In Re Jaliyah S. ( 2023 )

12/20/2023
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 1, 2023
IN RE JALIYAH S. ET AL.
Appeal from the Circuit Court for Davidson County
No. 21A-100 Laurence M. McMillan, Jr., Chancellor
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No. M2023-00554-COA-R3-PT
___________________________________
This is a termination of parental rights case. Appellant/Mother appeals the termination of
her parental rights to the three minor children on the ground of severe child abuse and on
the trial court’s finding that termination of her rights is in the children’s best interests.
Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.
Nick Perenich, Nashville, Tennessee, for the appellant, Tamika S.1
Jonathan Skrmetti, Attorney General and Reporter, and Clifton Wade Barnett, Assistant
Attorney General, for the appellees, Tennessee Department of Children’s Services, and
Earlene S.2
OPINION
I. Background
Appellant Tamika S. (“Mother”) is the biological mother of Jaliyah S. (d.o.b. May
2015), and twins, Zaylen S., and Zaliyah S. (d.o.b. December 2016) (the “Twins,” and
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
2
As discussed infra, Earlene S. is the children’s grandmother. She initially petitioned for
termination of Appellant’s parental rights, and the Tennessee Department of Children’s Services joined her
petition. She filed notice in this Court that she was joining in the Department’s brief.
together with Jaliyah S., the “Children”).3 Jaliyah was born prematurely, with her fraternal
twin Jordan, who died at 20 months old.4 In September 2015, December 2015, and
February 2016, medical personnel at Vanderbilt University Children’s Hospital
(“Vanderbilt”) diagnosed Jaliyah with “failure to thrive” based on the fact that, although
she was approximately 9 months old, she was the size of a newborn. According to the
record, when Jaliyah was in the care of hospital staff or Earlene S. (“Grandmother”), she
gained appropriate weight. Furthermore, Mother demonstrated erratic behaviors regarding
Jaliyah’s care. Specifically, Mother failed to bring Jaliyah to several medical
appointments, refused to have the child immunized, and stopped giving her prescribed
acid-reflux medication. All of this culminated in the Department of Children’s Services
(“DCS,” and together with Grandmother, “Appellees”) filing a dependency-and-neglect
petition regarding Jaliyah. By order of August 31, 2016, the Juvenile Court of Davidson
County adjudicated Jaliyah dependent and neglected; the juvenile court affirmed its prior
ruling after Mother requested a rehearing on the dispositional order. Mother then appealed
to the Circuit Court for Davidson County (“trial court”), and the trial court ordered that
Jaliyah would remain in Grandmother’s care. Mother did not appeal the trial court’s order,
and Jaliyah has remained in Grandmother’s care throughout these proceedings.
At the time of Jaliyah’s disposition, Mother was pregnant with the Twins, who were
born in December 2016. On January 3, 2017, DCS received a referral regarding the Twins.
A Child Protective Services investigator attempted to visit Mother’s home to ensure the
Twins’ wellbeing, but Mother resisted that visit and a subsequent visit when DCS returned
with officers and a court order of removal to DCS custody. The juvenile court scheduled a
preliminary hearing regarding the Twins on January 6, 2017.
On January 6, Mother appeared before the juvenile court with Mr. Zuri McGee
Stines but without the Twins.5 Mother denied that the Twins were hers and stated that she
had a surrogacy relationship with Mr. Stines. Mother also stated that Mr. Stines was the
Twins’ biological father and that the Twins resided with him. Mother’s statements were
false. Ultimately, Mother revealed the Twins’ location. When DCS first observed the
Twins, it was immediately apparent that they were malnourished and in need of immediate
care. Because the Twins were very thin, had skin hanging from their limbs, and had dark
circles under their eyes they were quickly admitted to Vanderbilt, where it was determined
that Zaylen had gained no weight since his birth and Zaliyah had gained only 100 grams.
After being admitted to Vanderbilt, the Twins’ health improved quickly.
