In Re: Kelty F. ( 2020 )

04/24/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 4, 2020
IN RE KELTY F.
Appeal from the Circuit Court for Hamblen County
No. 18CV065 Thomas J. Wright, Judge
___________________________________
No. E2019-01383-COA-R3-PT
___________________________________
This is a termination of parental rights case. The child at issue was removed after her
umbilical cord blood tested positive at birth for methamphetamine and amphetamine.
The trial court found, by clear and convincing evidence, that mother’s parental rights
should be terminated on the grounds of abandonment by the willful failure to visit and the
willful failure to provide a suitable home for the child, substantial noncompliance with
the permanency plans, persistence of conditions, and failure to manifest an ability and
willingness to assume custody or financial responsibility of the child. The trial court
further found, by clear and convincing evidence, that termination was in the best interests
of the child. Having reviewed the record on appeal, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and, JOHN W. MCCLARTY J., joined.
Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Tracy F.
Herbert H. Slattery, III, Attorney General and Reporter; Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. BACKGROUND AND PROCEDURAL HISTORY
The child at issue in this case, K.F. (“the Child”)1, was born on November 14,
1
In cases involving minor children, it is this Court’s policy to redact names sufficient to protect
the children’s identities.
2016 to Tracy F. (“Mother”) and Joseph F. (“Father”)2. Upon her birth, the Child’s
umbilical cord blood tested positive for methamphetamine and amphetamine. On
December 30, 2016, Mother and Father submitted to urine drug screens, and both tested
positive for methamphetamine. The Child was removed from their custody later that day.
Within the first month after the Child was removed from Mother’s and Father’s custody,
Mother informed April Hensley, the DCS family service worker assigned to this case,
that she was moving to Virginia to live with her parents.
On January 4, 2017, the Tennessee Department of Children’s Services (“DCS”)
filed a petition alleging that the Child was dependent and neglected based on the parents’
positive drug screens and the fact that the Child’s umbilical cord blood had tested
positive at birth. Additionally, DCS alleged that the Child was the victim of severe child
abuse. On March 22, 2017, the Hamblen County Juvenile Court (the “juvenile court”)
adjudicated the Child dependent and neglected and found that Mother had subjected the
Child to severe child abuse because she “knowingly and recklessly used illicit drugs . . .
during a time that she knew she was pregnant with the [C]hild while also knowing that
her actions were likely to cause serious bodily injury or death to the [C]hild.”.
Additionally, the juvenile court ordered that the Child remain in DCS custody. Mother
appealed the severe-abuse finding to the Hamblen County Circuit Court (the “trial court”)
on March 31, 2017.
On January 26, 2017, DCS developed a permanency plan for Mother.3 Under the
plan, Mother was required to, among other things: pay all child support as required by the
courts or child support enforcement; attend all scheduled visits and conduct herself in an
appropriate manner during such visits; complete parenting classes; submit to random
drug screens; demonstrate appropriate caregiving during all interactions with the Child;
maintain a budget and provide a copy of all bills and all income; complete alcohol and
drug, mental health, and psychological assessments; obtain and maintain a legal source of
income and provide proof thereof; ensure that all of the Child’s educational needs are
met; obtain and maintain safe and stable housing and provide proof thereof; and allow
DCS to conduct home studies. Mother, however, was noncompliant with the majority of
her responsibilities set out in the permanency plan throughout the custodial period,
especially those pertaining to her drug use and visitation. Mother admitted that she
continued to use drugs following the Child’s removal. Moreover, on March 22, 2017,
Mother again tested positive for methamphetamine and amphetamine, and she refused
two drug screens in July 2017 and one in October 2017. Mother did submit to a hair-
follicle drug screen on January 30, 2018—and tested positive for methamphetamine and
amphetamine—but that was the last time Mother submitted to a drug screen. As to
2
Father did not appeal the termination of his parental rights to the Child and is not a party to this
appeal.
3
A second permanency plan was developed for Mother on November 8, 2017. Mother’s
responsibilities under the second plan remained virtually unchanged from the first.
