In Re Kash F. ( 2020 )

09/04/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 3, 2020
IN RE KASH F.1
Appeal from the Juvenile Court for Grainger County
No. 2018-JV-66 Steven Lane Wolfenbarger, Judge
No. E2019-02123-COA-R3-PT
This action involves the termination of a mother’s parental rights to her minor child.
Following a bench trial, the trial court found that clear and convincing evidence existed
to establish the following statutory grounds of termination: (1) wanton disregard for the
child’s welfare; (2) substantial noncompliance with the permanency plan; (3) severe child
abuse; and (4) failure to manifest an ability and willingness to parent. The court also
found that termination was in the best interest of the child. We affirm the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and W. NEAL MCBRAYER, J. joined.
Jordan Long, Knoxville, Tennessee, for the appellant, Kendall F.
Herbert H. Slatery, III, Attorney General & Reporter, and Lexie A. Ward, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.
OPINION
I. BACKGROUND
Kash F. (“the Child”) was born to Kendall F. (“Mother”) in July 2018.2 The
Tennessee Department of Children’s Services removed the Child within three days of the
1
This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
Child’s birth due to an allegation of severe child abuse based upon Mother’s drug use
while pregnant. Mother and the Child tested negative for all illegal substances at the time
of birth; however, the Child’s umbilical cord tested positive for Benzodiazepines and
THC. The Child was placed into foster care and was later adjudicated as dependent and
neglected and a victim of severe child abuse through drug exposure. Mother did not
appeal the finding of severe child abuse.
DCS developed two permanency plans in this case, one dated August 16, 2018,
and one dated February 8, 2019. The plans each contained the following requirements:
(1) complete an alcohol and drug assessment and comply with recommendations; (2)
complete a mental health assessment and follow recommendations; (3) complete a
parenting assessment and follow recommendations; (4) complete domestic violence
classes; (5) obtain and maintain suitable housing, income, and transportation; (6) remedy
legal issues and comply with probation; (7) pay child support; and (8) submit to and pass
random drug screens. Each plan was signed by Mother and ratified by the trial court. A
third plan was later developed on August 9, 2019, which added two responsibilities,
namely (1) create a relapse prevention plan and (2) comply with DCS home visits.
Mother did not complete the majority of the requirements and was incarcerated
from November 28, 2018, through April 25, 2019, based upon a probation violation for,
inter alia, (1) failing a drug screen; (2) not remitting payment as required; (3) failure to
maintain employment; and (4) admitted drug use. Mother’s probation violation stemmed
from the following criminal convictions in August 2017: possession of drug
paraphernalia, possession of a Schedule IV controlled substance; and driving on a
revoked or suspended license. In April 2018, Mother was convicted of a probation
violation and theft under $1,000, resulting in her serving three weeks in jail while
pregnant with the Child.
DCS filed a petition to terminate Mother’s parental rights on June 27, 2019, based
upon the statutory grounds of (1) wanton disregard for the child’s welfare; (2) substantial
noncompliance with the permanency plan; (3) severe child abuse; and (4) failure to
manifest an ability and willingness to parent. Mother was arrested approximately 13 days
before the scheduled hearing and spent one night in jail for theft of $15 at her place of
employment.
The case proceeded to a hearing on October 31, 2019, at which several witnesses
testified. Three DCS caseworkers testified concerning Mother’s failure to complete the
requirements of the permanency plan and to assume custody of the Child. Mother’s
criminal history and drug use, specifically while pregnant, were also introduced for the
2
The putative father signed a waiver of interest and is not a party to this appeal.
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court’s consideration. In January 2012, Mother gave birth to a child who tested positive
for marijuana, methadone, and benzodiazepines. Mother also tested positive for
amphetamines, benzodiazepines, and THC while pregnant with another child who died
during childbirth in 2016. Likewise, Mother tested positive for amphetamines,
benzodiazepines, and suboxone while pregnant with the Child in April 2018. Mother
admitted to approximately ten years of drug abuse. She claimed that she has since
addressed her drug addiction and was now ready to care for the Child.
Ashley Peters, the Child’s first DCS caseworker, testified that she began
supervising visitation after Mother cursed at Foster Mother and “caused a lot of havoc” in
the home during supervised visitation. She submitted a request for in-home services for
Mother to assist her in securing services and completing the requirements of her
permanency plan. She further advised Mother concerning DCS’s ability to provide
transportation to and from appointments as needed. She even provided Mother with a
planner to track her appointments and moved visitation to Mother’s residence to ensure
her attendance. She recalled one visitation in which Mother’s friend, Kevin, was in
attendance. She stated that Mother and Kevin were falling asleep during the visitation,
prompting her to initiate a drug screen. The drug screen was negative, despite Mother’s
inability to converse or provide adequate supervision for the Child.
