kitchen table, and the
roaches were going in and out of the tote bag. It had toys in it.
This was the oven door and the cupboard with the roaches crawling
in and out of the food cupboard and the filth that was all along the counter.
That was of me trying to open the door without getting a roach on
me, but it was standing there staring at me.
These were in the microwave. These were live roaches in the
microwave. And this is their food cupboard and that was a can of salmon.
I mean, there was just some odds-and-ends foods that the kids wouldn’t eat.
But the roaches were crawling across the cans of food.
This was directly on the stove, the roaches feeding on what looked
like left-over egg or something. Roaches on the back of the stove. Roaches
on the bread package and getting into the plastic, and crawling around the
child’s toy.
And these pictures are of Barbara Jean, the little one. These are of
the sores that covered her legs. And she would sit and pick at them,
because they itched so bad, and they covered, you know, both legs.
And I believe this was Donnica. And those were the sores that were
on her legs as well, but those sores continued on up to the tops of her leg
and onto her little bottom. And they were -- it took quite a while to get
those treated.
Ms. Weaver explained that the two youngest of the Children, Donnica and Barbara
Jean, usually were not in the home when Ms. Weaver visited. She stated:
There was one time I went, and they were on the floor asleep. They
did not sleep in their beds. They slept on the living room floor.
I remember this because during this visit I was horrified by the
roaches that were crawling around on the floor by the children. And I was
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over there trying to stomp and kill the bugs before they crawled across the
babies that were sleeping on the floor.
Ms. Weaver testified further about the condition of the home and stated:
Pets were an ongoing issue due to the unclean home. There was piles of
dog food stuck to the carpet. Some of it was molded so it had been there
for a little while.
There was a very strong urine smell in the home that you could
actually smell before you even got through the door. You could smell it
outside the odor was just so overwhelming, and I believed it was not
healthy for the children to be in that type of environment with their -- with
the breathing. There were hairballs from the pets on the children’s beds.
The dogs were infested with fleas, and they also had cats in the house.
Ms. Weaver stated that she believed that Mother and Father may have gotten rid of some
of the animals, but stated that they still had cats in the house and had 40 or 50 pound bags
of cat food and “always a bowl out with food in it. Even though we didn’t actually
always see the animals, there was food and evidence of those animals there.” Ms.
Weaver testified that Mother and Father then got another dog, which now lives with
them.
Ms. Weaver testified that there were issues with the Children’s hygiene. She
stated: “The children did not have any supervision so their hair was not brushed. Their
teeth were not brushed. Their clothes were dirty or they would wear clothes that weren’t
theirs because they couldn’t find anything clean. They went to school this way.”
Ms. Weaver visited the home one time after the last trial home placement
disrupted. This visit occurred in early April of 2017. Ms. Weaver testified about the visit
and stated:
Not a lot had changed. Again, as you approached the door, you can
smell the odor. The outside of the home is littered with trash and broken
glass so there’s no safe place for the kids to play. There’s like old metal
and just scrap. I remember seeing broken lightbulbs and things like that
leading up to the house.
And once you get inside the smell is overwhelming. I don’t know if
they had just fumigated because they knew we were coming, but there was
a very intense smell. It was kind of an odd smell. But you could also pick
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up the smell of mold. You could smell urine, feces from the pets. And
then it was almost like a sickening flower smell because in every room of
that house was a wax warner with the smells different -- I mean, it was just
overwhelming. It made it difficult to breathe in the home.
A lot of the clutter had been pushed back to open up the floor. The
dead bugs were everywhere. So that’s why I suspected they had just
fumigated, because no one had bothered to clean them up. They were all
along the floors, all along the baseboard trim in the doorways, laying on --
dead bugs on the kitchen counter and on the tables and along the TV. I
mean, everywhere you looked there were dead bugs.
In addition to that there were still some survivors, some live bugs
coming out by the door in the kitchen. There was still some surviving
roaches that were coming out. They looked like very young ones, babies.
In the bedrooms I remember it looked like large, giant leaf bags, the
large white trash bags, stuffed into the closets tight as they could get them,
stuffed clear to the top of the closets. We asked what was in the bags, and
they said clothes and stuffed animals. So they had just stuffed everything
in closets and pushed the doors shut. Some of the doors were not able to be
closed. They were bulging.
The children’s beds -- I went in and pulled back the blankets and
found dead roaches in the beds, dead spiders, some little hairballs from the
dog that had dog poop stuff in them, just spiderwebs all around the
bedrooms in the corners in the rooms. Dead spiders everywhere.
And then again some surviving roaches would be coming out
underneath the furniture or out of closets. The house was kept very dark.
We had to ask for the lights to be turned on. Even with the lights on it was
still difficult to see, because it’s so very dark in there.
There was about I would say at least eight roach hotels on the
kitchen counter alone, and they were placed near food to draw them in I
guess. I looked in the refrigerator, and there were still remains of dead
bugs and their droppings in the refrigerator.
Ms. Weaver testified about the conditions prior to the disruption of the last trial
home placement and stated:
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I was there and saw what they had to cook with my own eyes and helped
Hannah come up with a meal because they were so hungry.
But Hannah was the one that was usually left to try to find
something for her and Amber. The two little ones were not there so she
didn’t have to feed them. And Mack would go off and find something on
his own at a friend’s house.
But she would -- a lot of times they would eat snacks. They would
eat chips or snack cakes or something like that, because there wasn’t a lot
of food that they could cook. Items in the freezer were big items that a
child would not be able to prepare.
In the cupboards there was -- like we saw in the picture earlier. It
was like cans of salmon. There was cranberry sauce. There would be like a
can of corn, just odds and ends of things that Hannah said mama had picked
them up from the food pantry. So it was a lot of unusual items. I think
there was even coconut milk in there.
Ms. Weaver described helping Hannah cook a meal during one of her visits to the
home and stated:
I had - - I taught her - - you know, as we pulled the dishes out - - the pans
out to cook the food, she had to rewash them because there were roaches in
the pans. So she stood there and washed them, and I dried them. She
would take out a spoon, and we had to flick the roaches off of the spoon
and wash those.
We found a package of pasta in the refrigerator that had not been
opened. So we got that and we boiled that. She didn’t know how to - -
what to do with it or anything so I was showing her how to fix that. We
found a small can of spaghetti sauce in the cupboard and a can of corn. So
I showed her how to open those cans and how to season them. And we still
had to wash more dishes before we could put any food into them.
As the food was cooking on the stove, the steam and the smell of the
food was going through the stove in the kitchen, and it was drawing in the
roaches. And so I was standing there at the stove, trying to protect the
food. The roaches were hanging off of the stove hood waiting to drop into
the food. And I would say there was at least a dozen or more roaches
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hanging from the stove - - the range hood. They were on the counter. They
were in the sink. They were everywhere so - -
Ms. Weaver testified that the Children stated after the last trial home visit was
disrupted that they do not want to return to the home. When asked if the Children missed
anything about home, she stated:
Hannah has told me that the one thing that she misses is going to
Dollywood with the free passes from Dixie Stampede, and she misses all
the visits to Taco Bell all the time. But she did indicate that once that
money is spent then there’s nothing left to buy the things that they need
more for the family. So she said that’s the only thing that she misses.
Amber said she misses being able to run around through the
neighborhood and go where she wants and not having like to -- not having
rules. She could go where she wanted and stay out as late as she wanted
because there was no one to keep her at home.
Ms. Weaver also visited Father’s mother’s house, where the youngest two of the
Children, Donnica and Barbara Jean, spent much of their time, and she stated:
There was a time or two when I had to go to grandma’s home to see
the girls, because I had to see them twice a week. Actually I was – I’ve lost
track of how many times I’ve been there, but I did go to grandma’s house
and see the girls. And when you walk into the home, you can smell the
strong smell of cigarettes. She stopped when I would come in, and you
could see the ashtrays sitting around that were full. And she’s on oxygen.
But that’s where Donnica and Barbara Jean were staying.
Ms. Weaver testified that the Children have spoken to her about being verbally
abused. She stated:
Amber, Hannah, and Mack were verbally abused. Mack said that he knew
that -- he had been called names, but he didn’t want to talk about it. He
tried to avoid the subject with me, but he said that he had been called
names. He said, “I’m just going to leave it at that.”
