In Re Johnathan T. ( 2020 )

06/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 1, 2020
IN RE JOHNATHAN T. ET AL.
Appeal from the Juvenile Court for Campbell County
No. 2019-JC-4 Amanda Sammons, Judge
___________________________________
No. E2019-01398-COA-R3-PT
__________________________________
Jodie T. (“Mother”) appeals the termination of her parental rights to the minor children,
Johnathan T., Jaylynn T., Jayla T., Johnna T., and Jaydan T. (collectively, “the
Children”). In January 2019, the Tennessee Department of Children’s Services (“DCS”)
filed a petition to terminate Mother’s rights to the Children in the Campbell County
Juvenile Court (“Juvenile Court”). Following a hearing in June 2019, the Juvenile Court
terminated Mother’s parental rights after finding that DCS had proven the statutory
ground of substantial noncompliance with the permanency plans and that termination of
Mother’s parental rights was in the Children’s best interest. Mother timely appealed.
Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and CARMA DENNIS MCGEE, JJ., joined.
Grae A. Hinds, Knoxville, Tennessee, for the appellant, Jodie T.
Herbert H. Slatery, III, Attorney General and Reporter, and Jeffrey D. Ridner, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
DCS became involved with the Children after the Juvenile Court entered a
“Temporary Bench Order of Custody” in November 2017, placing the oldest child,
Johnathan, into DCS custody upon its determination that probable cause existed to
believe Johnathan was dependent and neglected. Also in November 2017, DCS
subsequently filed a petition to transfer legal custody of Johnathan’s siblings to the
custody of their grandparents. DCS also began a trial home visit with Johnathan in the
grandparents’ home. In January 2018, the Juvenile Court entered an adjudicatory hearing
order which reflected that both parents stipulated that the Children were dependent and
neglected at the time of their removals due to the parents’ substance abuse issues existing
at that time.
While Johnathan was in DCS custody, DCS created a permanency plan in January
2018, which reflected that Mother had completed an alcohol and drug assessment. She
had also begun the “STOP Program” through Ridgeview. This plan also stated that
Mother had completed a mental health intake at Ridgeview and had begun individual
therapy and medication management. Additionally, Mother had begun parenting
education classes. The plan required Mother to submit to random drug screens and pill
counts and maintain housing and income. Following the conclusion of Johnathan’s trial
home visit, custody of Johnathan was released from DCS and placed with the
grandparents.
Subsequently, the Children’s behavioral issues became more than the grandparents
could handle, and they were unable to continue caring for the Children. In April 2018,
DCS filed a petition requesting that custody of the Children be placed with DCS. At a
subsequent adjudicatory hearing, the parents stipulated to “continued unavailability based
on the prior adjudication.” The Juvenile Court, therefore, found the Children to be
dependent and neglected and determined that the Children should remain in DCS
custody.
DCS developed a permanency plan for all of the Children in May 2018, which
included the following requirements for Mother: (1) follow all recommendations from a
mental health assessment upon completion of the STOP Program, (2) provide a copy of
the mental health assessment to DCS and sign a release to allow DCS to obtain records;
(3) follow all recommendations from her alcohol and drug assessment upon completion
of the STOP Program, (4) provide a copy of the alcohol and drug assessment to DCS, (5)
submit to and pass random drug screens and pill counts, (6) attend therapeutic visitation
with the Children, (7) attend family therapy, (8) allow DCS to conduct home visits and
provide proof of utilities and housing, (9) provide proof of employment, (10) obtain
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reliable and legal transportation, and (11) pay child support. Mother did not participate in
the development of the plan but was provided a copy of the plan. However, Mother was
present in court when the plan was approved by the Juvenile Court. In its June 2018
permanency hearing order, the Juvenile Court found that the requirements in the plan
were reasonably related to the reasons necessitating foster care and in the Children’s best
interest.