Ms. Peters testified that some services were discontinued when Mother was
incarcerated in November 2018. She stated that throughout her involvement in the case,
Mother failed to complete the significant requirements of the permanency plan, namely
resolve legal issues, complete assessments, and pass drug screens. She admitted that
Mother passed the drug screens provided by DCS but failed a drug screen taken as part of
her probation in November 2018, leading to her incarceration.
Ms. Peters testified that the Child was doing well in his adoptive placement, where
he was provided with plenty of clothing, food, and other necessaries. She observed a
bond between him and his foster family.
Samara Dixon testified that she served as the Child’s DCS caseworker from May
through August 2019. She recalled that Mother tested positive for THC on August 9,
2019.3 She acknowledged that Mother had completed the parenting assessment but that
her in-home family support services were ended as result of Mother’s failure to
participate. She confirmed that she had difficulty maintaining contact with Mother but
stated that Mother’s visitations went fairly well.
3
Mother explained that she consumed gummy bears with CBD oil. She claimed that she was unaware
that the treats contained THC and would result in a positive screen.
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Maria Weir testified that she was assigned the Child’s case in August 2019 and
has served in that capacity since that time. She confirmed that she also had difficulty
maintaining contact with Mother but agreed that the visit she supervised went well. She
asserted that she has attempted to facilitate services on Mother’s behalf in her limited
tenure as the Child’s caseworker.
Mother, who appeared late at the hearing, confirmed her drug abuse history but
claimed that she only used one time while pregnant with the Child. She testified that she
has been diagnosed with post-traumatic stress disorder and anxiety but denied the need
for mental health treatment. She stated that she is currently living with a friend but that
there was room for the Child should she regain custody. She claimed that she has a new
job, starting in the morning. She recalled that she passed the majority of the drug screens
provided by DCS prior to her incarceration and that she attended a drug rehabilitation
program following her incarceration. She was released from the program early as a result
of her progress. She recalled that she attended all but one parenting class and that she
was also working to complete her domestic violence classes prior to her incarceration.
She provided that she attends visitation regularly and was willing to complete any
recommendations from her required assessments. She further testified concerning her
love and concern for the Child and her desire to care for him as his mother. She
conceded that she has not regularly remitted child support and that she was not currently
receiving mental health treatment as recommended.
Foster Mother confirmed that the Child is doing well in her home. She expressed
her love and concern for the Child and her intent to adopt should he become available.
She recalled that she supervised visitation at one time but that she later requested
assistance due to Mother’s behavior. She has since resumed her supervision of visitation
in an attempt to repair the relationship. She agreed that Mother’s visitation with the
Child has gone “pretty well” since that time.
Following the hearing, the trial court granted the termination petition in its entirety
on the grounds alleged by DCS. The court also found that termination was in the best
interest of the Child. This timely appeal followed.
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II. ISSUES
The issues necessary to our resolution of this appeal are as follows:
A. Whether clear and convincing evidence supports the court’s
termination based upon a finding of abandonment related to Mother’s
conduct prior to incarceration pursuant to Tennessee Code Annotated
section 36-1-102(1)(A)(iv).
B. Whether clear and convincing evidence supports the court’s
termination based upon a finding of substantial noncompliance with the
permanency plan pursuant to Tennessee Code Annotated section 36-1-
113(g)(2).
C. Whether clear and convincing evidence supports the court’s
termination based upon a finding of severe child abuse pursuant to
Tennessee Code Annotated section 36-1-113(g)(4).
D. Whether clear and convincing evidence supports the court’s
termination based upon a finding of failure to manifest an ability and
willingness to parent pursuant to Tennessee Code Annotated section 36-1-
113(g)(14).
E. Whether clear and convincing evidence supports the court’s finding
that termination was in the best interest of the Child pursuant to Tennessee
Code Annotated section 36-1-113(i).
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).
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While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination.
In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best
interest[] of the child.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.
In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:
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). Under
Rule 13(d), appellate courts review factual findings de novo on the record
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and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. 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.
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. 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 Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).
IV. DISCUSSION
A.
Parental rights may be terminated if the parent has been incarcerated during all or
part of the four months immediately preceding the filing of the termination petition and
has engaged in conduct prior to incarceration that exhibits a wanton disregard for the
child’s welfare. Tenn. Code Ann. § 36-1-102(1)(A)(iv). To prove this ground, DCS
must establish that (1) Mother was incarcerated at the time the termination petition was
filed or within the preceding four-month period and that (2) she engaged in conduct prior
to incarceration that exhibits a wanton disregard for the welfare of the child. Tenn. Code
Ann. § 36-1-102(1)(A)(iv); In re Kason C., No. M2013-02624-COA-R3-PT, 2014 WL
2768003, *5 (Tenn. Ct. App. June 17, 2014).