Hannah said she had been referred to as a bitch and said that --
Amber said that she had been called a jerk and a bitch. And both girls
knew that Mack had been called names, but they would not repeat the
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words. They said they would get in trouble for even writing those words
down. So I guess we have to use our imaginations on that.
Ms. Weaver testified that Hannah had talked to Ms. Weaver and:
She said she felt like she was not trusted at home, that nobody
believed her. She said it was a weird kind of love. She said when she’s at
the [foster] home, that’s a special kind of love that’s like no love she’d ever
felt before.
Ms. Weaver also testified:
Amber said that when she is at home in mama’s house, she would often get
things thrown at her. Mack was the worst at it. He would throw a
hairbrush at her and hit her in the head with tennis balls. He would throw
whatever at her, just to make her mad. And Amber stated that mama would
just turn her head.
Mack later told me that he knew it was wrong. He was kind of
testing things to see what he could get by with. He said he was -- there
were no rules, and it seemed like they were letting him get by with
everything because they didn’t want to make him mad. He said it seemed
like if they could keep him happy, he would be able to keep the siblings
happy, and everybody would want to stay. So they ignored a lot of the
actions that Mack did against Amber. And Amber was the one that was
getting hurt.
Ms. Weaver further testified:
[Amber] told me that if she would ever try to talk to mama and mama
didn’t like what she was saying, she would tell her that she was being rude,
or she would be self -- was being selfish. And a lot of times she would
whup her.
So she said so that she wouldn’t get whupped anymore she quit
talking to mama and quit talking about her feelings. But she said when
she’s in the foster home, [the foster mom] encourages them to talk about
things. And they sit on the couch and talk about how they’re feeling, and
they are supported and given ideas of how to handle various situations and
not punished.
9
Ms. Weaver stated that during the last trial home visit prior to its disruption the
Children appeared “very much depressed, not feeling good and confident about
themselves.” She stated: “They were struggling in school. There was no one to sign their
papers for them for school; no one to pay their fees; no one to do this or that. And they
were wanting to be on basketball teams. They were needing this or that for school,” but
often they wouldn’t see Mother or Father until the weekend.
When asked to describe the Children’s morale in the foster home, Ms. Weaver
stated:
Very confident. I saw Hannah standing tall and proud in her prom
gown, and then her hair is just fixed beautifully. She’s been taught how to
put on her makeup. She’s very confident and very proud of what she’s
becoming. She is a star basketball player. Her teachers speak very highly
of her. She is very clean, always smells good. Her clothes are perfect all
the time. She is becoming a beautiful young woman.
Amber -- her grades have turned completely around. She is getting
A’s. The teacher said that she is just making wonderful progress. She was
very pleased with how she was able to come back and just pick up and just
turn a phase completely around.
She’s developed more of a personality and likes and dislikes and
learning about friendships and trusting and creating a bond with the foster
parents. She’s becoming very confident.
Donnica -- when she was back at home, she was still just like a baby.
I mean, it was difficult to understand her. She was overweight. She wasn’t
doing a whole lot, just not a lot of -- and when she went back to the foster
home, she got enrolled in pre-K. And the teachers have said that she’s
become a leader in the classroom. She is befriending everyone. She looks
out for the others in her classroom, almost in a motherly style, looks out for
the underdog and is taking charge.
She is getting caught up in her curriculum as far as what she had
missed earlier in the year until the time she was able to enter pre-K. And
she made up that difference. She’s smart.
Barbara Jean is still learning to control her temper, but she’s still a
baby and has a long ways to go. But I noticed that her speech is improving,
10
and she’s becoming more open and more talkative and seems to be
confident in herself.
Mack is the one that we have seen a huge change in. Mack has
taken some pride in himself. He’s a clean-cut young man and is passing all
of his grades -- or all of his classes and has actually signed up with a
recruiter for the U.S. Air Force and is talking about a career in the Air
Force.
Ms. Weaver testified that she does not believe it is in the Children’s best interests
to return to Mother and Father. She testified that Mack, Hannah, and Amber have
expressed that they don’t want to go home, and that Donnica and Barbara Jean are too
little to be asked about their preference.
Karen Hudson, a family services worker with DCS, testified that she was assigned
to the Children’s case in March of 2016. Ms. Hudson visited the home during the last
trial home placement and observed:
the children increasingly looking more despondent, more disheveled, dirty,
mismatched, ill-fitting clothing.
And on 8/19 I found the lice in Amber’s hair. I went to visit her at
school, and her hair was just a mess. And I said - - I offered to help fix it,
and we went outside. And I took her hair out of the little ponytail, and she
had on a white hoodie and lice fell into the white hoodie.
Ms. Hudson stated that just prior to the disruption of the trial home placement, she met
individually with Mack, Hannah, and Amber and each stated that they wanted to go back
to the foster home. Ms. Hudson stated:
They said that there was just nothing to eat. They said the parents
got food stamps, and when they would get them, they would get a whole
bunch of food, mostly junk food. They’d eat it up within a day or two and
then not have anything to eat. Hannah talked about flicking roaches off the
food as she was eating it and getting used to doing that.
The parents were never home. They said they might see them on the
weekends but that they got home so late the kids were at school in the
morning. The parents would be sleeping in. And they got home as they
said two or three in the morning. So they didn’t see them most nights
unless they stayed up that late.
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Ms. Hudson was asked about what efforts DCS has made to assist Mother and
Father, and she testified:
This family has received homemaker services, therapeutic visitation,
counseling, domestic violence counseling, additional counseling. And we
allow our families to get services for six months. After that it requires our
R.A. approval.
And, let’s see, I think the homemaker services went to nine months.
So that’s three over the norm. Counseling went to seven I believe, and I
think the therapeutic visitation also was at seven months.
She clarified that the domestic violence counseling was “called anger management” and
went for five months only.
Ms. Hudson was asked about Mother’s and Father’s reasons for the condition of
the home, and she stated:
They tended to blame the people upstairs, but having reviewed the
case notes again, it seems almost cyclical in that the infestation of the lice
and the roaches would ebb a little bit, and then it comes back. They don’t
seem to be able to sustain any sort of change, and according to the
psychologicals, they don’t appear to be motivated to do so. . . . I would
agree with that assessment that - - well, the fact of the matter is they said at
this last [child and family team meeting] they don’t think there’s a problem.
They don’t see a problem. So if there’s not a problem recognized, then
how are you going to fix it.
Ms. Hudson and her supervisor attempted to visit the home on May 8, 2017, and
although both vehicles were in the yard, no one answered the door. Ms. Hudson stated:
One of my main concerns was my inability to have access to the
home to check the status - - the current environmental status. And [Father]
said that he went to work at six a.m. seven days a week, that he returned at
two or three a.m. seven days a week. And he said that the only time we
could come was at three a.m. I said, “Okay. Give me a day.” Then he did
not give me a day.
We went out to - - [Mother’s attorney] intervened and recommended
that [Mother] call - - you know, to arrange to have time off or do whatever
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she needs to do to permit DCS to be able to look at the home. And so we
agreed that she was going to call within seven days and set up a time that I
could come out and inspect the home, and that didn’t happen.
Ms. Hudson did not know why Mother and Father would not provide a date. She stated
that she had tried to do unannounced visits and had been unable to do so, and so she tried
to do a scheduled visit, but she was unsuccessful.
Ms. Hudson testified that the action steps in the permanency plan created for the
Children included tasks for Mother and Father such as maintain a home that is insect free,
have no pets in the home, have stable housing, reliable transportation and working
utilities, see to the health and well-being of the Children, and follow the
recommendations of the psychological examinations. Ms. Hudson believes that the most
important of those tasks was to have a suitable living environment free from insects
because that has been a persistent problem.
Ms. Hudson agreed that Mother and Father have complied with maintaining
employment and obtaining a vehicle, although at times they drove illegally when Father
drove without a license. Mother and Father, however, have failed to clean up the clutter
in the home and have failed to eliminate the infestation of lice, roaches, and fleas. Ms.
Hudson testified that these tasks were reasonably related to remedying the conditions that
led to foster care. Ms. Hudson stated that the reason for foster care was the unsafe living
environment in Mother’s and Father’s home. Ms. Hudson testified that the conditions
that led to removal of the Children still persist. She also testified:
I’d just point out that we do case services for those -- you know, we did an
initial clothing allotment. But after the disruption in 2015 when they went
to the foster home, then the case notes say that the mother was too
embarrassed to bring the clothing that the kids had to the children -- this is
after 32 days of being on trial home pass -- because they were soaked in cat
urine and couldn’t get the smell out.