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Mother’s visitation, DCS offered her 46 visits throughout the custodial period, but she
only attended 15. 13 of those 15 visits occurred during the first year of the custodial
period. Additionally, in December 2017, Ms. Hensley arranged and received funding for
therapeutic visitations in order to assist Mother in dealing with the Child’s behavioral
issues during the visits. Eight therapeutic visitations were offered, but Mother only
attended one. Accordingly, the therapeutic visitations were cancelled in May 2018 due to
Mother’s noncompliance. At the time of trial on May 6, 2019, Mother had not visited the
Child since June 20, 2018.
On May 2, 2018, DCS filed a petition with the trial court to terminate the parental
rights of Mother and Father (the “Petition”). DCS sought termination on six grounds: (1)
abandonment by failure to visit the Child; (2) abandonment by failure to find a suitable
home; (3) substantial noncompliance with the permanency plan; (4) persistence of
conditions; (5) severe child abuse; and (6) failure to manifest an ability to parent. Upon
DCS’s motion, the trial court consolidated Mother’s severe-abuse appeal—from the
juvenile court’s April 13, 2017 dependency and neglect order—with the Petition.
Following a trial that was conducted on May 6, 2019, and, on July 5, 2019, the trial court
issued its order, wherein it terminated Mother’s and Father’s parental rights to the Child
on the grounds of abandonment by failure to visit the Child, abandonment by failure to
find a suitable home, substantial noncompliance with the permanency plan, persistence of
conditions, and failure to manifest an ability to personally assume custody of the Child.
The trial court, however, found that DCS failed to prove the ground of severe child abuse
by clear and convincing evidence.4 Additionally, the trial court found that termination of
Mother’s and Father’s parental rights was in the best interest of the Child. Mother timely
filed this appeal.
II. ISSUES PRESENTED
There are two dispositive issues on appeal, which we restate as follows:
1. Whether there is clear and convincing evidence to support at least one of the
five grounds found by the trial court for termination of Mother’s parental
rights.5
4
Specifically, the trial court concluded that DCS “failed to prove that Mother ‘knowingly’
exposed her unborn child to methamphetamine” because Mother had testified that she stopped using
drugs when she discovered that she was pregnant.
5
While Mother does not challenge the trial court’s findings as they pertain to the grounds for
termination, the Tennessee Supreme Court has instructed this Court to “review a trial court’s findings
regarding all grounds for termination and whether termination is in a child’s best interests, even if a
parent fails to challenge these findings on appeal.” In re Carrington H., 483 S.W.3d 507, 511 (Tenn.
2016).
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2. If so, whether there is clear and convincing evidence to support the trial
court’s determination that termination of Mother’s parental rights is in the
Child’s best interests.
III. STANDARD OF REVIEW
Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and that termination is in the child’s best interest. Tenn. Code
Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of a parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in
deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds
for termination and that termination of parental rights is in the child’s best interests must
be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In
re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth
of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence “produces in a fact-finder’s mind
a firm belief or conviction regarding the truth of the facts sought to be established.” Id.
In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).
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IV. GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
As noted earlier, the trial court relied on five statutory grounds in terminating
Mother’s parental rights: (1) abandonment by failure to visit the Child; (2) abandonment
by failure to find a suitable home; (3) substantial noncompliance with the permanency
plan; (4) persistence of conditions; and (5) failure to manifest an ability to parent.
Although only one ground must be proven by clear and convincing evidence in order to
terminate a parent’s rights, the Tennessee Supreme Court has instructed this Court to
review every ground relied upon by the trial court to terminate parental rights in order to
prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251 n.14
(Tenn. 2010). Accordingly, we will review each of the foregoing grounds on which the
trial court relied in terminating Mother’s parental rights.
A. Abandonment by Willful Failure to Visit and Willful Failure to Provide a
Suitable Home
The trial court found by clear and convincing evidence that Mother’s parental
rights should be terminated on the ground of abandonment by willful failure to visit and
willful failure to provide a suitable home pursuant to Tennessee Code Annotated sections
36-1-113(g)(1) and 36-1-102(1)(A)(i)-(ii).6 In pertinent part, Tennessee Code Annotated
section 36-1-113(g) 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
6
As this Court noted in a previous opinion:
Effective July 1, 2018, the General Assembly has amended Tennessee Code
Annotated § 36-1-102(A) to substitute the phrase, “proceeding, pleading, petition, or any
amended petition,” in place of “proceeding or pleading.” See 2018 Tenn. Pub. Acts, Ch.
