In Re Adrian M.-M. ( 2019 )

10/30/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 1, 2019
IN RE ADRIAN M.-M., ET AL.
Appeal from the Chancery Court for Obion County
No. 33512 W. Michael Maloan, Chancellor
No. W2019-00931-COA-R3-PT
This appeal concerns termination of parental rights. The Tennessee Department of
Children’s Services (“DCS”) filed a petition in the Chancery Court for Obion County
(“the Trial Court”) seeking to terminate the parental rights of Emily M. M.-A. (“Mother”)
to her minor children Adrian, Maribel, Alisiana, and Elena (“the Children”).1 The
Children had been exposed to methamphetamine in Mother’s care. After trial, the Trial
Court entered an order terminating Mother’s parental rights to the Children on the
grounds of abandonment by failure to provide a suitable home; abandonment by failure to
visit; substantial noncompliance with the permanency plan; severe child abuse; and,
being sentenced to more than two years’ imprisonment for child abuse. The Trial Court
also found that termination of Mother’s parental rights is in the Children’s best interest.
On appeal, Mother argues that she has made improvements such that termination of her
parental rights is not in the Children’s best interest. First, apart from the grounds of
failure to visit and failure to provide a suitable home, which we reverse, we affirm the
grounds for termination found by the Trial Court. Regarding best interest, we find that
Mother has no meaningful relationship with the Children and that her purported
improvements are insufficient. The evidence is clear and convincing that termination of
Mother’s parental rights is in the Children’s best interest. We affirm, in part, and,
reverse, in part, the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, in Part, and Reversed, in Part; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and KENNY W. ARMSTRONG, J., joined.
1
DCS also sought to terminate the parental rights of Dionisio M.-A., the Children’s legal father, and
William M., alleged by Mother to be the biological father of Alisiana and Elena. The Trial Court
terminated the parental rights of both men. Neither man is a party on appeal. This appeal concerns
Mother’s parental rights only.
Cristy C. Cooper, Martin, Tennessee, for the appellant, Emily M. M.-A.
Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
In February 2017, the Children were removed from Mother’s custody on the basis
of domestic violence and drug abuse in the home.2 Mother and the Children tested
positive for methamphetamine. Afterwards, Mother was charged with aggravated child
abuse. In October 2017, Mother pled guilty to four counts of attempted aggravated child
abuse for which she received a sentence of eight years for each count running
concurrently. The sentence was suspended, and Mother was placed on supervised
probation. In November 2017, the Juvenile Court for Obion County (“the Juvenile
Court”) found the Children dependent and neglected and victims of severe child abuse.
Mother moved to Ohio, and the Children remained in Tennessee with a foster family.
Three permanency plans were fashioned for Mother with her participation over the
course of the case. Taken together, Mother’s responsibilities under the plans included:
pass consecutive drug screens; participate in any classes offered in jail; maintain contact
with DCS; update DCS of any changes of contact information within 24 hours; complete
a parenting assessment and follow all recommendations; complete a mental health intake
and an A & D assessment; and, address domestic violence issues through counseling.
In May 2018, DCS filed a petition in the Trial Court seeking to terminate Mother’s
parental rights to the Children. DCS alleged multiple grounds for termination:
abandonment by failure to provide a suitable home; abandonment by failure to visit;
abandonment by failure to support; persistent conditions; substantial noncompliance with
the permanency plan; severe child abuse; and, being sentenced to more than two years’
imprisonment for child abuse. This case was tried in April 2019. At the beginning of
trial, DCS stated that it would not be proceeding with the ground of failure to support.
Two witnesses testified at trial. First to testify was Brian Hill (“Hill”), a family
service worker for DCS. Hill was the Children’s case manager. Hill testified that the
Children were removed from Mother’s home in February 2017. Mother and the Children
tested positive for methamphetamine. Mother, who was incarcerated from March 31,
2
Adrian was born in February 2010; Maribel in August 2013; Alisiana in September 2015; and, Elena in
January 2017.