Mother’s home burned in September 2018. DCS developed a subsequent
permanency plan in October 2018, with an additional requirement that Mother obtain and
maintain safe and stable housing. This permanency plan included the previous
requirement that Mother follow recommendations from a mental health assessment upon
completion of the STOP program but also specifically required Mother to have a mental
health assessment to address her mental health needs. Mother participated in the
development of this plan. The Juvenile Court held a permanency hearing in October
2018, in which Mother was in attendance. The Juvenile Court found that the
requirements of this plan were reasonable and related to the reasons the Children were in
foster care and were in the Children’s best interest. DCS subsequently developed a
permanency plan in March 2019, which added an additional requirement that Mother
attend all court dates concerning her pending criminal charges.
In January 2019, DCS filed a petition to terminate Mother’s parental rights to the
Children.1 The Juvenile Court conducted a trial in June 2019. Mother failed to appear
for trial. The Juvenile Court heard testimony during trial from John P. (“Father”) and
Emely Ford, the Children’s DCS case manager. Following trial, the Juvenile Court found
that DCS had proven by clear and convincing evidence the statutory ground of substantial
noncompliance with the permanency plan and that termination of Mother’s parental
rights was in the Children’s best interest. In its July 2019 judgment, the Juvenile Court
found as follows as relevant to the termination of Mother’s parental rights:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
***
On January 10, 2018, the Court found by clear and convincing
evidence that the children were dependent and neglected due to the parents’
substance abuse issues.
Subsequent to the removal of the children, the Department made
reasonable efforts to assist the parents to be reunified with their children
including referring the parents for an alcohol and drug assessment and
1
DCS’s petition also sought to terminate Father’s parental rights, but he is not a party to this appeal.
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referral to services to complete recommendations from the assessment;
referring the parents for a mental health assessment; providing drug tests to
the parents; providing child and family team meetings; providing visitation
with the children; assisted with housing; providing ongoing case
management; providing medical care and dental care for the children;
providing ongoing advice and recommendations to the parents; providing
daily care and support for the children; and developing a plan for
reunification with the parents.
Despite these reasonable efforts by the Department, the parents
failed to make similar reasonable efforts to be reunified with their children.
The parents have either refused drug screens or failed drug screens. The
parents have failed to complete recommendations from their alcohol and
drug assessments. The parents have failed to fully address their substance
abuse issue and continue to abuse illegal substances. The parents do not
[have] safe and appropriate housing for the children. In short, neither
parent has substantially complied with their requirements under the
permanency plans. Returning the children to the parents at this time would
certainly cause the children to be further subjected to abuse or neglect and
there is no indication that the parents will be willing or able to remedy their
circumstances and conditions in a timely manner, if at all.
The children are in a safe and appropriate foster home. The children
are thriving in this environment and would be harmed if removed from this
environment.
***
GROUND ONE
SUBSTANTIAL NONCOMPLIANCE WITH PERMANENCY PLAN
T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2)
As to Both Parents
In this case, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-
2-403(a)(2), the Court finds that there is clear and convincing evidence that
despite reasonable efforts by the Department to assist them, the mother and
father have willfully failed to substantially comply with their requirements
under the permanency plan designed to facilitate reunification of the
children with them.
The Court finds that poverty is not what led to this situation. It is
free to pee in a cup; it is free to show up to visits; free to complete inpatient
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or outpatient drug treatment at Ridgeview when you have Tenncare and that
was what was offered to both of these parents. It is not a matter of money
or finances at all. It is quite unfortunate that the parents’ house burnt in
September 2018. But it is duly noted that mother did not stop paying for
methamphetamine and the father did not stop using drugs either. The
parents failed drug tests or would not give a urine sample for a drug test.