When they went to -- when the disruption happened in September
2016, the clothes in that 79 days that they were home were in such
disrepair, whether it was staining or rips, infestation -- you know, there was
bugs crawling out of the bags of clothing that were brought. So we had to
do another case services and get the kids another clothing allotment. It’s
just concerning that in that short of period of time that all of their clothing
is completely destroyed.
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Ms. Hudson does not believe that Mother and Father are going to remedy the
conditions that led to foster care. When asked if in her opinion continuing the
parent/child relationship diminished the Children’s chances of being placed in a safe,
stable, permanent home, Ms. Hudson stated:
In my opinion, yes. . . . Watching the children when they were
placed back home, each time I visited, just them getting more and more as I
said before, disheveled, dirty, looking just despondent; and then when they
were put back into the foster home - - okay. One incident that really just
kind of shook me was the two youngest girls. They always looked afraid of
me before this, but when they were placed back in the foster home after the
disruption, when I went to go see them for the first time, they both ran to
me and hugged me. That was - - you know, you can draw whatever you
want inference from that.
But watching them as they’ve been placed back this time, watching
them get healthier each month when I go up there and looking happier and
more self-confident and well-groomed and just holding their head higher
and looking confident - - it’s hard to describe.
Ms. Hudson visited Father’s mother’s home on the day of the disruption to remove
Donnica and Barbara Jean, and she also visited it on one other day. Ms. Hudson stated:
Ms. Stacy said she did note, you know, a very strong cigarette odor,
ashtrays overflowing. She had an oxygen tank so she was still smoking,
and she needed assistance from - - I think the niece - - I’m not sure what
relationship the adult girl was that was in the home, but she had to take her
by the arm and help her get up off the couch.
When asked if she thought that Father and Mother were taking the matter
seriously, Ms. Hudson stated:
I don’t think so. Particularly with [Father’s] response at the last
[child and family team meeting] and his cavalier attitude of, you know,
“How does that sound, Ms. Karen, to come at three a.m. in the morning?” I
said, “Okay. Let’s do that.” And he still wouldn’t give me a day. And his
saying, you know, that they work -- you know, have to get up at six to be at
a show that doesn’t start until three o’clock, 3:30, in the afternoon is just
kind of ridiculous.
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Ms. Hudson testified that although Father’s driver’s license was suspended in December
of 2015, Father kept telling DCS that it was lying around the house somewhere and that
he just could not find it.
Ms. Hudson stated that the older three Children reported that even on days when
Mother and Father were not working they “were still up in Pigeon Forge and weren’t
coming home or spending time with them.” Ms. Hudson was asked if Mack and Hannah
want to see Mother, and she testified:
Hannah and Mack have said no, they don’t want to see their mother.
They want to be adopted. They’ve been clear about that. Mack said he
went on one visit this spring, and Hannah went on one visit this spring,
because the parents had been giving $20 for each child at each visit. And
they felt like they should thank them.
And I asked Mack, “well, how did the visit go?” He said, “well, it’s
just made me realize just how much my mom is not going to change, and
she’s not going to ever leave [Father].”
Ms. Hudson believes that removing the Children from the foster home would have
a detrimental effect. She stated: “They have been in this home since July of 2014, and
that’s a long time in a child’s life. And I think that they’re doing well there. They’re
flourishing. They’re attached.”
Ms. Hudson was questioned about the bug problem in Mother’s and Father’s
home, and she stated:
It is a bad problem, but I talked to one exterminator who had
exterminated at their house before, and he said that because of all the stuff -
- all the clutter in the house that it would do no good to spray because it’s
not going to permeate all the stuff.
Kristi S. (“Foster Mom”), the Children’s foster mother, testified at trial. Foster
Mom has lived in her current home for almost four years. Foster Mom and her husband
both have stable income and work 40 hours per week. The Children initially were placed
in Foster Mom’s home in July of 2014, and left the foster home only twice for trial home
placements.
The last time the Children returned to the foster home was in September of 2016.
Foster Mom testified that at that time:
15
Well, as soon as they came, we got in the shower - - they got in the
shower. Their clothes were not in the greatest of condition. And Donnica
and Barbara Jean and Amber had lice. And Donnica had sores - - weeping
sores probably I would say, if I had to count, eight or nine sores in her
head. But they were weeping pussy stuff from them. And Barbara Jean
had probably - - I counted 30 or better lice - - live lice - - not nits - - lice on
her head. And Donnica probably had 25 at the time. Amber not so many.
So she had between 10 and 15 because I didn’t do a count on Amber.
But their heads were pretty well ate up. Donnica had sores on her
lower back by her buttocks - - I don’t know. The doctors said they were
bug bites but couldn’t tell me what kind of bug bites. And Barbara Jean
had sores up her arm. . . . I don’t know what those sores were. I just take
them to the doctor and got antibiotic cream for them. She said it was
possible bug bites, but she couldn’t tell me what they were - - what kind of
bites.
Foster Mom testified that during the three years that she has had the Children, she
has had to treat for lice every time they returned from a weekend stay or trial home visit.
She was shown a photograph depicting flea bites on legs, and she stated that this was a
common occurrence. Foster Mom stated that after the trial home placements, Donnica
and Barbara Jean would return to her home with a runny nose that was “like allergies.
It’s not infection-type runny nose.” Mack and Hannah did not have lice, but Donnica,
Barbara Jean, and Amber did. Donnica was wearing “clothes that were way too tight for
her.”
Foster Mom testified that when the Children came back to her home the last time
she left their clothing outside because of an awful smell. She stated that she planned to
take the clothing to the laundromat the next day. Foster Mom stated: “I got up at six
a.m., didn’t go to work, went out there and shook all the stuff. And the roaches came out
of the clothes. And the smell on the clothes would have knocked you down.”
Foster Mom further testified:
Amber told me that she did not brush her teeth for the 45 days that
they were home. She - - Amber needs a lot of help on coordinating and
personal hygiene, and she is 12 - - well, yeah, she will be 12. So you have
to stay on her to brush her teeth and comb her hair, and to match and not
wear clothes that are too tight, showing too much, holey, stained, or
whatever. You have to stay on her.
16
But she told me that that’s not the case; when she went home, she
wore whatever she wanted to and she - - Hannah said that she never hardly
ever took a shower because she couldn’t make her because she was always
up to the neighbor’s house with Mack. Because Hannah and Mack and
Amber were there.
Foster Mom was asked what she does to help Amber, and she stated that they have
a list of rituals including things such as washing face, brushing hair, and brushing teeth
and then every morning and every evening she checks to make sure that Amber has done
these things. Amber is improving and has learned to put her own hair up in a ponytail.
Foster Mom stated: “Well, she likes to go clean. I mean she goes around fixing herself
now, and she didn’t so . . . .”
Foster Mom testified that when the Children came to the foster home, Amber did
not have an Individual Education Plan, and she needed one. The foster parents got her
services in school. Amber now gets extra help in math and reading comprehension.
Foster Mom testified that Amber was failing, but now is passing and is almost up to
grade level. Foster Mom testified about the other children stating that Donnica is going
to kindergarten next year and can write her name and knows her ABCs, Hannah is
expected to be on the honor roll this semester, Mack is passing all of his classes, and
Barbara Jean is starting Boys & Girls Club when school ends so she will be getting some
help to allow her to start pre-k next year.
Foster Mom was asked what the Children’s reactions were the last time they
returned to the foster home, and she stated:
Donnica and Barbara Jean were both asleep, and so I woke up
Donnica first. And she woke up and she looked, and she was a little
stunned at first. And she finally woke up. She grabbed me and hugged me
and then, you know, yelled my name.
Then I put her down. And Barbara Jean was still sleeping so I ran
around the car and got Barbara Jean. And she woke up, and she just, you
know, hugged me right off the bat. She didn’t look stunned, but Donnica
did. They both hugged me. And Hannah and Amber and Mack - - they all
hugged me and said they loved me, you know, the usual.
Foster Mom explained that when the Children first came to the foster home,
Barbara Jean was approximately eight months old. Foster Mom stated: “And I had to put
her in walker to make her learn how to walk because she refused to walk. So finally - - it
didn’t take long either but just maybe three or four weeks she was finally starting to take
17
steps, but it made her walk.” At that time, Donnica was three years old, and Foster Mom
stated: “I potty trained her two days after she got to my home.” Foster Mom further
explained that she potty trained Barbara Jean when Barbara Jean was a year and a half or
two years old.