-2-
2017 to May 4, 2017, went into rehab at Buffalo Valley for 28 days. After her time in
rehab, Mother moved to Ohio where she has friends and family. Hill testified that it was
explained to Mother that her move to Ohio would make DCS’s task of assisting her more
difficult. Hill, who took over the case in May of 2018, stated that Mother had two
different addresses on his watch, and for a period she was out of touch with him. Hill
testified that no ICPC home study had been conducted on Mother because she moved so
frequently. Regarding visitation, Hill stated that Mother had visited the Children six
times for a total of twelve hours in the course of two years. When asked if Mother had
completed all of her permanency plan responsibilities, Hill testified: “No, ma’am,
because she failed to complete a parenting assessment, she failed to complete mental
health intake with the A and D assessment and to address domestic violence and
counseling.” Regarding DCS’s efforts, Hill stated:
Q. What reasonable efforts has the Department provided to the mother from
the time of the removal until this termination was filed?
A. Well, the mother entered rehab through our criminal court and since she
didn’t sign a release, the department was not able to work with her or
provide any additional services for the first 28 days. However, since that
time, the department has offered to set up parenting. We have attempted to
schedule a parenting assessment and pay for it. We have offered to assist in
finding housing here in Tennessee, to pay for drug screens, to conduct an
ICPC home study on her home in Ohio. We have offered gas cards and
hotels for the mother to use to come down and visit the children. We have
communicated with service providers in Ohio to explain the services
mother needed to complete on the permanency plan. We have offered
regular monthly visitation for the mother.
Q. Since the children have been removed from the mother, she has not
corrected the situation to make herself a suitable home to care for the
children; has she?
A. No, ma’am. Her moving to Ohio directly afterwards impeded her ability
to work services with the department.
With respect to the Children’s foster family, Hill testified:
Q. Are the children currently in an adoptive placement?
A. They are.
Q. How long have the children been in this adoptive placement?
A. They have been there since coming into custody.
Q. And 2 of the minor children were extremely young when they came into
custody, 1 and 1/2 years old, 6 weeks old. So would it be fair to say the
foster home is the only home they have known at this point in their lives?
-3-
A. Yes, ma’am.
Q. Would it be detrimental to the minor children for there to be a change in
placement?
A. Yes, ma’am.
Q. Do the children have a meaningful relationship with their mother?
A. The oldest two children, Adrian and Maribel, I would say they love their
mother. They are excited whenever she does come visit with then but I
wouldn’t characterize it as a meaningful relationship. I would say they are
more so bonded with one another and the foster mom.
Q. So you would say the children have a bond with the foster parents?
A. Yes. And the foster family.
Hill concluded his direct examination by testifying that Mother had made no
lasting changes to her lifestyle or conduct and that she had failed to demonstrate an
ability to provide a safe and stable home for the Children.
On cross-examination, Hill stated it was possible that Mother’s case could have
been referred to Ohio, but that he never implemented such a referral. Hill testified,
however, that “[w]e have worked with the mother and spoken to service providers there
in Ohio.” Hill could not identify the providers’ names but stated that they could be found
in the file. Hill stated further that he was unaware of any friends or relatives Mother had
in Tennessee. Hill acknowledged that Mother had passed three or four drug screens and
attended a rehab program.
Continuing his testimony, when asked if Mother brought any gifts on her visits,
Hill stated: “No, ma’am. And the visit that I supervised I had an issue with her being on
the phone facetiming.” Regarding whether he had ever spoken with Mother about
seeking services in Ohio, Hill stated that “she told me on several occasions that she was
starting” but “whenever I would ask her the name of where she was going and if she
signed paperwork for me to get that information, she was not able to provide that name.”
Hill testified that on each visit to Tennessee, Mother was provided gas cards and hotel
rooms.
Next and last to testify was Mother, who participated by telephone from Ohio.