The father admitted on the stand today that he has not fully addressed his
substance abuse issues. The problem with these children is that they have
been severely neglected due to drug use and domestic violence in the home
of the parents. When the parents were first given the opportunity to have
input on the permanency plan when the children were removed, the parents
did not show up to do so. The mother and father tested positive for
suboxone when the children were first removed. FSW Emely Ford tried to
visit the home of the parents on several occasions after the children were
removed. The child, Johnathan, came into state’s custody due to a
domestic assault charge on his own mother. There was also domestic abuse
going on in the home with the parents.
The parents were required to complete an alcohol and drug
assessment and follow all recommendations; complete a mental health
assessment and follow all recommendations; obtain stable housing,
transportation, and income; comply with random drug tests; participate in
visits; and pay child support. The parents have not completed the
recommendations from their alcohol and drug assessments; they have not
completed a mental health assessment; they have either failed drug tests or
refused to give a sample for the drug tests; the parents do not have stable
housing, income, or transportation; they have not paid child support.
FSW Emely Ford testified that the only poverty issue on this case
was housing and transportation. The court agrees with that. The Court
focuses on the main requirements which led to the removal which was
substance abuse. Both parents completed an alcohol and drug assessment
which had subsequent recommendations for treatment. The parents already
had an established relationship with Ridgeview. The father was
recommended to complete the stop program through Ridgeview and he
didn’t complete it. The mother was recommended to complete intensive
outpatient treatment (“IOP”) and did not complete it. The mother’s current
whereabouts are currently unknown. As far as the mental health
assessment, neither of the parents ever completed a mental health
assessment which was available to be completed at Ridgeview free of
charge. In reference to income, the father is not poor. He earns $10.00 per
hour and keeps it all to himself and does not pay child support. The father
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testified to that and states that it is hard to do it all on his own. The father
has not paid child support and is not on disability. The parents [had]
consistent visits until April 2019 when visits stopped. The Court is of the
opinion that the behaviors of the children have to do with the neglect by
their parents. The testimony is that the children have been in multiple
placements because of behaviors because they have learned their behaviors
from the parents. The children fight for attention of their parents because
they are severely neglected.
As to substance abuse and drug tests, the following are the results of
drug screens given to the parents. On June 13, 2018 – mother refuses a
drug screen and does not give one. The father was negative but the
temperature was too low which means that he falsified the drug test. A
person cannot pee in a cup and it be cold. On June 21, 2018, both parents
were negative. On August 13, 2018, the father would not submit to a drug
test. The mother tested positive for suboxone and methamphetamine. On
August 30, 2018, the father was negative. The mother would not give a
sample. On September 18, 2018, the father was negative on drug test. The
mother tested positive for methamphetamine and amphetamine. On
September 25, 2018, the father is negative. The mother is positive for
methamphetamine. [In] October 2018, hair follicle was requested of the
parents and neither showed up to complete the hair follicle test. On
November 27, 2018, the mother and father refused to give a sample. On
March 29, 2019, the mother was negative. On April 2019, the father
refused a drug test. The father refused multiple drug tests which are failed
drug tests according to the court.
The parents were invited to the CFTMs and never showed up for the
meetings. The parents are not drug free and have not shown any ability to
overcome substance abuse issues. The more stability these children have is
in their best interest. Testimony that the mother and father have been
arrested on multiple charges since the children came into custody. The
mother was arrested on charges of possession of drug paraphernalia and
failure to appear. The parents contacted the Department from various
different phone numbers which shows the Court that they are not in a stable
place to care for the children. The father admitted on the stand that he has
gone to jail many times for domestic violence with the mother, Jodi.
Neither parent has made sufficient progress on the permanency plan for the
children to be safely returned to their custody.
***
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BEST INTEREST
Under Tenn. Code Ann. § 36-1-113(i)(1), the Court is required to
find that termination of parental rights is in the child’s best interest. In this
case, the Court finds that there is clear and convincing evidence that
termination of [Mother’s] and [Father’s] parental rights is in the best
interest of the children in that despite reasonable efforts by the Department
to assist the parents, the parents have failed to make adjustments to their
conduct, circumstances, and lifestyles that would make it safe for the
children to return home; the parents have a codependent relationship with
their children and it is not very meaningful; a change of caretakers at this
time would be detrimental and harmful to the children; there is domestic
violence and substance abuse in the parents’ home and the parents have
exposed the children to both; the continued substance abuse by the parents
makes them both consistently unable to care for the children in a safe and
stable manner; and the parents have not paid child support for the children.