Here, Mother was incarcerated from November 2018 through April 2019. The
termination petition was filed on June 27, 2019, thereby establishing that Mother was
incarcerated during part of the four months preceding the filing of the petition. This court
has held that such conduct may occur at any time prior to incarceration and is not limited
to acts occurring during the four-month period immediately preceding the incarceration.
State of Tenn., Dep’t. of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App.
2009). We have held on numerous occasions that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
867-68. The record overwhelmingly establishes Mother’s wanton disregard for the
Child’s welfare. Mother admitted to drug use while pregnant with the Child. Further,
she engaged in criminal behavior while the Child was in DCS custody, resulting in the
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violation of her probation and hindering her ability to complete the requirements of her
permanency plan. With these considerations in mind, we conclude that there was clear
and convincing evidence to establish that Mother engaged in behavior prior to her
incarceration that exhibited a wanton disregard for the Child’s welfare.
B.
Tennessee law requires the development of a plan of care for each foster child and
further requires that the plan include parental responsibilities that are reasonably related
to the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of
parental rights exists when a petitioner proves by clear and convincing evidence that
“[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). To
establish noncompliance, the trial court must initially find “that the requirements of the
permanency plans are reasonable and related to remedying the conditions that caused the
child to be removed from the parent’s custody in the first place.” In re M.J.B., 140
S.W.3d at 656; see In re Valentine, 79 S.W.3d at 547. When the trial court does not
make such findings, the appellate court should review the issue de novo. In re Valentine,
79 S.W.3d at 547. Second, the court must find that the parent’s noncompliance is
substantial, In re M.J.B., 140 S.W.3d at 656, meaning that the parent must be in
“noncompliance with requirements in a permanency plan that are reasonable and related
to remedying the conditions that warranted removing the child from the parent’s
custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12
(Tenn. Ct. App. June 3, 2003). To assess a parent’s substantial noncompliance with a
permanency plan, the court must weigh “both the degree of noncompliance and the
weight assigned to that particular requirement.” Id. Conversely, “[t]erms which are not
reasonable and related are irrelevant, and substantial noncompliance with such terms is
irrelevant.” In re Valentine, 79 S.W.3d at 548-49. “Substantial” is defined as “of real
worth and importance,” Black’s Law Dictionary (11th ed. 2019), and “the real worth and
importance of noncompliance should be measured by both the degree of noncompliance
and the weight assigned to that requirement.” In re Valentine, 79 S.W.3d at 548.
Notably, this ground for termination does not require that DCS “expend
reasonable efforts to assist a parent in complying with the permanency plan
requirements.” In re Skylar P., No. E2016-02023-COA-R3-PT, 2017 WL 2684608, at *7
(Tenn. Ct. App. June 21, 2017); see also In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn.
2015) (“[I]n a termination proceeding, the extent of [the Department’s] efforts to reunify
the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts
is not a precondition to termination of the parental rights of the respondent parent.”).
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Here, Mother was tasked with completing the following requirements: (1)
complete an alcohol and drug assessment and comply with recommendations; (2)
complete a mental health assessment and follow recommendations; (3) complete a
parenting assessment and follow recommendations; (4) complete domestic violence
classes; (5) obtain and maintain suitable housing, income, and transportation; (6) remedy
legal issues and comply with probation; (7) pay child support; (8) submit to and pass
random drug screens; (9) create a relapse prevention plan; and (10) comply with DCS
home visits. While Mother made some progress on her permanency plan, she failed to
remedy her legal issues and incurred new charges, lessening her ability to complete the
requirements of the plan. She also failed to remit child support, pass random drug
screens, and provide proof of income. She was likewise required to complete a new drug
assessment following her incarceration. She has yet to complete the assessment and was
arrested for theft days before the hearing. With these considerations in mind, we
conclude that there was clear and convincing evidence to establish Mother’s substantial
noncompliance with the requirements of the permanency plan.
C.
The trial court may terminate parental rights based upon a finding of severe child
abuse against any child either as found “under any prior order of a court” or as “found by
the court hearing the petition to terminate parental rights.” Tenn. Code Ann. § 36-1-
113(g)(4). Here, the trial court found clear and convincing evidence in support of this
statutory ground of termination based upon a prior court order adjudicating the Child as a
victim of severe child abuse. The finding of severe abuse is “a final decision, which the
[parent] is barred from challenging” when the parent had a full and fair opportunity to
litigate the issue of severe abuse in the prior suit and did not appeal. State Dep’t of
Human Servs. v. Tate, No. 01-A-01-9409-CV-00444, 1995 WL 138858, at *5 (Tenn. Ct.
App. Mar. 31, 1995). Mother did not appeal the court’s finding of severe child abuse.