Mother stated that she had successfully completed inpatient rehab at Buffalo Valley and
had a follow-up A & D outpatient treatment. Mother testified: “I have been doing the
process, I have been receiving A and D, counseling 101, and it is through an organization
here in Ohio called Anazo. I have mentioned it many of times to my case worker and I
did sign a medical, like a report, through Anazo.” Mother stated that she lived with her
mother, son, and older brother. Mother testified that her mother’s address was always
effective as a means of reaching her. When asked if she had provided DCS with proof of
-4-
her A & D, parenting classes, and mental health counseling, Mother stated “[n]o” because
“[t]hey don’t give me paperwork.”
Continuing her testimony, Mother stated that she worked at a factory prior to her
pregnancy. Mother testified that she then had a “bowel/intestine rupture” in her stomach,
so she cannot sit or travel. Mother stated that she could return to work after her
pregnancy. Regarding contact with the Children, Mother stated that she spoke to them by
phone at least every Sunday. Mother described her relationship with the Children as
“good.” Mother testified that traveling from Ohio to Tennessee and back was difficult.
Mother stated that she brought the Children gifts, such as shoes, when she visited them.
Concluding her testimony, Mother offered a host of excuses for why she did not
complete her services, hold a job for long, maintain a stable residence, or visit the
Children more often:
Q. Have you completed any of those services that you state you are
working on?
A. No. I still do that.
Q. So for a period of 2 years, you have been working on these services but
you haven’t completed a single one?
A. Yes, because my probation department said I needed to continue to do
that, that’s why. There is not a date for completion. I have to continue to
do them.
Q. If the department had contacted the facility that you claim that you are
receiving these services at and they say you missed 10 scheduled
appointments, would that be accurate?
A. Yes.
Q. Why are you missing those appointments?
A. I was in the hospital. I just got out. That is why I am not there. I have
been in the hospital, I moved, and you know I started working. Since my
kids have been gone, I have had 3 different jobs. So I am working and had
to reschedule my appointments because I am trying to work.
Q. Where have you worked in the time period since your children have
been removed?
A. I have worked at healthcare, I was working dietary in there and I got
fired because -- I had just got hired in there, I wasn’t even working like 2
weeks there. Then I had to come to Court in Tennessee. They told me they
had to let me go because I had just started. So I ended up leaving there so
they didn’t fire me. I worked at Autoplex, that is where I was working at
when I went to the hospital and had emergency surgery. I got put on -
because I had to lift a 70 pound box that was --
-5-
Q. Right. Where was your third job?
A. Then I worked at Taco Bell. I worked there for awhile. Then I was
working --
Q. So you have had 4 jobs?
A. Yes.
Q. Did you earn minimum wage at all of those jobs?
A. Yes.
Q. And you still could not send any child support for any of your children?
A. No. I could barely provide for myself.
Q. And how long have you been living at the address you are living at now?
A. I have been living here for awhile. I moved in and moved back.
Q. You have actually moved and moved back several times; is that true?
A. Yes.
Q. Why have you been moving in and out of that home?
A. Because it is crowded that is why. I sleep on the sofa, that’s why.
Q. So there is really no room for your children in that home; is that correct?
A. Yes, that is correct. There is no room here. I knew that.
Q. In the other homes you have lived in, you weren’t able to provide those
addresses to the department, were you?
A. Yes, I did.
Q. Are you sure about that?
A. Yes, I did. One was . . . Canton, Ohio, and the other one was Woodville,
Ohio. I supplied both of them.
Q. You don’t recall telling Mr. Hill on August 28th, 2018 that you had
recently moved in with a roommate but you could not recall the address?
A. I gave him the address. He had the address. That would have been the .
. . -- they had it - they sent me mail there.
Q. What grades are your children who attend school in?
A. Which children that I have or the ones there?
Q. The four children that we are in Court about today?
A. Adrian is in 2nd and Maribel she goes to pre-school/kindergarten. The
other 2 go to daycare.
Q. What about Maribel?
A. Maribel is the one I am talking about. She goes to kindergarten.
Q. What about Adrian?
A. 2nd grade.
Q. Who are their teachers?
A. That I don’t know.
Q. What are their grades?
-6-
A. I do know Adrian was struggling. They have one working with him.
There was a time they were struggling because Adrian was stealing things
so they were talking to Adrian about that. Yes.