3
Mother has given birth to seven children: Ziria, Zayden, Jordan, Jaliyah, Zaylen, Zaliyah, and
Yemaya. Both Zayden and Jordan have passed away. Mother’s parental rights to Ziria and Yemaya are not
the subject of these proceedings. However, Ziria and Yemaya will be mentioned as is relevant to provide a
complete picture of the family.
4
The specific cause of Jordan’s death was never determined.
5
Mr. Stines is a transgendered man.
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On January 13, 2017, the juvenile court ordered Mother to complete a psychological
evaluation. In February 2017, the court entered a permanency plan hearing order under
which Mother was to participate in a psychological intake/evaluation, participate in mental
health counseling as recommended, and attend grief counseling. Mother opposed signing
a release for her medical records relating to her therapy. In its January 2018 permanency
hearing order, the juvenile court found that, although DCS had made reasonable efforts to
assist Mother with her counseling, Mother was not in substantial compliance with the plan
because she had not completed a psychological evaluation.
The juvenile court and the trial court, on de novo review, adjudicated the Twins
dependent and neglected and the victims of severe child abuse perpetrated by Mother.
Mother appealed the trial court’s order as to the Twins. In In re Zaliyah S., No. M2019-
01241-COA-R3-JV, 2020 WL 3494471 (Tenn. Ct. App. June 26, 2020), this Court
affirmed the trial court’s judgment that the Twins were dependent and neglected due to
severe child abuse perpetrated by Mother. Id. at *9. The Twins remained in DCS custody,
and DCS placed them with Grandmother.
On October 24, 2017, criminal charges were brought against Mother. On December
14, 2018, a jury found Mother guilty of two counts of child neglect of a child under eight
years based on the Twins’ condition. See Tenn. Code Ann. § 39-15-401. Mother was
sentenced to twenty-days incarceration beginning on December 28, 2018. Following her
release, she was placed on supervised probation for two years. Mother completed her
probation and has not incurred further criminal charges. As part of her criminal court
proceedings, Mother was ordered to participate in a forensic evaluation for competency
purposes. The evaluation indicated that Mother had mild post-traumatic symptoms
stemming from her reported childhood abuse and a personality disorder. Mother’s
personality disorder consisted of her having a “tendency toward suspiciousness and a broad
difficulty with social interactions.” In effect, the disorder “would make her overly wary of
others and vulnerable to feeling slighted or taken advantage of,” which could have
implications in her interactions with healthcare providers. In particular, the evaluation cited
Mother’s distrust of Vanderbilt providers due to her feeling that she had “been wronged”
by them. The evaluation stated that “[i]t is within the realm of possibility that [Mother]
would disregard a healthcare provider’s advice on the mistaken belief that it was not in her
or her children’s best interest.” The evaluation found that none of Mother’s psychological
issues would “impair her enough to render her unable to appreciate the nature or
wrongfulness of her actions.” Throughout these proceedings, scheduling medical
procedures and obtaining prescriptions for the Children has been difficult due to Mother’s
lack of consent and Mother’s distrust of medical providers. When Jaliyah was prescribed
acid-reflux medication, Mother stopped administering the medication. Zaliyah also needed
surgery regarding her tongue-tie, but Mother would not consent. There was also a delay
regarding Zaliyah’s adenoid surgery. Mother has always opposed vaccinations. At trial,
she opined that vaccines are dangerous and untested, and she believes it is in the Children’s
best interest to not receive age-appropriate vaccinations because “they have been doing
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well without it.”
Concerning Mother’s other children, who are not the subject of the immediate
appeal, Ziria was born on January 5, 2013. During the dependency-and-neglect
proceedings involving Jaliyah, Mother filed a petition to change legal custody of Ziria to
Mother’s father’s wife, Constance M. Mother had unsupervised visits with Ziria until Ziria
was adjudicated dependent and neglected based on Mother’s severe abuse of the Twins.
Ziria no longer resides with Constance M. due to an incident where Ziria attempted to stab
Constance M. with a knife. Grandmother was granted custody of Ziria, which Mother
opposed. Ziria started rebelling against Grandmother, and the Children began to imitate
Ziria’s behaviors. Grandmother placed the Children in therapy to overcome those issues
before it was “too late.” At the time of the hearing in this case, Ziria was doing better in
her placement with Grandmother and was doing well in school. At the time of trial, Mother
had not seen Ziria for approximately two years, but recently resumed supervised visitation.