Mother timely appealed to this Court.2
Discussion
Although not stated exactly as such, Mother raises the following issue for our
review: Whether the Juvenile Court erred by determining that DCS had proven by clear
and convincing evidence that termination of Mother’s parental rights was in the
Children’s best interest. With regard to the termination of parental rights, our Supreme
Court has instructed:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state constitutions.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,
2
Father also filed a notice of appeal, but his appeal was dismissed after he failed to file an appellate brief
or respond to this Court’s order requiring Father to show cause why his appeal should not be dismissed.
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.”
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855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although
fundamental and constitutionally protected, are not absolute. In re Angela
E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
as parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In
re Angela E., 303 S.W.3d at 250. “When the State initiates a parental rights
termination proceeding, it seeks not merely to infringe that fundamental
liberty interest, but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388.
[“]Few consequences of judicial action are so grave as the severance of
natural family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J.,
519 U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The parental
rights at stake are [“]far more precious than any property right.” Santosky,
455 U.S. at 758-59 102 S. Ct. 1388. Termination of parental rights has the
legal effect of reducing the parent to the role of a complete stranger and of
[“]severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455
U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating
parental rights is [“]final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
[“]fundamentally fair procedures” in termination proceedings. Santosky,
455 U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640
(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).
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Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1113[sic](c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds4 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
S.W.3d at 254. Although several factors relevant to the best interests
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. § 36-1113[sic](k). A trial court
must “enter an order that makes specific findings of fact and conclusions of
4
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
5
Tenn. Code Ann. § 36-1-113(i).
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law within thirty (30) days of the conclusion of the hearing.” Id. This
portion of the statute requires a trial court to make “findings of fact and
conclusions of law as to whether clear and convincing evidence establishes
the existence of each of the grounds asserted for terminating [parental]
rights.” In re Angela E., 303 S.W.3d at 255. “Should the trial court
conclude that clear and convincing evidence of ground(s) for termination
does exist, then the trial court must also make a written finding whether
clear and convincing evidence establishes that termination of [parental]
rights is in the [child’s] best interests.” Id. If the trial court’s best interests
analysis “is based on additional factual findings besides the ones made in
conjunction with the grounds for termination, the trial court must also
include these findings in the written order.” Id. Appellate courts “may not
conduct de novo review of the termination decision in the absence of such
findings.” Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 &
n.15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
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).
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Although Mother does not raise an issue for review concerning the statutory
ground utilized for termination of her parental rights, we nonetheless will review the
Juvenile Court’s findings concerning statutory grounds for termination of parental rights
as directed by our Supreme Court in In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn.
2016). The Juvenile Court found only one statutory ground for termination of Mother’s
parental rights, substantial noncompliance with the reasonable requirements of the
permanency plans. As relevant, Tennessee Code Annotated § 36-1-113(g)(2) (Supp.
2019) provides as a statutory ground for termination of parental rights as follows:
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[.]
The Juvenile Court found that, pursuant to the court-approved permanency plans,
Mother was required to “complete an alcohol and drug assessment and follow all
recommendations; complete a mental health assessment and follow all recommendations;
obtain stable housing, transportation, and income; comply with random drug tests;
participate in visits; and pay child support.” The Juvenile Court found that the only
requirements on the permanency plan that were affected by poverty were obtaining stable
housing and transportation. The Juvenile Court, therefore, focused on the remaining
requirements that related to Mother’s substance abuse.