Q. What are your children’s hobbies?
A. These questions were never ever asked until today. There are times I
don’t get to know everything because Miss [W.] is very busy with them.
She has a busy life.
Q. Alright, and you don’t get to know everything because you don’t bother
for the last 2 years -
A. I only get -
Q. You don’t know everything about your children because you have only
bothered over the course of more than 2 years to come see them for 12
hours. Would that be fair?
A. It is a 10 hour trip there and a 10 hour trip back. Does it look like I have
all the money in the world to travel all the time? All you want to say is I
don’t come see them. You know what, at least I accepted custody more
than their father ever did and I saw them all of the time.
MS. SIMPSON: Nothing further, Your Honor.
THE COURT: Anything further, Ms. Cooper?
MS. COOPER: No, Your Honor.
THE COURT: Anything, Ms. Mueller?
MS. MUELLER: No, sir.
[MOTHER]: All they can do is worry about me for 2 years and 12 hours to
see them. They want to fight with me about it now.
THE COURT: Alright, ma’am, that is enough. Your testimony is at an end.
In May 2019, the Trial Court entered its final judgment terminating Mother’s
parental rights. The Trial Court found, by clear and convincing evidence, the grounds of
abandonment by failure to provide a suitable home; abandonment by failure to visit;
substantial noncompliance with the permanency plan; severe child abuse; and, being
sentenced to more than two years’ imprisonment for child abuse. The Trial Court found
also that termination of Mother’s parental rights is in the Children’s best interest. In its
final judgment, the Trial Court stated, in part:
The minor children were removed from the legal and physical
custody of [Mother] on February 22, 2017, after the Department had made
reasonable efforts to prevent this removal. Testimony was that the
Department originally became involved with this family and filed a Petition
for an Order Controlling Conduct and for Protective Supervision, on
February 8, 2017, in an attempt to work services with the family to prevent
removal of the children. However, Mr. Hill testified that there was no
-7-
substantial compliance with these court ordered services prior to the
removal of the children a few weeks later. The relevant four month time
frame here is from February 23, 2017 until June 23, 2017, which is the first
four months after the removal of the children from [Mother’s] custody.
The evidence presented in this matter show that [Mother] has made no
reasonable efforts to provide a suitable home for her minor children during
the initial four months after the removal or at any throughout this case. The
evidence shows that the mother was incarcerated from March 31, 2017 until
May 4, 2017, at which time she was released to attend rehab. After leaving
rehab in late May of 2017, she moved immediately to Ohio. Her testimony
was that she has moved addresses several times during the course of this
case since being in Ohio even, and is currently residing with her mother
where there is not enough space for her and her children to reside. She
moved from Tennessee to Ohio first around the end of May 2017,
according to the testimony provided, despite being advised that this would
make working services with the Department more difficult. The
Department made reasonable efforts to assist the mother in this matter,
including offering parenting classes; attempting to schedule a parenting
assessment and pay for this assessment; offering to assist with finding
housing in Tennessee if she desired to remain or move back here; offering
drug screens; requesting ICPC home studies to be conducted in Ohio;
offering gas cards and hotel rooms to the mother for visitation with the
children; communicating with service providers in Ohio regarding the
services the mother needed to complete on the permanency plan; and
explored all relative options provided by the mother in Ohio. The mother
did enter into Buffalo Valley for rehab through her criminal charges, but
did not sign a release for the Department to communicate or work with her
while she was in this rehab program. Testimony provided was that upon
leaving the program at Buffalo Valley, the mother returned to Ohio, where
she has continuously lived since. The mother’s own testimony was that she
has not completed any other services either in Tennessee or in Ohio. The
mother testified she had begun services in Ohio, but offered several excuses
as to why she had not complete these over the last two years. The mother
has not, after more than two years, managed to complete the things
necessary for her to have a safe and suitable home for these minor children,
and therefore it does not appear that she will be able to do so at any time in
the near future.