875, § 1 (H.B. 1856). Pursuant to the same amendment, the words, “willful” and
“willfully,” have been deleted wherever they previously appeared in subsection - 102(1),
and a new subsection, -102(1)(I), has been added, providing that the “absence of
willfulness” shall be an affirmative defense to abandonment for failure to visit or support,
for which “[t]he parent or guardian shall bear the burden of proof.” See id. at § 2.
In re J’Khari F., M2018-00708-COA-R3-PT, 2019 WL 411538, at *4 (Tenn. Ct. App. Jan. 31, 2019).
Since the Petition in this case was filed in May 2018, prior to the amendment to the statute, we will
confine our analysis in this Opinion to the version of Tennessee Code Annotated § 36-1-102 in effect at
that time.
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occurred[.]
Tenn. Code Ann. § 36-1-113(g)(1). As is relevant here, Tennessee Code Annotated
section 36-1-102 defines abandonment as follows:
(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). Here, DCS filed the Petition on May 2, 2018,
and Mother was not incarcerated during the four months preceding the filing.
Accordingly, we look to the four-month period immediately preceding this date.
In In re Audrey S., this Court discussed willfulness in the context of termination of
parental rights cases:
The concept of “willfulness” is at the core of the statutory definition
of abandonment. A parent cannot be found to have abandoned a child
under Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either
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“willfully” failed to visit or “willfully” failed to support the child for a
period of four consecutive months . . . . In the statutes governing the
termination of parental rights, “willfulness” does not require the same
standard of culpability as is required by the penal code. Nor does it require
malevolence or ill will. Willful conduct consists of acts or failures to act
that are intentional or voluntary rather than accidental or inadvertent.
Conduct is “willful” if it is the product of free will rather than coercion.
Thus, a person acts “willfully” if he or she is a free agent, knows what he or
she is doing, and intends to do what he or she is doing . . . .
The willfulness of particular conduct depends upon the actor’s
intent. Intent is seldom capable of direct proof, and triers-of-fact lack the
ability to peer into a person’s mind to assess intentions or motivations.
Accordingly, triers-of-fact must infer intent from the circumstantial
evidence, including a person’s actions or conduct.
In re Audrey S., 182 S.W.3d 838, 863–64 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted).
The trial court found that Mother abandoned the Child by willfully failing to visit
her during the four months preceding the filing of the Petition to terminate her parental
rights. A parent willfully abandons his or her child by failing to visit them if he or she
fails to engage in more than mere “token visitation” with the child. Tennessee Code
Annotated section 36-1-102 defines “token visitation” as visitation that, under the
individual circumstances of the case, “constitutes nothing more than perfunctory
visitations or visitation of such an infrequent nature or of such short duration as to merely
establish minimal or insubstantial contact with the child[.]” Tenn. Code Ann. § 36-1-
102(1)(C).
Here, during the relevant statutory period, Mother visited the child only once—on
January 18, 2018—and the trial court found that the visit was only token visitation.
Accordingly, Mother’s failure to visit the Child clearly constitutes abandonment as
defined by the statute. Mother, however, maintains on appeal that her failure to visit was
not willful. Specifically, Mother states that, “[d]espite the distance to be traveled while
she lived in Virginia, she was never offered the option to visit with her child by video
chat or Facetime” and that DCS never attempted to assist her with transportation. The
trial court disagreed with Mother’s assertions, stating that, while “Mother claimed that
living in Virginia created difficulties in scheduling visitation[,] Mother had access to
transportation.” Specifically, the trial court stated as follows in its oral findings of fact:
I find that the failure to visit was willful. During the year that you [Mother]
had several visits, you were able to access not only how to do the visits, but
access transportation to get there. You testified about all the places that
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you worked. So, you were making money. And you certainly had the
ability to work. And you didn’t have any expenses for a significant part of
that period of time . . . . You were living at your parents’ house. And
sometimes you could get them to drive you and sometimes you couldn’t,
but there are other forms of transportation.