Foster Mom testified that the parents have called her to speak to the Children, but
that the parents did not call for six weeks after the last time the trial home placement was
disrupted. The parents did not visit the Children during that time period either.
Foster Mom testified that the Children told her about the last trial home placement.
She stated:
Amber is very scared of bugs so - - I mean they petrify her so she
said that the roaches were crawling everywhere all the time, on her bed and
everywhere, and she was scared that they would get her. So, you know, she
couldn’t stand them.
And she said that her and Mack stayed upstairs at the neighbor’s
house, that a little girl - - Mack and her stayed upstairs because nobody was
ever home. It was just her, Mack, and Hannah. And so they stayed up
there all the time.
And Mack and Hannah tried to be her boss, and she just wasn’t
going allow [sic] them to be her boss. And that there was a guy that stayed
in a camper behind their house, and they were scared at night because they
didn’t know who that was. And they were there until one or two o’clock in
the morning.
Hannah said that she would have to fix food, and the roaches would
crawl in and out. And they were in the oven when she had to cook if she
got to cook. She also said that they were there by themselves a lot - - Sorry
- - and that Mack - - I’m sorry - - that Mack was more of a supervisor for
them and that he wasn’t very nice because he’s a boy.
She said at one time Mack laid a bruise on her leg, and he never got
in trouble, and she told them. So her and Amber made a skit up, and they
went in the bedroom. Painted a bruise on her leg - - on Amber’s leg, and
they were supposed to tell her - - the mom that Hannah did that to Amber to
see if Hannah would get in trouble. “Of course,” she said, “Amber is not a
18
very good actress,” she said, “because Mack never got in trouble.” And
that they always were lack [sic] with Mack.
And they would stay at the park until dark sometimes, walking
home. Nobody ever knew they were at the park because nobody was ever
home. That’s what Hannah would tell me. Mack, you know, he was 16,
17. So he was old enough. The girls - - and he was okay by himself but the
girls weren’t - -
Foster Mom testified that she loves the Children and wants to adopt them if they
become available for adoption. Foster Mom testified that her husband also loves the
Children and wants to adopt them if they become available for adoption. When asked if
she loved the Children, Foster Mom stated: “Of course, I do, or I wouldn’t be here
today.” Mack is going to be 18 years old soon. Foster Mom was asked about Mack, and
she stated:
Mack has a home. If he wants me to adopt him, I will even though
he’s going to be 18. Even if he isn’t adopted, he can - - that is his home. If
he’s in school, he’s there - - I mean whether he’s in school or working or
whatever, that’s his home. And he knows that. I’ve told him that several
times.
Foster Mom was asked what her long-term vision was for the Children, and she
stated: “That they get stable and they can plan their future. They can’t plan anything
right now.” She stated:
They can’t do anything right now because they don’t know where
they’re going to be. And they don’t know if they go home if they’re going
to be there for a long time so they can’t do anything.
Hannah wants to do sports. Amber wants to do cheerleading. Mack
is talking about going into the Navy or the Air Force or something. And
they can’t make plans because they have no idea what they’re going to do.
And it’s not fair. It was very difficult to - - not just to us but to them as
well because we take care of them.
They are well-taken care of, and they’re happy. And I’ve seen them
not happy, and I don’t like it. I’ve seen them not taken care of, and I don’t
like it. And they don’t like it. They’ve told me they don’t like it. That’s
what they’ve told me.
19
Father testified that he still was involved in a relationship with Mother, and they
still lived together. Father was asked about the trial home placement that he was granted
after the last trial. He was asked how long the trial home placement lasted, and he stated
that he could not remember. When asked how long the placement was supposed to last,
Father stated: “Supposed to be with me forever.” Father was asked why the placement
ended, and he stated: “I could not tell you.” He further could not recall any child and
family team meetings being held during time of the last trial home placement.
Father stated that he could not recall a meeting on August 16, 2016 at the DCS
office in New Market. He was asked if he recalled stating at that meeting that the
landlord had been coming in and spraying for bugs, and he stated that he did remember
making that statement. Father testified that he would move and has been looking for
another home, but has not found a place that will take seven people. Father refused to
admit that his current home is not appropriate. Father stated he was looking for another
home “Because they say it’s not big enough.” He also stated: “I can make anything
work.”
Father was asked about the bugs in the home, and he stated:
What about the bugs? We have them slowly under control, but the
people upstairs that live above us - - we can’t do nothing about it if they
don’t help. . . . Well, we keep spraying. We keep laying out traps and stuff
for ’em, but if the people upstairs don’t do it, we ain’t going to completely
get rid of them.
Father testified that he has had conversations with the people upstairs, and he stated that
the conversations go “[a]bout the same as usual. . . . I couldn’t tell you what they’re
doing.” Father claimed that he knew that the people upstairs had a bug problem because
he had seen bugs when he went upstairs to talk to them. Father stated that the people told
him they were spraying, but he could not get proof that they were spraying. Father was
asked if the landlord was helping, and he stated: “She gives me sprays.”
Father testified that he had spent money on lice treatment for the family because:
“We had head lice at the time. . . . Most all of us, because usually when one person has
it, they all get it.” Father could not provide an answer about how long he had head lice.
Father admitted that there was a period of time when he could not visit the Children due
to the risk of infesting them with head lice, but he could not answer how long that period
lasted. He stated: “Every time I went to my doctor I got a clear excuse, saying I was free
and clear.” Father admitted that the Children had lice the first time they were taken into
custody and that they also had lice when the last trial home placement was disrupted.
20
Father was asked if he recalled a discussion during a child and family team
meeting about bugs being everywhere, crawling up walls, on the floor and in the
refrigerator, and he admitted that he did. Father was asked if that was in his home, and
he stated: “At the time maybe, yes.” He testified that was not the case anymore. When
asked how long since he got rid of the bugs, Father stated: “It’s been awhile since I got
rid of ’em. I mean they ain’t completely gone, but they ain’t crawling like they were.”
Father was asked if he recalled a discussion about food not being stored properly,
and he insisted that he stored food properly. Father was asked about his agreement to
ensure that no open food would be left out, and he stated: “I never said no food could be
left out, because that’s impossible with kids.” When asked why the bugs came into the
home, Father stated: “I have no earthly idea. I never asked ’em.” Father was questioned
further about his statement that the bugs were under control, and he stated: “I ain’t got
’em under control. I’m getting rid of ’em.” He testified that he was spraying and leaving
out bait traps. When asked if he was doing anything else to address the bug problem,
Father stated: “Other than burning the house, no. That’s about all I can think of other
than burning the house.”
Father was asked if it was true that he had roaches in the refrigerator, and he
stated: “I couldn’t tell you. There probably were because the seal was bad on it.” He was
asked about roaches in the oven, and he stated: “Well, considering that we have cabinets
where they can get in cabinets and - - more likely, yeah, they’d be in the oven, too.”
Father was asked if roaches were in the microwave, and he stated: “Probably because it
sits on the counter.” Father admitted that he recalled stating that the seal on the
refrigerator was messed up and that’s why bugs were getting into the fridge. Father was
asked if he had fixed that, and he stated that was the landlord’s job, not his, and that he
reported it to her.
Father admitted that the caseworkers reported that they were bitten by insects
while in the home, and that the Children had been bitten by insects in the home. He
stated: “Yes, but they also get bit by bugs at the foster care.”
When asked if the permanency plan required that he keep the house clean, Father
responded that he did keep it clean. When questioned, Father admitted that
environmental neglect was why the Children first were taken into custody. When asked
why the Children were removed from last trial home visit, Father stated: “I cannot tell
you.” Father insisted that the house was clean today, but admitted that they still have
some roaches. When it was pointed out that the bathtub was in disrepair, Father stated:
“That is the landlord’s responsibility, sir. . . . And the bathtub - - we can still use it.”
Father insisted that he told the landlord about the problem with the bathtub, and she had
stated that she would get someone to fix it.