Testimony was presented that the permanency plans created, ratified,
and found to be reasonably related to the reasons for the removal in this
matter required [Mother] to complete the following action steps: pay child
support; have regular scheduled visits that are positive and appropriate;
-8-
pass consecutive drug screens (urine, hair follicle, nail and mouth swab);
participate in classes provided by the jail if available; maintain contact with
the FSW and update the FSW with any changes in contact information
(phone number, address, etc.) within 24 hours of change; complete a
parenting assessment and follow all recommendations; complete a mental
health intake with an A&D assessment and follow all recommendations;
and address domestic violence during counseling. Mr. Hill testified that
[Mother] participated by phone in the making of that permanency plan, and
that the plan was ratified by the juvenile court. Mr. Hill also testified that
while the mother did go to Buffalo Valley for A&D issues, she did not sign
a release for the Department to have access to her records there, so
compliance could not be monitored. Testimony was that the mother did
submit to 3-4 drug screens, but that it was difficult to do random drug
screens as the Department could only administer them when the mother
came to Tennessee for planned visits. The testimony from Mr. Hill was
that the mother has not done the mental health intake, the parenting
assessment, nor has she addressed domestic violence issues in counseling.
When questioned about what services she had done while in Ohio, the
mother testified that though she has worked on some services throughout
the time she has been there, she has completed no services over the course
of the last two years. The mother presented no evidence as to any services
she has enrolled in or completed during the entirety of this case. The
mother participated in every permanency plan created in this matter, and
was aware of the requirements set forth for her in each plan.
As to the ground of persistent conditions, the children have been in
custody for approximately 26 months now, but the mother has lived in Ohio
for the majority of that time period. The Department has failed to prove
this ground by clear and convincing evidence. There has not been enough
evidence presented as to the living conditions of the mother in Ohio for this
ground to be satisfied.
The court will address the grounds of severe child abuse and the
mother’s sentence for child abuse together. The Obion County Juvenile
Court found, as the evidence presented shows, that the mother was the
perpetrator of severe abuse against the minor children due to all of them
failing drug screens for methamphetamine. This has been shown without
controversy. Further, the mother pled guilty to four counts of attempted
aggravated child abuse in the Obion County Circuit Court, and was
sentenced to 8 years, to be served on supervised probation, for each count.
All four certified judgments were entered without objection, and these
judgments show that the mother was indeed sentenced to a period of 2
-9-
years of greater for a child abuse charge. This is uncontested as a ground
against the mother, [Mother].
The final ground alleged against [Mother] is the ground of
abandonment-failure to visit. It was established in testimony that these
children have been in custody since February 22, 2017, which is
approximately 26 months as of this hearing date. The Department has
offered the mother gas cards for transportation, as well as hotel
accommodations when she came to visit. Despite this offer, the testimony
was uncontroverted that the mother has only exercised 12 hours of
visitation over the course of the 26 month period the children have been in
custody. There was testimony that the mother has had phone calls with the
minor children throughout the case, but the Court finds that this is not
substantial contact with the minor children due to their ages. This contact
was token at best, if even that. The mother acknowledged that she had not
visited more than what the Department testified to—the 12 hours over the
course of the case—and offered no explanation for why she did not other
than some medical issues she had recently had and her mother’s inability to
bring her. [Mother] took no personal responsibility for not visiting more
with her minor children.
The Court concludes, based upon evidence set forth above, that there
is clear and convincing evidence to support grounds for termination of the
Respondent, [Mother’s], parental rights under T.C.A. §36-1-113(g).
***
The evidence presented shows by clear and convincing evidence that
the mother has not consistently worked services with the Department to
address any of the issues or concerns identified as reasons the children were
initially removed from her. The mother has had 26 months to work
services, and testified herself she had never completed the mental health
services, the parenting services, the parenting assessment, and had not
established a safe and stable home for her and the children. The mother did
attend Buffalo Valley for her alcohol and drug issues, but never signed a
release for the Department to see what she completed and did there. The
mother has passed drug screens that the Department could give her, but
these were in the mother’s control as they could only be given when she
appeared in Tennessee.