After our review of the record, we agree with the trial court that Mother’s failure to visit
was willful. Mother attempts to paint her failure to visit as being out of her control. See
In re A.M.H., 215 S.W.3d 793, 810 (Tenn. 2006) (“[A] parent who attempted to visit and
maintain relations with his child, but was thwarted by the acts of others and
circumstances beyond his control, did not willfully abandon his child.”); see also In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (“A parent’s failure to visit may be excused
by the acts of another only if those acts actually prevent the parent from visiting the child
or constitute a significant restraint or interference with the parent’s attempts to visit the
child.”). Here, Mother does not point to any acts by DCS that “thwarted” or “actually
prevented” her from visiting the Child. Moreover, the record reflects that Mother failed
to cooperate with DCS and never asked for assistance to be provided to her. Ms. Hensley
testified as follows:
Q: How many times did she [Mother] refuse to give you information?
A: Almost every time that I asked for information.
Q: How many times did she avoid answering direct questions?
A: Almost every time that I asked.
Q: How many times did she say DCS—that she did not need DCS’s help?
A: I know of at least two occasions.
Q: Okay. Did she ever ask you for a bus ticket to get form Virginia to
Tennessee to visit [the Child]?
A: No.
Accordingly, we conclude that there was clear and convincing evidence to establish that
Mother abandoned the Child by willfully failing to visit her during the relevant statutory
period.
The trial court also found that Mother abandoned the Child by willfully failing to
provide a suitable home. This Court has previously noted that “[a]n essential element of
this ground for termination is proof that ‘[t]he child has been removed from the home of
the parent . . . 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 . . . .’” In re Aiden R., No. E2015-01799-COA-
R3-PT, 2016 WL 3564313, at *7 (Tenn. Ct. App. June 23, 2016) (quoting Tenn. Code
Ann. § 37-1-102(1)(A)(ii)). “[T]he mere suggestion or possibility of an order
adjudicating the child dependent and neglected is not good enough.” In re R.L.M., No.
E2013-02723-COA-R3-PT, 2015 WL 389635, at *3 (Tenn. Ct. App. Jan. 29, 2015).
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Here, upon DCS’ petition, the juvenile court found that the Child was dependent
and neglected, and, on December 30, 2016, the Child was removed from Mother’s
custody. Additionally, the juvenile court found that, “based on an assessment of the
family and the [C]hild’s circumstances, it was reasonable to make no effort to maintain
the [C]hild in the home.” Further, the record reflects that DCS made reasonable efforts to
assist Mother in establishing a suitable home for the Child. Ms. Hensley testified that,
throughout the custodial period, she requested and received funding for Mother’s alcohol
and drug assessments, provided Mother with a list of local job-assistance programs and
local resources in Virginia, including information on housing, employment, food stamps,
and mental health providers.
While there is evidence of DCS’s efforts, there is little, if any, evidence that
Mother reciprocated those efforts, especially with regard to her substance abuse
issue and unstable housing situation. DCS’s efforts to assist a parent 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). Similarly, as this Court has stated,
“parents desiring the return of their children must also make reasonable and
appropriate efforts to rehabilitate themselves and to remedy the conditions that
required [DCS] to remove their children from custody.” In re Shameel S., No.
E2014-00294-COA-R3-PT, 2014 WL 4667571, at *5 (Tenn. Ct. App. Sept. 19,
2014). After the Child’s removal, Mother advised DCS that she was moving back
to Virginia to live with her parents. Throughout the custodial period, however,
Mother never allowed Ms. Hensley to engage with or contact her parents, which,
in turn, prevented DCS from determining the home’s suitability for the Child.
Specifically, Ms. Hensley testified that, when she tried to procure such
information, “[Mother] got very upset and stated that she did not want her family
involved in the case at all and she stated that she would rather have her child in
foster care than living with her parents.” Further, Ms. Hensley testified that she
was never entirely sure of Mother’s whereabouts, stating that Mother was “kind of
hard to keep up with” and that she traveled “back and forth several times from
Virginia to Tennessee.” With respect to Mother’s lack of stable housing, Ms.
Hensley testified as follows: “[Mother] would occasionally tell me she was staying
with some friends at this time and then staying somewhere else another time. She
always considered her parents’ house as her residence, but she kind of told me one
time that’s where her clothes stayed.” Ms. Hensley even testified that Mother had
represented to her that she was homeless on multiple occasions. As to her
substance abuse issue, Mother admitted that she had used methamphetamine on
multiple occasions following the Child’s removal.7 Mother tested positive for
7
Specifically, Mother testified as follows:
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methamphetamine and amphetamine in March 2017 and refused two drug screens
in July 2017. Mother last submitted to a drug screen in January 2018 and tested
positive for methamphetamine and amphetamine.