Yemaya was born in January 2019. Yemaya was removed from Mother’s custody
at birth and was placed with her father, Clifton C. by an immediate protection agreement.
Although Yemaya was subsequently declared to be dependent and neglected based on
Mother’s history with her other children, custody was not removed from Mother, and
Yemaya remains in the joint custody of Mother and Clifton C. Concerning Mother’s living
arrangements, at the time of trial, she resided in a two-bedroom apartment with Yemaya.
The apartment is not large enough for the Children, but Mother has talked with apartment
management about acquiring a larger space.
Around December 2019, DCS requested that Mother participate in a parenting
capacity assessment, which she did. The parenting assessment recommended that: (1) any
child in Mother’s custody needs to be under the care of a pediatrician and receive
recommended treatment and monitoring; (2) healthcare providers should be aware of
Mother’s history of child neglect and should be given access to all healthcare information
they deem necessary; (3) healthcare decision-making authority be placed in another adult
rather than Mother; and (4) Mother not be able to home school any children in her care.
Based on the assessment, the juvenile court implemented the assessment’s
recommendations regarding Mother’s custody of Yemaya and further ordered Mother to
continue counseling until she was discharged by a counselor.
Following a January 2021 permanency hearing order, the juvenile court found that
Mother needed to engage in recommended psychological therapy. Further, the court found
that Mother was not in substantial compliance with the permanency plan in that DCS
needed to receive documentation of Mother’s psychotherapy. Mother would not sign a
release so that DCS could acquire the information. At trial, Mother testified that she was
seeing a counselor; however, she provided no documentation regarding her compliance
with mental health services. Mother testified that she provided DCS with a release to obtain
such information. However, Mother actually signed her own release for information, not
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the one DCS requested she sign. As such, DCS has not seen any of Mother’s mental health
records.
Turning to Mother’s relationship with Grandmother, before the Children were
removed from Mother’s custody, she and Grandmother had a good relationship. However,
the relationship began to sour after Grandmother testified against Mother in juvenile court,
and Mother blamed Grandmother for the Children’s current placement. During the
dependency-and-neglect proceedings, Mother testified that she would rather have Jaliyah
live with strangers than with Grandmother. Mother has not spoken to or visited with
Grandmother for years. At trial, Mother testified that Grandmother was physically abusive
to Mother when she was a child. Mother claimed that DCS investigated Grandmother, but
Grandmother chased the DCS case worker away by cussing at her, and nothing occurred
afterwards. Mother testified that her actions during the dependency-and-neglect
proceedings, including her lies, were a “reaction” from her trauma. Grandmother denied
ever abusing Mother, and no credible witness corroborated Mother’s account. Furthermore,
DCS has no record of investigating Grandmother for potential abuse. Although Mother
testified that she “wanted to do whatever to repair” her relationship with Grandmother, the
evidence shows that Mother has made little attempt to reconcile with Grandmother. When
Grandmother supervised visitations, Mother went through Grandmother’s home and
opened cabinets to take pictures of medication, which caused Grandmother to stop visits.
Mother denied taking pictures of the Children’s medication. However, the trial court stated
that it “gave little weight” to Mother’s testimony regarding conflicts with the testimony of
another witness found to be credible, and the trial court gave “great weight” to
Grandmother’s testimony. Accordingly, Mother was found to not be credible on this point.
Now, Mother refuses to allow Grandmother to supervise visits with any of the
Children. Mother has informed Grandmother that if Grandmother were to get the Children,
Mother would “kidnap” them. Mother told Jaliyah that she was “kidnapped.” Mother also
told the Twins that they are going to live with her. When asked why she thought
Grandmother was unsuitable to supervise the Children, Mother could only complain of an
incident where she bought shoes for the Children that were never worn. However,
Grandmother explained that the shoes Mother bought were too small. Otherwise, Mother
could not think of any reason why Grandmother is not taking good care of the Children.