Testimony was provided that the Department did provide reasonable
efforts to the mother to assist with making lasting changes in her lifestyle
and conduct, as set forth in the findings for the grounds above. The
Department even testified that they explained on several occasions to the
-10-
mother the difficulty her relocating to Ohio would create in providing
services to her.
The testimony was unrefuted that changing caregivers at this stage
of their lives would have a detrimental effect on the minor children, as they
are extremely bonded to the foster family, and have a warm loving
relationship with the foster mother. The minor children have no
meaningful relationship with [Mother]. When she was questioned about
the children, she could not identify their teachers and could not identify
what their hobbies were. [Mother] has not made an effort to know her
children and have a relationship with them since they were removed on
February 22, 2017. It would be extremely detrimental to move them from
the foster home that wishes to adopt them, and the home where they are all
placed together. The foster family wishes to adopt the minor children, and
to remove them from this safe and loving home at this point in their life
would be harmful to their well-being. The foster mother is the only parent
the youngest two minor children have ever really known, after being placed
there for approximately 2 years.
[Mother] has shown little or no interest in the welfare of the minor
children, and she has failed to maintain any type of consistent contact with
the minor children. [Mother] chose to put her own welfare and interests
above those of her minor children, as she almost immediately moved to
Ohio once her criminal issues here were resolved. The children had no
relatives left in Tennessee when the mother moved to Ohio. Though the
Department offered regular visitation to [Mother], including offering to
provide assistance with transportation expenses and with a hotel room,
[Mother] rarely took the Department up on this offer.
The Court does not have enough information about the mother’s
current living environment to know if it would be safe and healthy for the
minor children or whether there is illegal activity or drug/alcohol use in the
home, and therefore, this factor weighs neither for or against the best
interests analysis.
The mother has not participated in the mental health services
recommended by the Department, nor has she submitted to the parenting
assessment requested by the Department; therefore, the Court cannot
determine at this time if the mother’s mental or emotional state would be
detrimental to the children or determine if she could provide safe and stable
care and supervision for the minor children.
Based on the foregoing, the Court concludes by clear and convincing
evidence that termination as to Respondent, [Mother], is in the minor
children’s best interests.
-11-
Mother timely appealed to this Court.
Discussion
Although not stated exactly as such, Mother raises the following single issue on
appeal: whether the Trial Court erred by finding that termination of her parental rights is
in the Children’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
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.3 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
3
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.”
-12-
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
(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 36-1-113(c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(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 grounds4 for termination exists
4
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
-13-
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,5 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion
of the statute requires a trial court to make “findings of 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)).
5
Tenn. Code Ann. § 36-1-113(i).
-14-
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened
burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by
the trial court or as supported by a preponderance of the evidence, amount
to clear and convincing evidence of the elements necessary to terminate
parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s
ruling that the evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela E., 303 S.W.3d at
246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).
Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Mother has
not challenged any of the grounds for termination found against her. Our Supreme Court,
however, has instructed “that in an appeal from an order terminating parental rights the
Court of Appeals must review the trial court’s findings as to each ground for termination
and as to whether termination is in the child’s best interests, regardless of whether the
parent challenges these findings on appeal.” In re Carrington H., 483 S.W.3d at 525-26
(footnote omitted). As such, we review each of the grounds for termination.
Five grounds for termination of parental rights were found against Mother,
consisting of the following:
(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
-15-
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;
(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;
***
(4) The parent or guardian has been found to have committed severe child
abuse as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against the child who is
the subject of the petition or against any sibling or half-sibling of such
child, or any other child residing temporarily or permanently in the home of
such parent or guardian;
(5) The parent or guardian has been sentenced to more than two (2) years’
imprisonment for conduct against the child who is the subject of the
petition, or for conduct against any sibling or half-sibling of the child or
any other child residing temporarily or permanently in the home of such
parent or guardian, that has been found under any prior order of a court or
that is found by the court hearing the petition to be severe child abuse, as
defined in § 37-1-102. Unless otherwise stated, for purposes of this
subdivision (g)(5), “sentenced” shall not be construed to mean that the
parent or guardian must have actually served more than two (2) years in
confinement, but shall only be construed to mean that the court had
imposed a sentence of two (2) or more years upon the parent or guardian;
Tenn. Code Ann. § 36-1-113(g)(1)-(2), (4)-(5) (2017).6
As to abandonment, the Trial Court found that two forms—failure to visit and
failure to provide a suitable home—were proven:
6
We apply the parental rights termination statutes as they existed on May 23, 2018 when DCS filed its
petition.