21
Father testified that they have a dog. When asked if they have cats, he stated that
the cats lived outside. Father admitted that the cats were inside the home “[r]ight before
the kids got tooken from us we had ’em in the house, and right before that meeting we
had ’em in the house.” Father was asked if he remembered a discussion during the child
and family team meeting about how they were supposed to get rid of the animals, and he
stated: “All the animals are gone except for one.” When questioned further Father stated:
“The cats are running around outside, but they’re not our cats.” Father was asked if he
remembered agreeing during the meeting that no animal would live in the house and that
all dogs would go outside, and he did remember that. Father was asked if he recalled
agreeing that the dog would get flea baths, and he stated: “The dog does get flea baths.”
Father asked if the dog had fleas, and he stated: “Not that I know of. We give him flea
baths. He has fleas every once in a while, yes.”
Father was asked if he had stated during the child and family team meeting that
the Children hated him, and he stated: “Well, all kids hate their parents at some point in
time.” Father stated that he made this statement after he was told to get rid of the dog and
further stated that he refused to get rid of the dog because the Children wanted the dog.
Father was asked if he remembered agreeing that there was a problem with stuffed
animals, and he stated: “No.” Father testified that he had rid the home of the clutter that
lined the rooms and walls as he had agreed. When asked, Father could not recall stating
that he had gotten rid of most of the stuffed animals.
Father was asked if he recalled agreeing to ensure that the home was kept clean
and neat, and he stated: “And the home is being kept clean and neat.” He was asked if it
were true that at the time of the child and family team meeting there was a visit to the
home and the home smelled of cat urine. He stated: “It might have been. I never smelled
it.” Father denied burning incense candles to get rid of or mask smells.
Father testified that he could not remember animal feces being on the floor in the
girls’ bedroom. He admitted that they had some mold in the house and that there still was
a very musty damp odor. Father was asked what he was doing to fix that problem, and he
stated: “Everything I can, considering that’s been again piled on the landlord’s
responsibility.”
Father testified that he was watching the Children “[t]he whole time I was there.”
Father was asked what childcare plan he had in place for when he was working, and he
stated: “They were with my mom or most of the time they were at school.” Father stated
that he got home from work “about midnight or later.” He was asked what the Children
did during the evenings, and he stated: “When we was off, [Mother] was there or I was
22
there when I was off.” Father was asked if it were true that the Children were being left
home alone until about two or three in the morning every night, and he stated: “The older
kids, yes.” Father was asked why he didn’t provide childcare, and he stated: “Well, is
Mack not old enough to take care of ’em?” Father then was asked if he was allowing
Mack to babysit, and he stated: “He asked for it.” Father was asked what Mack knew
how to cook, and he stated: “He can cook anything I can.” When asked, Father stated
that he was not aware of the Children ever saying they weren’t being well-taken care of
by Mack.
Father testified that Mother got off work around the same time that he did. He
was asked if that was midnight, and he stated: “Sometimes yes; sometimes no.” Father
was asked what the condition of the home was when he came home at night, and he
stated that it was “cleaned up other than dirty dishes.” He stated that he would wash the
dirty dishes “[w]hatever time I came home and there’s dirty dishes.”
Father was asked if he recalled that the Children’s hair was not being combed and
their teeth were not being brushed, and he responded: “I was brushing my daughter’s
hair.”
Father was asked if he remembered a child and family team meeting on September
1, 2016, when he called and stated that he was unable to attend because he was at the
DMV getting registration for the van. Father could not recall that occasion. He did
however, recall going to the DMV to get the registration.
Father remembered being asked to submit a pay stub and his driver’s license to
DCS. He admitted that he never provided these and stated “because they got my check
stubs.” With regard to producing his driver’s license, Father stated: “I’m still working on
getting ’em.” When asked, Father agreed that he told the caseworker at the time that it
was around the house somewhere. Father was asked why he said this if he didn’t have a
driver’s license, and he stated: “Because they were - - all the information was around the
house.” When questioned further, Father admitted his driver’s license was suspended.
Father was asked why his license had been suspended, and he stated: “I could not tell
you.” He admitted that it had been suspended two times, and he could not tell why.
Father was asked about his transportation plan, and he stated that Mother drives and that
they have the same work schedules.
Father was asked if he could recall a child and family team meeting on September
22, when possible disruption of the trial home placement was discussed, and he denied
remembering the meeting. Father was asked if he could recall a discussion that he and
Mother had not complied with the action steps from the previous child and family team
meeting, and he stated: “No, sir, because we had done everything they asked.”
23
Father could not remember a period of time from September until December of
2016, when he didn’t visit or call the Children for six weeks. Father was asked whether
if other people testified that this was so they would be lying, and he stated that he was not
saying they were lying, but “said not that I remember.”
Father was asked what made him think that if the Children were returned to him
again the placement wouldn’t be disrupted in a few months, and he stated: “Because I’ll
keep the house clean, like I’ve been doing now.”
Mother testified and insisted that the food was not infested by roaches and that
there was not an issue with the Children having adequate food. When asked if there were
roaches in the refrigerator, Mother stated: “There was at the time, yes.” Mother admitted
there were roaches in the oven and the microwave. When asked why she stated that the
food was not infested with roaches, Mother stated: “Because we put it in containers like
buckets and storage containers.”
Mother insisted that she cooked for the Children when she was home. She was
asked what kinds of things she cooked, and she stated: “Macaroni and cheese - - all
different kind of things. . . . I would fix pizza. I fixed spaghetti. I fixed a lot of things.”
Mother was asked if the places that she stored the food had roaches, and she stated:
“Correct, but I also used containers to put stuff up and to keep bugs out of it.” Mother
claimed: “There was never roach-infested food in my home,” but agreed that they had a
roach problem and that there were roaches in the oven, microwave, refrigerator, and
freezer. Mother was asked if she had replaced any of these appliances, and she stated:
“No, because that’s not my job to replace them.” When questioned, Mother admitted that
they still have roaches, but stated: “Yeah, but not as bad as they were.”
Mother admitted that there was a lice issue during the last trial home placement
and that lice had been an issue that kept coming back. She also admitted that the house
has a very musty, damp odor. Mother testified that she has reported that to the landlord,
but that the landlord has done nothing about it. Mother stated that she had reported water
leaks, the bathtub, and the problem with the roaches, and the landlord has done nothing.
Mother admitted that despite having a problem with roaches on the floor, they were
leaving clothing on the floor. She also admitted that there was mold in her daughters’
closet. Mother stated that her daughters all share a room. Mother testified that there
were water leaks in her son’s room, but that Father had taken care of the water leaks last
year. Mother was asked if the landlord had begged them to clean up the apartment, and
she stated: “And we did from time to time. We were cleaning it up.” When questioned,
Mother did not know of any mold that remained.
24
Mother was asked if she knew why the Children had been removed from her
home, and she stated: “They said it was because of the condition of my house.” Mother
stated that she did not think there was anything wrong with the condition of her house.
She stated: “We’ve done everything that I think that needs to be done.” Mother testified
that she did not believe there was anything wrong with the house the last time the
Children were removed from her custody.
Mother testified that she would spray and put roach baits down to try to get rid of
the bugs. She claimed that she and Father sprayed and put out roach bait every time they
got paid, which was every two weeks. She also claimed that she saw a difference doing
this. When asked if they still had roaches, Mother stated: “Not as bad as they were then.”
Mother claimed that she and Father have not had lice since the Children were
removed from their custody. Mother admitted that an action step that she and Father
were supposed to complete was for the home to be free of insects including lice.
Mother admitted that she was supposed to call Ms. Hudson within seven days of
the child and family team meeting. When asked why she had not done so, Mother stated:
“Because it don’t do any good.”
Mother remembered agreeing to get rid of the pets, and she stated: “Yeah, we got
rid of all the cats that we had.” She stated they “only have one now.” Mother also stated
that she did not have a dog, but has since “gained a dog.” She stated:
My friend, Ms. Alice - - she was an older lady, and she - - with her
health problems her doctor wanted her to get a smaller dog, and my
daughter had asked for it. And normally Hannah don’t ask for anything,
and I told her yes, she could have her dog.
Mother admitted that this happened after they agreed not to have pets in the home.
Mother was asked if it was in Hannah’s best interests to get the dog even though they
were not supposed to have one, and she stated: “It seemed to be her best interest, ’cause
she was really excited about her. And she was doing what she could to take care of her.”
Mother testified that the dog is an indoor dog. Mother admitted that the Children were
allowing other animals into the house including “neighborhood cats and another dog that
was running around the neighborhood.” She stated that she told the Children not to allow
the other animals into the house, but the Children would do so when she wasn’t home.