Grandmother, on the other hand, testified that she will work with Mother if Mother does
not fight her on parenting issues, such as making medical decisions. Grandmother does not
trust Mother’s judgment regarding medical decisions.
Jaliyah has been in DCS custody, and in Grandmother’s care, since she was eight
months old. Regarding Mother’s supervised visits with Jaliyah, Grandmother has full
discretion. Mother did not see Jaliyah from the summer of 2018 to March of 2019.
Grandmother then supervised visits between Mother and Jaliyah, but visits stopped after
Mother went through Grandmother’s cabinets to take pictures of the Children’s medication,
see supra. At the time of trial, Mother had not exercised visitation with Jaliyah for over a
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year. Mother testified that Grandmother prohibited her from visiting Jaliyah. However,
Grandmother testified that she would have “no problem” allowing Mother to visit Jaliyah
if she called and asked for visitation.
Currently, Mother has been afforded sixteen hours of visitation with the Twins each
month. However, Mother only visits the Twins two or three times a month due to her work
schedule. Mother has cancelled visits on multiple occasions such that Mother is required
to confirm the visit the night before the visit occurs. Mother still canceled several visits on
the day they were to occur.
On October 28, 2021, Grandmother petitioned to terminate Mother’s rights to
Jaliyah, Zaylen, and Zaliyah. On December 21, 2021, DCS filed a motion to join
Grandmother’s petition. On June 16, 2022, Mother filed her answer. The trial court heard
the petition on December 19, 2022. By order of March 15, 2023, the trial court terminated
Mother’s parental rights to the Children on the ground of severe child abuse and on its
finding that termination of Mother’s rights is in the Children’s best interest. Mother
appeals.
II. Issues
There are two dispositive issues: (1) Whether there is clear and convincing evidence
to support the ground of severe child abuse; and (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 Children’s best interests.
III. Standard of Review
It is well-settled that:
A parent’s right to the care and custody of [his or] her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clause of the federal and state constitutions. Troxel v.
Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption
of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk,
855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although
fundamental and constitutionally protected, are not absolute. In re Angela
E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
to protect minors....’ Tennessee law, thus, upholds the [S]tate’s authority as
parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton,
657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer,
455 U.S. 745 (1982); In re Angela E., 303 S.W.3d at 250.
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In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights proceedings are governed by statute, In re
Kaliyah S., 455 S.W.3d 533, 541 (Tenn. 2015), and the 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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting 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))) (internal
quotation marks omitted).
Tennessee Code Annotated section 36-1-113 governs the termination of parental
rights in this state. It provides, in pertinent part:
(c) 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.
Tenn. Code Ann. § 36-1-113(c). Therefore, every termination of parental rights case
requires the trial court “to determine whether the parent has engaged in a course of action
or inaction that constitutes one of the statutory grounds for termination[]” and whether
termination of the parent’s rights is in the child’s best interest. In re Donna E.W., No.
M2013-02856-COA-R3PT, 2014 WL 2918107, at *2 (Tenn. Ct. App. June 24, 2014).
“Because the stakes are so profoundly high[]” in a termination of parental rights case, the
statute “requires persons seeking to terminate a … parent’s parental rights to prove the
statutory grounds for termination by clear and convincing evidence.” In re Audrey S., 182
S.W.3d 838, 861 (Tenn. Ct. App. 2005). This Court has observed that:
This heightened burden of proof minimizes the risk of erroneous decisions.
In re C.W.W., 37 S.W.3d [467,] 474 [(Tenn. Ct. App. 2000)]; 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 Dep’t of Children’s Servs. v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug.13, 2003) (No Tenn. R. App. P. 11 application filed), and eliminates any
serious or substantial doubt about the correctness of the conclusions drawn
from the evidence. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re
S.M., 149 S.W.3d at 639; 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
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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 at 733; In
re C.W.W., 37 S.W.3d at 474.
Id.