-16-
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent or parents or the guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians either have willfully failed to
visit or have willfully failed to support or have willfully failed to make
reasonable payments toward the support of the child;
(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)(i)-(ii) (2017).
As an initial matter, DCS concedes the ground of abandonment by failure to visit.
Based on our review of the record, we agree that the evidence for this ground, while some
exists, does not rise to the level of clear and convincing. In light of DCS’s concession
and our own review of the record, we reverse the ground of abandonment by failure to
visit.
-17-
Regarding the ground of failure to provide a suitable home, the Children were
removed from Mother’s home on February 22, 2017 and later adjudicated dependent and
neglected. The relevant four month time-frame for this ground is February 23, 2017 until
June 22, 2017. Mother was incarcerated for part of this period, from March 31, 2017
until May 4, 2017. In late May 2017, Mother moved to Ohio, complicating DCS’s efforts
to assist her. The Trial Court found that DCS made reasonable efforts to assist Mother.
However, the findings made by the Trial Court do not, in our judgment, track specifically
enough to DCS’s efforts in the relevant four months. Certainly, Mother has not been
diligent in preparing a suitable home for the Children at any point, but we cannot just
ignore the statutory period for examining DCS’s efforts. We also are mindful that
Mother was incarcerated during part of that period, naturally hindering her ability to
provide a suitable home. Given these facts, we find that the evidence does not rise to the
level of clear and convincing necessary to prove this ground. We reverse the ground of
failure to provide a suitable home.
The next ground we review is that of substantial noncompliance with the statement
of responsibilities in the permanency plans. Mother took part in rehab and passed certain
drug screens. However, as found by the Trial Court and testified to by Hill, Mother
failed to complete mental health services, the parenting assessment, or address domestic
violence issues in counseling. The responsibilities contained in the permanency plans
were reasonably related to the conditions necessitating the Children’s removal from
Mother’s home, namely drug abuse and domestic violence. Mother’s failure to adhere to
her responsibilities under the permanency plans in these crucial respects represents
substantial noncompliance. The evidence does not preponderate against the Trial Court’s
findings relative to this issue. We further have no basis to disturb the Trial Court’s
implicit credibility determinations. We find, as did the Trial Court, that the ground of
substantial noncompliance was proven by clear and convincing evidence.
Another ground found against Mother was that of severe child abuse. In
November 2017, the Juvenile Court entered an order finding the Children dependent and
neglected and victims of severe child abuse perpetrated by Mother, stating as pertinent:
[T[here is clear and convincing evidence that the minor children are
dependent and neglected and victims of severe abuse pursuant to TCA 39-
15-401(b) and (c)(1), 39-15-402(a)(2) and 37-1-102(b)(22)(C) based upon
the mother and the minor children all testing positive for methamphetamine
and based upon the mother being charged with aggravated child abuse and
neglect under TCA 39-15-402.
Under Tenn. Code Ann. § 36-1-113(g)(4), this prior order finding severe child abuse
constitutes a ground for termination of parental rights. Mother has raised no argument as
-18-
to the finality or validity of the order. Indeed, Mother has not contested any ground at all.
We find, as did the Trial Court, that the ground of severe child abuse was proven by clear
and convincing evidence.