After our review of the record, we agree with the trial court’s finding that there is
clear and convincing evidence that Mother abandoned the Child by failing to provide a
suitable home, despite reasonable efforts made by DCS to assist her in doing so.
Moreover, we find that it appears unlikely that Mother can establish a suitable home for
the Child at an early date. Throughout the custodial period, Mother did not adequately
address her unstable housing and substance abuse issues. Accordingly, we affirm the
trial court’s finding, by clear and convincing evidence, that Mother abandoned the Child
pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(ii) by willfully failing to
provide a suitable home for the Child.
B. Substantial Noncompliance with Permanency Plan
The trial court also based its termination of Mother’s parental rights on her failure
to comply with the permanency plans developed by DCS. Tennessee Code Annotated
section 36-1-113(g)(2) provides that grounds for termination may exist when “[t]here has
been substantial noncompliance by the parent or guardian with the statement of
responsibilities in a permanency plan[.]” Tenn. Code Ann. § 36-1-113(g)(2). As this
Court has previously explained:
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and
tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
113(g)(2), the Department must demonstrate first that the requirements of
the permanency plan are reasonable and related to remedying the conditions
that caused the child to be removed from the parent’s custody in the first
place, and second that the parent’s noncompliance is substantial in light of
the degree of noncompliance and the importance of the particular
requirement that has not been met. Trivial, minor, or technical deviations
from a permanency plan’s requirements will not be deemed to amount to
substantial noncompliance.
In re M.J.B., 140 S.W.3d at 656–57 (internal citations omitted). Additionally, because
Q: Do you recall how many times you used methamphetamines since [the Child]
was in custody?
A: Maybe a handful.
....
Q: More than five?
A: Probably more than five.
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determining whether substantial noncompliance exists is a question of law, we review the
issue de novo with no presumption of correctness. In re Valentine, 79 S.W.3d at 548.
Here, the first permanency plan was developed for Mother on January 26, 2017
and ratified by the juvenile court on March 22, 2017; the second permanency plan was
developed on November 8, 2017 and ratified on March 26, 2018. As noted above, the
primary issues underlying the Child’s removal were those pertaining to Mother’s
substance abuse and unstable housing situation. Accordingly, the permanency plans’
responsibilities requiring Mother to submit to drug screens and to complete alcohol, drug,
and mental health assessments were reasonably related to Mother’s substance abuse
issue. Similarly, the plans’ responsibilities requiring Mother to obtain and maintain safe
and stable housing, to provide proof thereof, and to allow DCS to enter the home and
conduct home studies were reasonably related to Mother’s unstable housing situation.
As previously noted, however, Mother admitted to using methamphetamines on
multiple occasions following the Child’s removal, and she refused multiple drug screens
throughout the custodial period. Mother never completed a psychological assessment,
despite DCS’ efforts in obtaining funding for the assessment and notifying Mother when
such funding was approved. As to the permanency plans’ responsibilities pertaining to
visitation, Mother was offered 46 visits, but she attended only 15.8 Further, Mother did
not comply with the plans’ responsibilities pertaining to her unstable housing situation.
Mother considered her parents’ home in Virginia as her primary residence—despite
bouncing around from place to place—but never permitted DCS to contact her parents or
to conduct a home study at their home. Additionally, Mother testified that she moved in
with Father’s ex-stepmother in Morristown, Tennessee in January 2019, but she never
responded to DCS’ request to conduct a home study there, either. Mother completed very
few of her responsibilities under the permanency plans, and, more significantly, she
failed to comply with the responsibilities aimed at addressing her substance abuse issue
and unstable housing situation. Accordingly, we affirm the trial court’s finding, by clear
and convincing evidence, that, pursuant to Tennessee Code Annotated section 36-1-
113(g)(2), Mother was substantially noncompliant with her responsibilities under the
permanency plans.
C. Persistence of Conditions
The trial court also relied on Tennessee Code Annotated section 36-1-113(g)(3) as
a ground for terminating Mother’s parental rights, which provides that parental rights
may be terminated when the child has been removed from the home of the parent by
order of a court for a period of six months and:
(A) The conditions that led to the child’s removal or other conditions that in
8
Moreover, of the 15 visits she did attend, Mother ended at least three of them early.