If the trial court determines that clear and convincing evidence supports grounds for
termination in light of its factual findings, the 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.” In re Kaliyah S., 455 S.W.3d at 555. The
party petitioning for the termination of parental rights bears the burden of demonstrating
that termination is in the best interests of the child by clear and convincing evidence. In
re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010).
We review the trial court’s findings of fact de novo upon the record with a
presumption of correctness. Tenn. R. App. P. 3; In re Carrington H., 483 S.W.3d 507,
524 (Tenn. 2016) (citations omitted). However, “[i]n light of the heightened burden of
proof in termination proceedings … [we] must make [our] 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 Carrington H., 483 S.W.3d at 524 (citation omitted). Furthermore,
when the trial court has seen and heard witnesses, we give great deference to any findings
that are based on the court’s assessment of witness credibility. In re M.L.P., 228 S.W.3d
139, 143 (Tenn. Ct. App. 2007) (citation omitted). We will not reverse a finding based on
witness credibility unless the record contains clear and convincing evidence to contradict
it. Id. The trial court’s conclusion that clear and convincing evidence supports termination
of parental rights is a conclusion of law that we review de novo with no presumption of
correctness. In re Carrington H., 483 S.W.3d at 524 (citation omitted). With these
standards in mind, we turn to our review of the trial court’s findings of facts and
conclusions of law in this case.
IV. Ground for Termination
A court may terminate a parent’s rights if the parent “has been found to have
committed severe child abuse as defined in Tennessee Code Annotated § 37-1-102, under
any prior order of a court or is found by the court hearing the petition to termination
parental rights . . . to have committed severe child abuse against any child.” Tenn. Code
Ann. § 36-1-113(g)(4). Because Tennessee Code Annotated section 36-1-113(g)(4) refers
to “any child,” a parent’s rights can be terminated on this ground even though the parent
did not severely abuse the child or children that are the subject of the petition. Tenn. Code
Ann. § 36-1-113(g)(4); see In re Sebashtian K., No. E2020-01439-COA-R3-PT, 2021 WL
5071966, at *6 (Tenn. Ct. App. Nov. 2, 2021) (“As the statute makes clear, a parent’s rights
may be terminated when the parent ‘ha[s] committed severe child abuse against any
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child.’”); see also In re Trinity S., No. E2021-00098-COA-R3-PT, 2021 WL 3486188, at
*6 (Tenn. Ct. App. Aug. 9, 2021) (holding that because mother committed severe child
abuse against one child her parental rights could be terminated as to her other two children).
As is relevant to this case, “severe child abuse” is defined as “[t]he knowing exposure of a
child to or the knowing failure to protect a child from abuse or neglect that is likely to cause
serious bodily injury or death . . .” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i).
In its order terminating Mother’s parental rights, the trial court held:
In the case at bar, the parties have stipulated to the ground of severe child
abuse . . . . Specifically, the court finds that [Mother] was found to have
committed severe child abuse in the care of her [Children] pursuant to a
Memorandum Opinion and Order of Adjudication and Disposition entered
by this court on June 11, 2019 . . . and submitted as trial exhibit #5 in this
cause. In light of the foregoing, the court accepts the stipulation of the parties
and hereby finds by clear and convincing evidence that the ground of severe
child abuse has been established as a ground for termination of [Mother’s]
parental rights . . . .
Although the trial court “accept[ed] the stipulation of the parties,” the Tennessee
Supreme Court has held that, in order to terminate a parent’s parental rights, the trial court
is statutorily required to make written findings of fact and conclusions of law supported by
clear and convincing evidence presented at the hearing regardless of whether the parent
consents to or contests the termination. In re Angela E., 303 S.W.3d at 256; see also C.J.H.
v. A.K.G., No. M2001-01234-COA-R3-JV, 2002 WL 1827660, at *8 (Tenn. Ct. App. Aug.
9, 2002) (“An [unopposed] action to terminate parental rights . . . is subject to the same
statutory requirements as one that is opposed: proof by clear and convincing evidence that
grounds exist and that the child’s best interests are served by the termination.”). Thus, the
party seeking termination of parental rights is not relieved of its statutory burden of proving
by clear and convincing evidence both the ground for termination and that termination is
in the child’s best interest simply because a parent does not oppose the termination.