The fifth and final ground for termination we review is that of being sentenced to
more than two years’ imprisonment for child abuse. Mother pled guilty to four counts of
attempted aggravated child abuse, a class B felony, and received eight years of
supervised probation for each count to be served concurrently. The record contains
copies of the convictions. The crime for which Mother was convicted, attempted
aggravated child abuse at Tenn. Code Ann. § 39-15-402, falls within the definition of
severe child abuse at Tenn. Code Ann. § 37-1-102 as required by the applicable ground
for termination of parental rights, Tenn. Code Ann § 36-1-113(g)(5). See In re Kason C.,
No. M2013-02624-COA-R3-PT, 2014 WL 2768003, at *4 (Tenn. Ct. App. June 17,
2014), no appl. perm. appeal filed. We find, as did the Trial Court, that the ground of
being sentenced to more than two years’ imprisonment for child abuse was proven by
clear and convincing evidence.
The final issue we address is whether the Trial Court erred by finding that
termination of Mother’s parental rights is in the Children’s best interest. When at least
one ground is proven, courts then consider a number of statutory factors in determining
whether termination of parental rights is in a child’s best interest:
(i) In determining whether termination of parental or guardianship rights is
in the best interest of the child pursuant to this part, the court shall consider,
but is not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
-19-
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i) (2017).
Mother argues that it is not in the Children’s best interest for her parental rights to
be terminated. In support of her position, Mother points to Hill’s testimony that the two
older children love her. Mother asserts that she visited the Children when she was
financially and physically able to do so. Mother states further that she always maintained
telephone communication with the Children. As to her move to Ohio, Mother states that
she effectively had no choice as that is where her system support is and she would be
homeless if she had remained in Tennessee.
Respectfully, Mother’s argument is unavailing. The few positives put forward by
Mother pale in comparison to the negatives as regards preserving her parental rights.
While Mother points to Hill’s testimony about the older children loving her, she omits
what Hill stated next when he testified that “[t]hey are excited whenever she does come
visit with then but I wouldn’t characterize it as a meaningful relationship. I would say
they are more so bonded with one another and the foster mom.” Mother’s testimony
bears out this assessment. When asked questions about details of the Children’s lives at
trial, Mother became defensive, and it is evident that she is a remote figure to them.
-20-
To the extent Mother took some positive steps, such as going to rehab, she is to be
commended but it is not enough. The Trial Court made detailed findings as to the
Children’s best interest, including:
The mother has had 26 months to work services, and testified herself she
had never completed the mental health services, the parenting services, the
parenting assessment, and had not established a safe and stable home for
her and the children. The mother did attend Buffalo Valley for her alcohol
and drug issues, but never signed a release for the Department to see what
she completed and did there. The mother has passed drug screens that the
Department could give her, but these were in the mother’s control as they
could only be given when she appeared in Tennessee.
In view of these findings, which the evidence does not preponderate against,
Mother’s efforts at effecting lasting change were half-hearted and insufficient. The
Children were removed from Mother’s home because they were exposed to
methamphetamine and domestic violence. Mother has pled guilty to attempted
aggravated child abuse involving the Children. It was incumbent upon Mother to make
significant changes to rectify the dangerous conditions in her life, dangers that impacted
the Children in a serious way, to help ensure that those conditions would not resurface.
Mother has not done so, despite DCS’s efforts to assist. Mother has paid no child
support. She has minimally visited with the Children in person. Instead, she has offered
excuses, which the Trial Court clearly did not credit. Meanwhile, the evidence is
uncontroverted that the Children are in a suitable foster home. Prolonging the Children’s
limbo is not in their best interest when, after two years, Mother still has not made
demonstrable, lasting change.
The evidence does not preponderate against the Trial Court’s detailed factual
findings relative to the Children’s best interest, in consideration of each of the statutory
factors. We find by clear and convincing evidence, as did the Trial Court, that
termination of Mother’s parental rights is in the Children’s best interest. Apart from the
grounds of abandonment for failure to visit and failure to provide a suitable home, which
we reverse, we affirm the judgment of the Trial Court terminating Mother’s parental
rights to the Children.
-21-
Conclusion
The judgment of the Trial Court is affirmed, in part, and reversed, in part, and this
cause is remanded to the Trial Court for collection of the costs below. The costs on
appeal are assessed against the Appellant, Emily M. M.-A., and her surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
-22-