As required by the permanency plans, Mother had consistently visited with the
Children. Mother was also required by the permanency plans to complete a mental health
assessment. The Juvenile Court found that Mother already had established a relationship
with Ridgeview and that she could have had a free assessment. Mother, however, did not
complete the mental health assessment.
Mother complied with the requirement that she complete an alcohol and drug
assessment. The alcohol and drug assessment recommended that Mother complete
intensive outpatient drug treatment. Although Mother attended a detox program, she
failed to complete the recommended intensive outpatient treatment.
Concerning drug screen results throughout the case, the Juvenile Court found that
Mother refused to take a drug screen on June 13, 2018. Mother subsequently passed a
drug screen on June 21, 2018. On August 13, 2018, Mother tested positive for
methamphetamine and Suboxone. Mother later refused to provide a drug screen on
August 30, 2018. Mother did comply with a drug screen on September 18, 2018, and
tested positive for methamphetamine and amphetamines. On September 25, 2018,
Mother tested positive for methamphetamine. Mother was requested to complete a hair
follicle drug screen in October 2018 but failed to comply. Mother subsequently refused
to comply with a drug screen request in November 2018. Mother later passed a drug
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screen in March 2019. The permanency plans required Mother to comply with and pass
random drug screens. Mother refused to comply with drug screen requests four times
while the Children were in DCS custody. Although Mother complied with drug screens
on several occasions, she failed each drug screen except for two. Mother clearly had not
addressed her substance abuse issues. The evidence presented does not preponderate
against the findings of fact made by the Juvenile Court concerning this statutory ground.
We find and hold, as did the Juvenile Court, that the ground of substantial noncompliance
with the permanency plans was proven by clear and convincing evidence.
Finally, having determined that a statutory ground exists for the termination of
Mother’s parental rights, we next address the best interest analysis. Mother has raised the
best interest analysis as an issue on appeal and argues that the Juvenile Court erred by
determining that it was in the Children’s best interest for her parental rights to be
terminated. Tennessee Code Annotated § 36-1-113(i) provides a set of non-exclusive
factors courts are to consider 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;
(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
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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) (Supp. 2019).
With regard to making a determination concerning a child’s best interest, our
Supreme Court has instructed:
When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
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resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon
the circumstances of a particular child and a particular parent, the
consideration of one factor may very well dictate the outcome of the
analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
S.W.3d at 194). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
more weight—even outcome determinative weight—to a particular
statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
As acknowledged by Mother in her appellate brief, the Juvenile Court considered
the factors in Tennessee Code Annotated § 36-1-113(i). Mother argues, however, that the
Juvenile Court erred by determining that these factors weighed in favor of terminating
her parental rights.
Concerning factors (1) and (2), the Juvenile Court found that DCS had provided
reasonable efforts to assist Mother in remedying the reasons the Children were in foster
care but that Mother had failed to make a lasting adjustment to her conduct,
circumstances, or lifestyle such that it would be safe for the Children to return to her
home. The Juvenile Court found that DCS’s efforts consisted of referring Mother for her
alcohol and drug assessment, referring her to services where Mother could complete the
recommendations from that assessment, referring Mother to a mental health assessment,
providing Mother with random drug screens, organizing child and family team meetings,
providing visitation for Mother and the Children, assisting Mother in finding suitable
housing, providing ongoing case management, providing medical and dental care for the
Children, providing Mother with ongoing advice and recommendations, providing daily
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care and support for the Children, and developing a permanency plan to help reunite
Mother with the Children. Despite DCS’s efforts, Mother had not remedied her
substances abuse issues, had failed multiple drug tests while the Children were in foster
care, and had pending criminal charges and an active warrant for her arrest on the day of
trial.
Concerning factor (3), the Juvenile Court found in its judgment that Mother had
visited the Children consistently until April 2019. Mother had not visited the Children
after that time because Ms. Ford was unable to contact Mother. Although Mother had
maintained visitation with the Children for most of the time they were in foster care, the
Juvenile Court found, pursuant to factor (4), that Mother had a co-dependent relationship
with the Children and that the relationship was not meaningful.