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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 . . . 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 . . . in the
near future; and
(C) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chance of early integration into a safe, stable and
permanent home.
Tenn. Code Ann. § 36-1-113(g)(3). The purpose behind the persistence of conditions
ground for terminating parental rights is “to prevent the child’s lingering in the uncertain
status of foster child if a parent cannot within a reasonable time demonstrate an ability to
provide a safe and caring environment for the child.” In re Arteria H., 326 S.W.3d 167,
178 (Tenn. Ct. App. 2010). In In re Mickia J., this Court held that, “as a threshold
requirement for applicability of the ground of persistence of conditions in termination of
parental rights cases, the child must not only have been adjudicated dependent and
neglected, but he or she must also have been removed from the defendant parent’s
home.” In re Mickia J., No. E2016-00046-COA-R3-PT, 2016 WL 5210794, at *5 (Tenn.
Ct. App. Sept. 19, 2016). Here, the trial court adjudicated the Child dependent and
neglected and a victim of severe child abuse, and the Child was removed from Mother’s
custody and placed in the custody of DCS on December 30, 2016.
In its order terminating Mother’s and Father’s parental rights, the trial court found
that Mother had not properly addressed her substance abuse issue and unstable housing
situation. With respect to the former, the trial court found, in relevant part, that
[the Child] was in foster care for approximately two (2) and a half years at
the time of the hearing. She was removed from her parents[’] care and
custody because of drug abuse. After her removal, the parents moved to
Virginia. Other conditions arose that prevented the parents from regaining
custody, such as homelessness and unemployment . . . . Mother continued
to test positive for methamphetamine throughout the early stages of this
custodial episode incident, and even admitted to occasionally using
methamphetamine . . . . Furthermore, by her own admission, Mother
refused to submit to any drug screens until DCS required the foster mother
to do the same. While Mother adamantly denies that she is a drug addict,
this Court is unconvinced by her words. Mother has provided no proof that
she has addressed her substance abuse problem[.].
Moreover, the trial court found that the conditions that led to the Child’s removal still
existed, preventing the Child from returning safely to the custody of Mother. We agree.
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As noted throughout this opinion, and as specifically noted by the trial court in its
termination order, one of the primary concerns underlying the Child’s removal was
Mother’s substance abuse. However, at the time of trial on May 6, 2019, this concern
still persisted. Mother admitted to using methamphetamine on multiple occasions
following the Child’s removal, and she failed9 and refused multiple drug screens
throughout the custodial period. Other concerns underlying the Child’s removal also
persisted. Mother failed to complete a psychological assessment; she failed to provide
DCS with the necessary information and access in order to determine whether her living
situation was stable and, thus, suitable for the Child; and, while she did tell Ms. Hensley
that she was gainfully employed, she failed to provide proof of such employment.
Mother’s failures persisted throughout a two-and-a-half-year period, from the Child’s
removal on December 30, 2016 to the date of the trial on May 6, 2019. While
“[p]ersistence of conditions focuses ‘on the results of the parent’s efforts at improvement
rather than the mere fact that he or she had made them[,]’” Mother, here, put forth
minimal effort to improve the conditions that led to the Child’s removal and, thus, has
little, if any, results to show for it. Accordingly, we agree that the evidence clearly and
convincingly establishes the elements necessary to terminate Mother’s parental rights on
the ground of persistence of conditions.
D. Failure to Manifest an Ability and Willingness to Assume Custody
Lastly, the trial court relied on Tennessee Code Annotated section 36-1-113(g)(14)
as a ground for terminating Mother’s parental rights, which provides that a parent’s rights
may be terminated if that parent
has failed to manifest, by act or omission, an ability and willingness to
personally assume legal and physical custody or financial responsibility of
the child, and placing the child in the person’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological
welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). This ground for termination requires DCS to
establish two elements by clear and convincing proof. In re Maya R., No. E2017-01634-
COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018). As to those
elements, this Court has stated the following:
DCS must prove that [the parent] failed to manifest “an ability and
willingness to personally assume legal and physical custody or financial
responsibility of the child[ren].” DCS must then prove that placing the
children in [the parent’s] “legal and physical custody would pose a risk of
9
Notably, the last drug screen to which Mother submitted was on January 30, 2018—within the
relevant statutory period. She tested positive for both methamphetamine and amphetamine.