Mother insisted that they have gotten rid of all of the animals except for the dog they
acquired for Hannah.
25
Mother was asked how long she and Father were not at home, and she stated:
“There was a lot of times we wasn’t at home, but we wasn’t - - it wasn’t like we wasn’t at
home all the time.” Mother was asked how many hours she was working per week, and
she stated: “[a] lot,” and admitted that she worked probably six days a week. Mother
testified that she worked at Dixie Stampede. She testified that she would leave for work
between 10 and 11 am and depending on the shows would work “anywhere from 11 to
two o’clock in the morning before we get out.” Mother admitted that generally she
worked a 12 hour day, or longer. Mother claimed that she had been working full-time for
“[o]ver a year.” Mother recalled agreeing to change her work schedule so she could
spend more time with the Children and claimed that she had done so.
Mother was asked what the Children would eat when she was working, and she
stated: “Food. . . . They can cook about anything they want to cook.” Mother was asked
if she would be surprised to hear that the Children reported cooking just eggs and
hotdogs, and she stated: “No, because that might be the only thing they want to cook.
But they know how to cook.” Mother admitted that one of the action steps she was
supposed to complete was to have an appropriate supply of food in the home. Mother
insisted that she had done this.
Mother was asked about the allegation that Donnica and Barbara Jean lived with
Father’s mother most of the time, and she stated: “It was probably most of the week.”
She admitted that they ate most of their meals while at Father’s mother’s house.
Mother claimed that she applied for Section 8 housing and was denied. She
stated: “Because they needed other information. I went through background checks.
And after I did the background checks, they said I wasn’t approved, and there wasn’t no
reason after that.”
Mother agreed that the permanency plan required her to have a psychological
evaluation. Mother stated she that she had one, and that she had reviewed the evaluation.
Mother was asked what the recommendations of the psychological evaluation were, and
she stated: “I wasn’t aware of any.” Mother has not sought treatment for depression.
Mother was asked if she thought it was in the Children’s best interests for her
parental rights to be terminated, and she stated: “No, sir.” When asked to explain why,
she stated: “I don’t know how to explain it. . . . I don’t know.” Mother was asked about
the period of time when she did not contact the Children, and she stated: “I did go a long
period without talking to my kids because if the foster parents don’t want to answer, they
don’t have to.” Mother was asked if she was stating that someone else was at fault, and
she stated: “Yes, sir.”
26
Mother admitted that her driver’s license was suspended in September. Father’s
license also was suspended at that time. Mother got her driver’s license reinstated. She
claimed that she got it “restated before December,” but she did not provide proof to DCS
until December. Father’s driver’s license remains suspended. Mother was not sure why
Father’s driver’s license had been suspended.
Two of the Children, Mack and Hannah, testified at trial. Mack testified about the
last trial home placement, and stated: “It was roaches everywhere, lack of food - - a lot of
stuff happened.” Mack stated that on an average day he “came home [from school],
watched my sisters, went to bed, woke up, went to school, came home, watched my
sisters, went to bed.” Mack stated he watched his sisters, Hannah and Amber, five or six
days a week. He stated that his mother and Father would go to work at ten o’clock in the
morning and not return until two o’clock the next morning. Mack testified that the
younger two sisters, Donnica and Barbara Jean, would be at Father’s mother’s house
every afternoon when Father and Mother were working. Mack testified that there were
times when he and his sisters didn’t see Mother or Father for days at a time.
Mack was asked if there was food in the house to feed himself, and he stated “on
certain days, yes,” but on other days there was not. He does not believe that his mother
can provide food for him to keep him from being hungry.
Mack also does not believe Mother can provide a house free of lice and roaches.
He was asked about issues with lice, and he stated that he shaved his head to avoid the
lice, but that his sisters “had lice all the way up until we came back - - went back to [the
foster home].”
Mack was asked his opinion of Father, and he stated: “My mom could do better.”
Mack testified that he and Father do not get along and stated: “Me and him just don’t see
eye-to-eye on things.”
Mack testified that he is turning 18 soon and that the foster parents have told him
he may stay with them even after he turns 18. Mack would like to stay with the foster
parents. He explained that they treat him well, feed him, have a clean house, and that he
feels close to them.
Hannah testified that she is fourteen years old. Hannah stated that when the last
trial home placement disrupted, the Children were having problems with lice and the
house had roaches. Hannah was asked about the food situation, and she stated: “We had
food but, like, it was very little.” She was asked about a visit from the caseworkers, and
she stated:
27
Well, whenever Stacy (phonetic) came, she came in the house and - - Stacy
and Karen came in the house, and whenever they came in and they see a
roach or something, they, like, back off or something. And then they’d go
into the kitchen and look around. And they’d see like a couple crawling
around on the floor and counters and the living room and everywhere.
Hannah testified that there were roaches in the oven. She was asked if there were a lot,
and she stated: “Yeah.” Hannah stated that she had seen roaches in the refrigerator and
had seen food in the refrigerator that had roaches in it. She was asked if that was a
common occurrence, and she stated: “Most of the time it wasn’t because all of us have
put it in like Tupperware or aluminum foil over the top.”
Hannah was asked if she wanted to return to Mother, and she stated: “Kind of and
kind of not.” Hannah was asked if she thought things would change if she returned to
Mother, and she stated: “I think it will for a little bit and then go back to the way it was.”
Hannah testified that the foster parents take care of her and see that her needs for
food, medical care, and schooling are taken care of. She stated that she is happy in the
foster home. Hannah testified that she has not been back to Mother’s and Father’s home
since the last trial home placement disrupted in September of 2016.
After trial, the Juvenile Court entered its detailed Order Terminating Parental
Rights and Decree of Guardianship on June 28, 2017 terminating Mother’s and Father’s
parental rights after finding and holding, inter alia, that DCS had proven by clear and
convincing evidence that grounds existed for termination for abandonment by failure to
provide a suitable home pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-
102(1)(A)(ii); for substantial noncompliance with the permanency plan pursuant to Tenn.
Code Ann. § 36-1-113(g)(2); and for persistence of conditions pursuant to Tenn. Code
Ann. § 36-1-113(g)(3); and that DCS had proven by clear and convincing evidence that it
was in the Children’s best interests to terminate Mother’s and Father’s parental rights. In
its June 28, 2017 order, the Juvenile Court specifically found and held, inter alia:
The Respondent [Father] is the father of the two youngest children
named in this Petition. The Respondent [Mother] is the mother of all five
of the children and has been in a relationship with [Father] since January of
2010. Both [Father] and [Mother] were properly served and represented by
counsel.
All five children were removed from the home of [Father] and
[Mother] (“Respondents”) in April of 2014 due to environmental neglect.
The Respondents and Mr. [E.] stipulated to D&N on July 8, 2014. In May
28
of 2015, the children were given home passes with the Respondents, and a
subsequent trial-home placement began in June of 2015. The trial-home
placement was disrupted after a domestic incident at the home of the
Respondents on July 22, 2015. DCS filed a Petition to Terminate Parental
Rights (“Petition”) on January 27, 2016.
After the parental rights of Respondents were not terminated in the
First Hearing, the children were placed back into the home of Respondents
in July of 2016 and a second trial-home placement (“THP”) was disrupted
shortly thereafter in September of 2016. The children were once again
removed from the home of the Respondents. The reason for the second
disruption was environmental neglect based on several observations,
including inadequacy of food, infestation of food by roaches, infestation of
the entire residence by roaches, animal fecal matter throughout the home
and in the bed of at least two children, lice in the hair of all the children
except one, bug bites on the legs and festering scalp wounds on two of the
younger children, and inadequate supervision. The children were
subsequently adjudicated dependent and neglected, and the termination
petition (“Petition”) was filed on January the 25th of 2017.
FINDINGS OF FACT
The evidence has shown that at the time of the disruption the
children had been routinely subjected to living conditions appalling to the
sensibilities and wholly inappropriate for minor children. The food sources
were inadequate in quantity and quality. The kitchen and the entirety of the
home was infested by roaches. These roaches were found inside the
cupboard, inside the refrigerator, inside the stove, on top of the oven, and
were often flicked off the food the children were trying to eat. The two
younger children would often fall asleep on a floor infested by roaches.
However, this was a better alternative for the kids than sleeping in their
bed, which contained both roaches and canine fecal matter and hair.