Further, “questions of law are not subject to stipulation by the parties to a lawsuit,”
Mast Advert. & Publ’g, Inc. v. Moyers, 865 S.W.2d 900, 902 (Tenn. 1993), and a “trial
court’s ruling that the evidence sufficiently supports termination of parental rights is a
conclusion of law.” In re Carrington H., 483 S.W.3d at 524. A stipulation that evidence
satisfied a statutory ground for termination or that termination of parental rights was in a
child’s best interest would be a nullity. See Mast Advert. & Publ’g, Inc., 865 S.W.2d at
902 (“[A] stipulation purporting to state a proposition of law is a nullity.”).
Although the trial court accepted Mother’s stipulation, it also heard proof
concerning the ground of severe child abuse. On appeal, we must determine whether the
proof presented together with any facts to which Mother stipulated constituted clear and
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convincing evidence of both the ground for termination and that termination was in the
Children’s best interests.
Having reviewed the record, we conclude that the issue of severe child abuse is res
judicata. The doctrine of res judicata applies when
an existing final judgment rendered upon the merits, without fraud or
collusion, by a court of competent jurisdiction, is conclusive of rights,
questions and facts in issue as to the parties and their privies, in all other
actions in the same or any other judicial tribunal of concurrent jurisdiction.
In re Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App. 2010) (quoting Galbreath v.
Harris, 811 S.W.2d 88, 90 (Tenn. Ct. App. 1990)). The doctrine works to “bar[] a second
suit between the same parties or their privies on the same cause of action with respect to
all issues which were or could have been litigated in the former suit.” Massengill v. Scott,
738 S.W.2d 629, 631 (Tenn. 1987). This Court has applied the doctrine “to prevent a parent
from re-litigating whether she committed severe child abuse in a later termination of
parental rights proceeding, when such a finding had been made in a previous dependency
and neglect action.” In re Heaven L.F., 311 S.W.3d at 439.
Turning to the record, both the Davidson County juvenile and circuit courts found
that Mother committed severe child abuse against the Twins. This Court affirmed the
severe abuse adjudication on appeal. In re Zaliyah S., No. M2019-01241-COA-R3-JV,
2020 WL 3494471, at *9 (Tenn. Ct. App. June 26, 2020) (no perm. app. filed).
Accordingly, the issue of whether Mother committed severe child abuse against the Twins
was fully litigated and is res judicata. Because the statutory ground allows a court to
terminate a parent’s rights when he or she has been found “to have committed severe child
abuse against any child,” Tenn. Code Ann. § 36-1-113(g)(4) (emphasis added), the finding
of severe child abuse against the Twins may also form the basis of the trial court’s
termination of Mother’s parental rights to Jaliyah. Because the question of severe child
abuse is res judicata, we conclude that the trial court properly terminated Mother’s parental
rights to all three Children on this ground.
V. Best Interests
Once it is determined that a ground exists for terminating a party’s parental rights,
the focus then shifts to whether termination is in the child’s best interest. In re Audrey S.,
182 S.W.3d at 877. Tennessee Code Annotated section 36-1-113(i) provides a non-
exhaustive list of factors for the trial court to consider in its best interest analysis, to-wit:
(i)(1) In determining whether termination of parental or guardianship rights
is in the best interest of the child, the court shall consider all relevant and
child-centered factors applicable to the particular case before the court.