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substantial harm to the physical or psychological welfare of the child[ren].”
Id. at *7-8 (internal citations omitted).
As to the first element, “[a]bility focuses on the parent’s lifestyle and
circumstances[,]” In re Serenity W., No. E2018-00460-COA-R3-PT, 2019 WL 511387, at
*6 (Tenn. Ct. App. Feb. 8, 2019), and “[p]arents demonstrate willingness by attempting
to overcome the obstacles that prevent them from assuming custody or financial
responsibility for the child.” In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL
1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019). Here, Mother made little effort to adjust
her lifestyle and circumstances. She admitted to using methamphetamines multiple times
during the custodial period, she failed to complete a psychological assessment, she never
provided DCS with proof of income, and she never provided DCS with the necessary
access or information regarding her living situation. This same evidence supports our
conclusion that placing the Child in Mother’s custody “would pose a risk of substantial
harm to the physical or psychological welfare of the [C]hild.” Tenn. Code Ann. § 36-1-
113(g)(14). Further, while Mother failed to address the concerns that led to the Child’s
removal, the Child has been living with her current pre-adoptive foster family—the same
family with whom the Child has lived since she was one month old, which, by the time of
trial, had been two-and-a-half years. In In re Amynn K., we determined that placing the
child at issue in the legal and physical custody of her father would pose a risk of
substantial harm to her physical and psychological welfare, one reason being because
“the Child had been placed with the foster parents for four years and had developed a
bond with them.” In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at
*15 (Tenn. Ct. App. June 20, 2018). Here, the Child had lived with the foster family for
two-and-a-half years following her removal from Mother’s custody soon after the Child’s
birth. Moreover, Robin Franklin, the Child’s foster mother who has five children of her
own, testified that the Child has adjusted well and interacts well with everybody in the
home. Ms. Franklin also testified that the Child refers to her and her husband as
“mommy” and “daddy”. Based on the evidence presented, we conclude that DCS has
proven by clear and convincing evidence that Mother failed to manifest an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the Child and that placing the Child in Mother’s legal and physical custody would pose a
risk of substantial harm to the physical or psychological welfare of the Child.
Accordingly, and considering our affirmance of the other four statutory grounds at issue,
we affirm the trial court’s findings regarding the existence of the five statutory grounds
for termination of Mother’s parental rights.
V. BEST INTERESTS
Having found at least one statutory ground on which to sustain termination of
Mother’s parental rights, we must now consider whether DCS has proven by clear and
convincing evidence that termination of Mother’s parental rights is in the Child’s best
interests. See Tenn. Code Ann. § 36-1-113(c)(2). Once the court has determined that the
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parent is unfit based on clear and convincing evidence that one or more of the grounds for
termination exists, the interests of the parent and child diverge, and the interests of the
child become the court’s paramount consideration. In re Audrey S., 182 S.W.3d at 877.
If the interests of the parent and the child conflict, the court must always resolve the
conflict in favor of the rights and best interests of the child. Tenn. Code Ann. § 36-1-
101(d). Tennessee Code Annotated section 36-1-113(i) sets forth the following list of
factors to be considered when determining a child’s best interests in a termination of
parental rights case:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i). Because long-term foster care is disfavored, “many of
the statutory best interest factors relate to the likelihood that the child will be able to
leave foster care and return to the parent’s home in the near future.” In re Adoption of
J.A.K., No. M2005-02206-COA-R3-PT, 2006 WL 211807, at *4 (Tenn. Ct. App. Jan. 26,
2006). If that likelihood is remote, “the best interest of the child often lies in termination
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of parental rights so that the child can attain the security and stability of a permanent
home through adoption.” Id.
Here, the trial court found by clear and convincing evidence that it was in the best
interest of the Child to terminate Mother’s parental rights. Specifically, it found as
follows, in relevant part:
Based upon the evidence, the overriding interest is the [C]hild’s
stability. [The Child] has remained in the same foster home since her
removal. The foster mother, Ms. Franklin, is attentive to her medical needs
and is devoted to ensuring that the [C]hild has the best opportunities
possible for normalcy. In order for this to be attained, [the Child] requires
consistency and stability. There is no question her needs are met in her
current foster home. She has bonded well with her foster parents and their
other children. Mr. and Ms. Franklin love her and wish to adopt her.