At the time of the disruption, the two youngest children suffered
from severe bug bites, lice, and had festering sores on their scalp, and
excepting the oldest child whose head was shaven, the older children were
also infested with lice. Also at the time of disruption, there were piles of
dog feces molded and stuck to the carpet of the home, a strong smell of
urine reaching to the exterior of the home, dogs infested with fleas in the
home, and cats moving in and out of the home.
29
Per the testimony of [Mother], roughly six days each week the
Respondents would leave for work at 10 or 11 a.m. and return somewhere
between 11 p.m. and 2 a.m. During this time the [oldest three of the
Children] would be left either at school or at home alone, supposedly under
the guiding hand of [Mack], the oldest child. However, as it turns out,
Mack would often leave the home to get away from the dismal situation
leaving his two younger siblings, ages 13 and 11, alone. Also, Amber
would often leave the home as well and run willy-nilly all over the
neighborhood and Hannah often had to fend for herself to try to find food
and cook a meal, over and against the onslaught of roaches crawling over,
in, and around all known food sources.
The [younger two of the Children], ages 4 and 3 at the time of the
disruption, were being babysat by [Father’s] mother, an elderly woman on
oxygen who has a house filled with the smell of smoke and who needs help
to merely arise from the couch. Testimony has shown that the [younger
two of the Children] came home sometimes on the weekends. The children
were often found to be disheveled, dirty, despondent and hungry.
Stacie Weaver, caseworker for Freewill Baptist Ministries testified
that as of her last visit to the home of the Respondents in April of 2017,
nearly 8 months after the disruption and removal of the children from the
home of the Respondents, the home was still in a woeful condition: a smell
of urine and feces remained overwhelming; trash and broken glass sat just
outside the home; piles of clutter had been pushed up against the walls to
open up walking space on the floor, dead bugs were lying along the floors,
kitchen counter, tables and tv; and children’s blankets were pulled back to
reveal dead roaches, spiders and hairballs. [Mack] reported being called a
“dick” by the Respondents and several other names which he would not
repeat to Ms. Weaver. Hannah and Amber both reported being called a
“bitch” by Respondents. The mother would regularly call the girls ugly
names.
On the other hand, the children have spent the remainder of the last
three years, excepting two failed trial-home visits, in the home of the pre-
adoptive foster parent. Hannah has said her relationship with her foster
parents is “a special kind of love” she has never felt before. None of the
older children want to return home. Mack chooses not to go to visitation,
and Hannah has chosen several times not to visit. [Father] has been
enjoying visits with his two children since January, and the visits have gone
reasonably well; however, after one recent visit his younger children were
30
reinfested with head lice. At this time, all five children are bonded with
their foster parents, doing well in school, and are generally more happy
than before.
A psychological assessment, the testimony of caseworkers, and the
judgment of the Court is that the parents are unwilling to take ownership
that they have a problem. Because neither parent is willing to recognize the
problem, neither parent is willing to do what it takes to resolve the problem.
Both Respondents were also found to testify in the alternative: even if there
was a problem with their home, it would be the responsibility of the
landlord to fix it.
The Court finds that the Respondents have lied to caseworkers
regarding access to their home, and have failed to make their home open to
unannounced visits. [Father] sarcastically invited caseworker to visit him
at 3 a.m. in the morning, only to fail to provide a day for her to visit at said
time. [Father] consistently lied to caseworkers concerning his expired
driver[’]s license. In sum, the Court found the testimony of the
Respondents to generally be evasive and unreliable. For example, [Father]
testified he was unsure why the trial-home visit was disrupted, unsure
whether the kids have had lice issues since the First Hearing, unsure
whether he was forbidden to see his children until he provided a lice-free
medical note, and unsure whether pictures of his stove, microwave and
cupboard are from his home.
Mother and Father appealed the termination of their parental rights to the Children.
Discussion
Although not stated exactly as such, Mother and Father raise four issues on appeal:
1) whether the Juvenile Court erred in finding that clear and convincing evidence was
proven to terminate their parental rights for abandonment by failure to provide a suitable
home pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(ii); 2)
whether the Juvenile Court erred in finding that clear and convincing evidence was
proven to terminate their parental rights for substantial noncompliance with the
permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); 3) whether the Juvenile
Court erred in finding that clear and convincing evidence was proven to terminate their
parental rights for persistence of conditions pursuant to Tenn. Code Ann. § 36-1-
113(g)(3); and, 4) whether the Juvenile Court erred in finding that clear and convincing
evidence was proven that it is in the Children’s best interests for Mother’s and Father’s
parental rights to be terminated.
31
With regard to the termination of parental rights, our Supreme Court has
instructed:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state constitutions.2 Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000);
Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption
of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk,
855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although
fundamental and constitutionally protected, are not absolute. In re Angela
E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
as parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In
re Angela E., 303 S.W.3d at 250. “When the State initiates a parental rights
termination proceeding, it seeks not merely to infringe that fundamental
liberty interest, but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388.
[“]Few consequences of judicial action are so grave as the severance of
natural family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J.,
519 U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The parental
rights at stake are [“]far more precious than any property right.” Santosky,
455 U.S. at 758-59 102 S. Ct. 1388. Termination of parental rights has the
legal effect of reducing the parent to the role of a complete stranger and of
[“]severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455
U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating
parental rights is [“]final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
[“]fundamentally fair procedures” in termination proceedings. Santosky,
455 U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640
2
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”
32
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated [“]fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010). [“]Clear and convincing evidence enables the fact-finder
to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than
not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1113[sic](c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds3 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
S.W.3d at 254. Although several factors relevant to the best interests
3
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
33
analysis are statutorily enumerated,4 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1113[sic](k). A trial court
must “enter an order that makes specific findings of fact and conclusions of
law within thirty (30) days of the conclusion of the hearing.” Id. This
portion of the statute requires a trial court to make “findings of fact and
conclusions of law as to whether clear and convincing evidence establishes
the existence of each of the grounds asserted for terminating [parental]
rights.” In re Angela E., 303 S.W.3d at 255. “Should the trial court
conclude that clear and convincing evidence of ground(s) for termination
does exist, then the trial court must also make a written finding whether
clear and convincing evidence establishes that termination of [parental]
rights is in the [child’s] best interests.” Id. If the trial court’s best interests
analysis “is based on additional factual findings besides the ones made in
conjunction with the grounds for termination, the trial court must also
include these findings in the written order.” Id. Appellate courts “may not
conduct de novo review of the termination decision in the absence of such
findings.” Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 &
n.15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
4
Tenn. Code Ann. § 36-1-113(i).
34
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened
burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount
to clear and convincing evidence of the elements necessary to terminate
parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s
ruling that the evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela E., 303 S.W.3d at
246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).
We first consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven to terminate parental rights for abandonment by failure
to provide a suitable home pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-
102(1)(A)(ii). Tennessee Code Ann. § 36-1-113(g)(1) provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and nonexclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred;
Tenn. Code Ann. § 36-1-113(g)(1) (2017). As pertinent to the case now before us, Tenn.
Code Ann. § 36-1-102(1)(A)(ii) provides:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
***
35
(ii) 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. 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;
Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2017).
In the case now before us with regard to this ground for termination, the Juvenile
Court specifically found and held:
Ground One: Abandonment — Failure to Provide a Suitable Home,
Conclusions of Law: Karen Hudson, Department of Children’s
Services (“DCS”) caseworker attempted on multiple occasions to visit the
home of the Respondents but was largely unsuccessful. Ms. Hudson was
lied to by the Respondents as recently as May 17, 2017 regarding an
opportunity to visit their home. Ms. Hudson provided a resource packet to
the Respondents which provided them with a list of potential housing
opportunities. To their credit, the Respondents have routinely sprayed the
home for lice, and have called potential housing sources in an effort to find
other and suitable housing, but to no effect. However, in the eyes of the
Court, spraying a home for roaches and making some calls to find suitable
36
housing does not comprise reasonable efforts to provide a clean, safe,
suitable home.
In light of the repeated emphasis of DCS caseworkers, service
providers, and this Court regarding the necessity of establishing and
maintaining a safe and clean home, the efforts of the Respondents are
adjudged to be minimal, and while consistent, token. Reasonable efforts in
this case would involve cleaning the home and keeping it clean and free of
infestation and filth, keeping enough food in the home to feed all five
children, and providing adequate supervision to all of the children. To the
contrary, the Respondents have continued to reside in an inappropriate
home filled with lice, fleas, dog and cat feces, with insufficient food stores,
while turning the older kids loose to be supervised by their wits and any
neighbor who might, perchance, take one in. The younger children have
been subjected to lice, festering sores, and bug bites.