As relevant to factor (5), the Juvenile Court’s judgment stated that changing the
Children’s caretakers at this point would be detrimental and harmful to the Children but
does not further explain this finding. In its oral ruling, the Juvenile Court mentioned
Mother’s ongoing drug use and her mental health condition. We note a lack of evidence
in the record concerning Mother’s mental health diagnoses but an abundance of evidence
concerning Mother’s drug use. Also in its oral ruling, the Juvenile Court acknowledged
that the Children’s placements may not be pre-adoptive but stated that it was crucial to
the Children’s emotional, psychological, and medical condition for the Children to
remain in foster care with stable foster families rather than return to Mother as the
caretaker.
Additionally, the Juvenile Court found that as to factor (7), Mother had both
substance abuse and domestic violence in the home and that she had exposed the
Children to both. The Juvenile Court further found that Mother’s continued substance
abuse made her consistently unable to care for the Children in a safe and stable manner.
Finally, as relevant to factor (9), the Juvenile Court found that Mother had not paid child
support for the Children. The evidence presented does not preponderate against the
Juvenile Court’s findings regarding best interest.
On appeal, Mother argues that the Juvenile Court erred by failing to consider the
Children’s placement in separate foster homes. Mother argues that there is a rebuttable
presumption against splitting up siblings. See Ray v. Ray, 83 S.W.3d 726, 738 (Tenn. Ct.
App. 2001). This Court has explained that “[t]he preference for keeping siblings together
‘is simply a factor for the court to consider in determining the best interest of the child . .
. . It is not a controlling factor. Courts have previously separated siblings if separation
was in the best interest of the child before the court.” Grigsby v. Alvis-Crawford, No.
W2016-00393-COA-R3-JV, 2017 WL 417221, at *4 (Tenn. Ct. App. Jan. 31, 2017)
(quoting In re S.B., No. M1999-00140-COA-R3-CV, 2000 WL 575934, at *5 (Tenn. Ct.
App. May 12, 2000)).
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In this case, the Children were placed initially into the custody of family members.
Due to the Children’s behavioral issues, the Children subsequently were placed into DCS
custody. At the time of trial, the Children were in three separate homes. The Juvenile
Court heard evidence concerning the Children’s separate placements and also
acknowledged in its judgment the multiple placements the Children have had while in
foster care due to their behavioral issues. The Juvenile Court found that those behaviors
were caused by the neglect they received from the parents and having to “fight for the
attention of their parents.” Although the Juvenile Court does not specifically address the
Children’s placement in separate foster homes at the time of trial, the fact that the
Children are in separate homes does not outweigh the other statutory factors favoring the
termination of Mother’s parental rights.
We acknowledge that Johnathan does not wish to be adopted. We note that
Johnathan will be eighteen years old in September 2020. Ms. Ford testified during trial
that the foster parents of the three children, Jaylynn, Jayla, and Jayden, were considering
adopting those children and “possibly Johnna.” With Johnathan turning eighteen and not
wishing to be adopted, the four younger siblings still have a chance at adoption and
stability. By the time of the termination trial, Mother had made very little progress to
remedy her substance abuse issues which was the main reason the Children were
removed from her custody. The Children were doing well in their current placements and
returning the Children to Mother’s custody with her continuing substance abuse would
not be in their best interest. We find and hold, as did the Juvenile Court, that DCS had
proven by clear and convincing evidence that termination of Mother’s parental rights was
in the Children’s best interest. We, therefore, affirm the judgment of the Juvenile Court.
Conclusion
The judgment of the Juvenile Court terminating Mother’s parental rights to the
Children is affirmed. This cause is remanded to the Juvenile Court for collection of the
costs assessed below. The costs on appeal are assessed against the appellant, Jodie T.,
and her surety, if any.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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