The hallmark of the parents’ history during the course of this case is
instability. Mother and Father have bounced in and out of the [C]hild’s
life. They have bounced from home to home. Mother’s had several
different jobs. She claims that she does not have a drug problem, but
continues to use methamphetamine.
After our review of the record, we agree with the trial court and conclude that Mother has
failed to make any lasting adjustment that would allow for reunification with the Child,
and, as such, the best interest factors weigh in favor of terminating Mother’s parental
rights.
DCS became involved with Mother and the Child after receiving three referrals
alleging that the Child had been exposed to drugs.10 On December 30, 2016, Mother and
Father submitted to drug screens, and both tested positive for methamphetamine, and the
Child was removed from their custody and placed in the custody of DCS later that day.
Mother has admitted that she continues to use drugs; she has not allowed DCS to conduct
a home study, and she has failed to comply with or complete several of the permanency
plans’ requirements ; she has failed to exercise regular visitation, and, as a result, has no
meaningful relationship with the Child .11 Accordingly, Mother has failed to show that
she can provide a healthy and safe physical environment for the Child, and we find that
changing caretakers and the Child’s physical environment would likely have a negative
effect on the Child’s psychological well-being.
10
The first and second referrals were screened out, the first because Mother and Father reportedly
lived in Wise County, Virginia, and the second because the referral did not contain information regarding
their location.
11
In fact, Ms. Franklin testified that, at some of the visits Mother did attend, the Child “was
scared” and that there was “very limited interaction.”
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Mother argues on appeal that, “while the Court examined each of the nine
factors[,]” it “did not make findings of facts of all the factors that the Court listed in it’s
[sic] oral findings.” Specifically, Mother argues that the trial court “failed to make full
findings of facts on factor [sic] 3, 4, 5, 7, and 8 as to whether they would weigh in favor
or against the termination being in the [C]hild’s best interest.” We disagree. Firstly, as
this Court has previously stated, “[a]scertaining a child’s best interests does not call for a
rote examination of each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against the parent.” In
re Audrey S., 182 S.W.3d at 878. Moreover, because “[t]he relevancy and weight to be
given each factor depends on the unique facts of each case[,]” depending upon the
circumstances of a particular child and a particular parent, “the consideration of one
factor may very well dictate the outcome of the analysis.” Id. (citing White v. Moody,
171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)). Secondly, we find that the trial court’s oral
findings of fact, announced from the bench following the trial on May 6, 2019, as well as
those contained in its final order, issued on July 5, 2019, are very detailed and sufficient.
Mother also makes numerous other arguments as to why the trial court erred in its
best interest analysis. For example, Mother argues that she completed an alcohol and
drug assessment. However, satisfying a responsibility in a permanency plan does not
make up for the fact that Mother (1) admitted to using methamphetamines on multiple
occasions following the Child’s removal and (2) refused multiple drug screens
throughout the custodial period. Mother also argues that she was employed at Subway
and that, at the time of trial, she had recently been hired by Home Health Care. Again,
however, Mother neglects important facts. While the permanency plans required Mother
to obtain stable employment, they also required her to provide proof thereof—such as by
providing at least three months of paystubs—which Mother never did. Mother also
argues that DCS “never considered contacting the sister agency in Virginia to see what
services they could assist the mother in completing.” Ms. Hensley, however, testified
that she personally put together a packet with information regarding resources in
Virginia. Specifically, Ms. Hensley testified as follows:
Q: Can you tell the Court what you did as far as your efforts to help her
while she was in Virginia?
A: Yes. While she was in Virginia, I went on to a Google search and I
looked up providers in Virginia and sent her almost like a community
resources packet that I made up on my own.
Q: Uh-huh. And what, what was included in that packet?
A: Housing information, like SNAP information for Food Stamps, job
employment places, and also like mental health providers.
In light of the foregoing, we are satisfied that the record contains clear and convincing
evidence that terminating Mother’s parental rights is in the Child’s best interests.
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VI. CONCLUSION
For the foregoing reasons, the judgment of the trial court is hereby affirmed.
_________________________________
ARNOLD B. GOLDIN, JUDGE
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