In spite of all the evidence to the contrary, and by their own
testimony, Respondents believe their house is fit for the children, even
though they have not made it readily available to inspection by DCS. DCS
made reasonable efforts to help the parents, but the parents have not been
cooperative. Parents have demonstrated such a lack of concern for their
children that it appears unlikely they will ever be able to provide a suitable
home for their children for any significant amount of time.
By clear and convincing evidence, the requirements of Tenn.
Code §§ 36-1-113(g)(1), 36-1-102(1)(A)(ii)„ [sic] have been met for
Abandonment for Failure to Provide a Suitable Home.
The evidence in the record on appeal, as discussed more fully above, does not
preponderate against these findings made by the Juvenile Court. We find no error in the
Juvenile Court’s determination that grounds were proven by clear and convincing
evidence to terminate Mother’s and Father’s parental rights to the Children for
abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. § 36-1-
113(g)(1) and § 36-1-102(1)(A)(ii).
We next consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven to terminate parental rights for substantial
noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2).
As pertinent, Tenn. Code Ann. § 36-1-113(g)(2) provides:
37
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to title
37, chapter 2, part 4;
Tenn. Code Ann. § 36-1-113(g)(2) (2017).
With regard to the ground of substantial noncompliance with the permanency plan,
the Juvenile Court specifically found and held:
Ground Two: Substantial Noncompliance with Permanency Plan,
Conclusions of Law” [sic] After the last removal, the Respondents were
required. among other thing [sic], to removal [sic] all pets from the home,
provide a lice-free medical statement, establish and maintain a safe and
clean home, acquire stable transportation and income, and rid their home of
insects and pets. The Respondents have maintained stable employment,
removed all pets but one, and have two cars for one driver. [Father] still
has a revoked license and is incapable of driving legally. Several weeks
after the last removal, the Respondents provided a lice-free medical
statement.
Although complying with certain aspects of their permanency plan,
Respondents have failed to comply with the most weighty and significant
requirement - - if you will, the sine qua non of their responsibilities. They
have failed to maintain and establish a safe and clean home for their
children, and they have failed to provide adequate supervision. At the time
of the removal, and as stated above, there were significant issues with lice,
fleas, bug bites, festering scalp bites, roach infestation, and a significant
lack of supervision.
This Court is tasked with considering both the degree of
noncompliance and the weight assigned to each particular requirement.
The Court concludes by clear and convincing evidence that the
Respondents are in substantial noncompliance with the great weight of their
permanency plan, which centered on and around the necessity of
establishing a suitable home.
By clear and convincing evidence, the requirements of Tenn. Code §§
36-1-113(g)(2)„ [sic] have been met for Substantial Noncompliance
with the Permanency Plan.
38
The evidence in the record on appeal, as discussed more fully above, does not
preponderate against these findings made by the Juvenile Court. We find no error in the
Juvenile Court’s determination that grounds were proven by clear and convincing
evidence to terminate Mother’s and Father’s parental rights to the Children for substantial
noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2).
Next, we consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven to terminate parental rights for persistence of conditions
pursuant to Tenn. Code Ann. § 36-1-113(g)(3). As pertinent, Tenn. Code Ann. § 36-1-
113(g)(3) provides:
(3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions
that in all reasonable probability would cause the child to be subjected to
further abuse or neglect and that, therefore, prevent the child’s safe return
to the care of the parent or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent or parents
or the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable
and permanent home;
Tenn. Code Ann. § 36-1-113(g)(3) (2017).
In the case now before us, the Juvenile Court made the following specific findings
and holdings with regard to the ground of persistence of conditions pursuant to Tenn.
Code Ann. § 36-1-113(g)(3):
Ground Three: Persistence of Conditions
Conclusions of Law: The children have been removed from the
home of Respondents for approximately 36 months, excepting two trial-
home visits, the last of which ended in September of 2016. After grounds
and best interests were not proven at the First Hearing the children were
placed back in the home of the Respondents in July of 2016, and
approximately two months later the children were removed for substantially
the same reasons as were pled by DCS [in] their first Petition to Terminate,
39
i.e. environmental neglect as evidenced by insect infestations, lack of
supervision, lack of food, etc.
Now, after nearly three years, and after promising to allow an
inspection in the final child and family team meeting in May, the
Respondents failed to allow their home to be inspected by DCS. At the last
visit to the home in April of 2017, the house had been fumigated and was
filled with dead roaches. However, this did not eradicate the problem, as
caseworkers witnessed other roaches crawling throughout the home.
Furthermore, during the same visit support services worker Stacie Weaver
found the home to have an overwhelming foul odor, found trash and broken
glass outside door of the home, found trash bags stacked inside the closets,
and blankets of the children were pulled back to reveal dead roaches and
spiders. Hairballs with dog feces were found in a bed, and at least 8 roach
traps were laid along the kitchen counter. Lice have been a recurring
problem.
The parents continue to have a work schedule which necessitates
being away from their children in the evenings and until the early morning,
and while stating they will change their work schedule it has yet to be done.
The Court finds by clear and convincing evidence that the conditions which
led to removal persist, that there is little likelihood that these conditions
will be remedied at an early date, and that the continuation of the parent and
child relationship will greatly diminish the chances of the children
integrating into a suitable and permanent home.
By clear and convincing evidence, the requirements of Tenn. Code §§
36-1-113(g)(3),, [sic] have been met for Persistence of Conditions.
The evidence in the record on appeal, as discussed more fully above, does not
preponderate against these findings made by the Juvenile Court. We find no error in the
Juvenile Court’s determination that grounds were proven by clear and convincing
evidence to terminate Mother’s and Father’s parental rights to the Children for
persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3).
Finally, we consider whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that it is in the Children’s best interests for Mother’s and
Father’s parental rights to be terminated. With regard to making a determination
concerning a child’s best interests, our Supreme Court recently instructed:
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When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory 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 Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child's best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon
the circumstances of a particular child and a particular parent, the
consideration of one factor may very well dictate the outcome of the
analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
S.W.3d at 194). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
more weight—even outcome determinative weight—to a particular
statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.
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In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In making its best interests analysis, in its June 28, 2017 order, the Juvenile Court
specifically found and held:
Best Interest
The minor children have been in the home of the foster parents for
the greater part of three years. The children and the foster parents have
stable, loving, nurturing, and fulfilling relationships. The older children are
doing well in school, and are generally more confident, more active in
extracurricular activities, and healthy. In short, the children are flowering
away from the Respondents.
On the other hand, while maintaining visits with the children,
Respondents have failed to make an adjustment of circumstances, conduct
or conditions as to make it safe and in the best interests of the children that
they ever return to the home of the Respondents. Reasonable efforts,
encouragement, imploring and services have been provided to Respondents,
but they continue to live in filth and infestation. In the eyes of the Court,
this cannot be reasonably be [sic] expected to permanently change.
In conclusion, it would be a great detriment to the children to change
their environment at this point in their lives. They are happily bonded and
thriving. The children need security, stability, and permanency, and
Respondents are simply unwilling to do what it takes to provide these core
needs. By clear and convincing evidence, this Court finds that it is in the
best interests of their respective children that the parental rights of [Father]
and [Mother] are forever severed.
By clear and convincing evidence, and pursuant to Tenn. Code § 36-1-
113(i), the Court finds that it is in the best interest of the children to
terminate the parental rights of [Father] and [Mother].
The evidence in the record on appeal, as discussed more fully above, does not
preponderate against these findings made by the Juvenile Court. Furthermore, we find no
error in the Juvenile Court’s determination that the combined weight of the factors
presents clear and convincing evidence that it is in the Children’s best interests for
Mother’s and Father’s parental rights to be terminated.
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As grounds for terminating Mother’s and Father’s parental rights to the Children
were proven by clear and convincing evidence and it was proven by clear and convincing
evidence that the termination of Mother’s and Father’s parental rights to the Children is
in the best interests of the Children, we affirm the Juvenile Court’s June 28, 2017 order
terminating Mother’s and Father’s parental rights to the Children.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the appellants, Barbara E. and Donald B.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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