Accordingly, the order became a final order and may be relied upon pursuant to
Tennessee Code Annotated section 36-1-113(g)(4). With these considerations in mind,
we uphold the court’s finding of severe child abuse.
D.
The trial court found that DCS had proven by clear and convincing evidence that
Mother’s parental rights should be terminated pursuant to Tennessee Code Annotated
section 36-1-113(g)(14), which provides as follows:
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A legal parent or guardian 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 requires the petitioner to prove two
elements by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14).
First, a petitioner 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.”
Tenn. Code Ann. § 36-1-113(g)(14). Second, a petitioner must prove that placing the
children in the parent’s “legal and physical custody would pose a risk of substantial harm
to the physical or psychological welfare of the child.” Id.
There is a split in authority regarding the proof required to establish the first
element, specifically, whether parental rights can be terminated under section 36-1-
113(g)(14) if a parent has manifested a willingness, but not an ability. Compare In re
Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App.
May 31, 2018), with In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280,
at *12-15 (Tenn. Ct. App. June 20, 2018). In cases like this one where the parent has
manifested neither a willingness nor an ability to assume custody or responsibility, we
have upheld termination of parental rights on this ground. See, e.g., In re J’Khari F., No.
M2018-00708-COA-R3-PT, 2019 WL 411538, at *15 (Tenn. Ct. App. Jan. 31, 2019)
(noting both In re Ayden S. and In re Amynn K. but ultimately concluding that the
petitioner presented sufficient evidence that “Mother was not able or willing to assume
physical or legal custody of or financial responsibility for the Child”); In re Colton B.,
No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *9-10 (Tenn. Ct. App. Oct. 29,
2018) perm. app. denied (Tenn. Jan. 22, 2019) (noting the split in authority but holding
that it was unnecessary to adopt one approach because the parent had manifested neither
an ability nor a willingness to assume custody or financial responsibility).
As to the second element, whether placing the child in the parent’s custody “would
pose a risk of substantial harm to the physical or psychological welfare of the child,” we
have explained:
The courts have not undertaken to define the circumstances that pose a risk
of substantial harm to a child. These circumstances are not amenable to
precise definition because of the variability of human conduct. However,
the use of the modifier “substantial” indicates two things. First, it connotes
a real hazard or danger that is not minor, trivial, or insignificant. Second, it
indicates that the harm must be more than a theoretical possibility. While
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the harm need not be inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more likely than not.
In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct.
App. Oct. 11, 2018) (quoting Ray, 83 S.W.3d at 732).
While Mother expressed a willingness to assume responsibility for the Child at the
hearing, her failure to act prior to the filing of the termination petition did not support her
claims or indicate any evidence of an ability to assume responsibility. Indeed, Mother
was incarcerated as a result of a probation violation while the Child was in DCS custody
and was arrested once again days before the termination hearing. The record further
supports a finding that placing him with her would pose a risk of substantial harm to his
physical or psychological welfare given her failure to adequately address her drug abuse
and his current placement in an adoptive home, the only home he has ever known. We
affirm the court’s finding on this issue.
D.
Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, we must consider whether termination was in the
best interest of the Child. In making this determination, we are guided by the following
non-exhaustive list of factors:
(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child . . . 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;4
4
In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a termination proceeding, the extent of DCS’s efforts to
reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a
precondition to termination of the parental rights of the respondent parent.”).
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(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or
adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the home,
or whether there is such use of alcohol or controlled substances as may
render the parent or guardian consistently unable to care for the child in
a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child;
or
(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department
pursuant to [section] 36-5-101.
Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).
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We acknowledge Mother’s current efforts to rehabilitate herself and her desire to
maintain a relationship with the Child. However, the fact remains that Mother violated
her probation and was incarcerated while the Child was in DCS custody. She has since
been arrested yet again in the days before the termination hearing. Tenn. Code Ann. §
36-1-113(i)(1), (2). Meanwhile, the Child has bonded with those in his foster home and
is thriving. The Child should be allowed to achieve permanency and stability in his
current home. A change of caretakers at this point in the Child’s life would be
detrimental to his emotional condition when his adoptive home is the only home he has
ever known. Tenn. Code Ann. § 36-1-113(i)(5). Questions remain as to her ability to
provide a safe and stable home for the Child as evidenced by her criminal activity and
failure to seek mental health treatment. Tenn. Code Ann. § 36-1-113(i)(7), (8). She has
also failed to remit child support as required. Tenn. Code Ann. § 36-1-113(i)(9). With
all of the above considerations in mind, we conclude that there was clear and convincing
evidence to establish that termination of Mother’s parental rights was in the best interest
of the Child. We affirm the trial court.
V. CONCLUSION
The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Kendall
F.
_________________________________
JOHN W. McCLARTY, JUDGE
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