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Those factors may include, but are not limited to, the following:
(A) The effect a termination of parental rights will have on the child’s critical
need for stability and continuity of placement throughout the child’s
minority;
(B) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological, and medical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting
the child’s basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental
attachment, and if not, whether there is a reasonable expectation that the
parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact with
the child and used the visitation or other contact to cultivate a positive
relationship with the child;
(F) Whether the child is fearful of living in the parent’s home;
(G) Whether the parent, parent's home, or others in the parent’s household
trigger or exacerbate the child’s experience of trauma or post-traumatic
symptoms;
(H) Whether the child has created a healthy parental attachment with another
person or persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons
other than parents and caregivers, including biological or foster siblings, and
the likely impact of various available outcomes on these relationships and
the child’s access to information about the child's heritage;
(J) Whether the parent has demonstrated such a lasting adjustment of
circumstances, conduct, or conditions to make it safe and beneficial for the
child to be in the home of the parent, including consideration of whether there
is criminal activity in the home or by the parent, or the use of alcohol,
controlled substances, or controlled substance analogues which may render
the parent unable to consistently care for the child in a safe and stable
manner;
(K) Whether the parent has taken advantage of available programs, services,
or community resources to assist in making a lasting adjustment of
circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent
in making a lasting adjustment in cases where the child is in the custody of
the department;
(M) Whether the parent has demonstrated a sense of urgency in establishing
paternity of the child, seeking custody of the child, or addressing the
circumstance, conduct, or conditions that made an award of custody unsafe
and not in the child’s best interest;
(N) Whether the parent, or other person residing with or frequenting the
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home of the parent, has shown brutality or physical, sexual, emotional, or
psychological abuse or neglect toward the child or any other child or adult;
(O) Whether the parent has ever provided safe and stable care for the child
or any other child;
(P) Whether the parent has demonstrated an understanding of the basic and
specific needs required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to
creating and maintaining a home that meets the child’s basic and specific
needs and in which the child can thrive;
(R) Whether the physical environment of the parent’s home is healthy and
safe for the child;
(S) Whether the parent has consistently provided more than token financial
support for the child; and
(T) Whether the mental or emotional fitness of the parent would be
detrimental to the child or prevent the parent from consistently and
effectively providing safe and stable care and supervision of the child.
(2) When considering the factors set forth in subdivision (i)(1), the prompt
and permanent placement of the child in a safe environment is presumed to
be in the child’s best interest.
The statutes recognize that, notwithstanding clear and convincing evidence of
grounds for termination, termination of parental rights is not always in the child’s best
interest. In re I.E.A., 511 S.W.3d 507, 517 (Tenn. Ct. App. 2016), perm. app. denied
(Tenn. Oct. 24, 2016). Whether termination of parental rights is in the child’s best interest
must be “‘viewed from the child’s, rather than the parent’s, perspective.’” In re Gabriella
D., 531 S.W.3d 662, 681 (Tenn. 2017) (quoting In re Audrey S., 182 S.W.3d at 878).
“[W]hen the best interests of the child and those of the adults are in conflict, such conflict
shall always be resolved to favor the rights and the best interests of the child[.]” Id. (quoting
Tenn. Code Ann. § 36-1-101(d) (2017)). Clearly, the best-interest analysis requires “more
than a ‘rote examination’ of the statutory factors.” Id. at 682 (quoting In re Audrey S.,
182 S.W.3d at 878). Further, it “consists of more than tallying the number of statutory
factors weighing in favor of or against termination.” Id. (citing White v. Moody, 171
S.W.3d 187, 193-94 (Tenn. Ct. App. 2004)). Although the trial court must consider all the
statutory factors and other relevant proof, one factor may be determinative of the best-
interests analysis in light of the circumstances surrounding the particular child and parent.
Id. (quotation omitted). The trial court’s factual findings relevant to the best-interest
analysis must be supported by a preponderance of the evidence. In re Kaliyah S., 455
S.W.3d at 555 (citation omitted). The trial court also must determine whether the combined
weight of the facts amounts to clear and convincing evidence that it is in the child’s best
interest to terminate parental rights. Id. (citation omitted).
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In its order terminating Mother’s parental rights, the trial court made the following
findings concerning the Children’s best interests:
(A) The effect a termination of parental rights will have on the child’s
critical need for stability and continuity of placement throughout the
child’s minority;
With respect to this factor, the Court finds it weighs in favor of termination.
It is clear the [C]hildren have resided in a stable environment with
[Grandmother] for nearly 6 years. Given the ages of the [C]hildren, they
have practically been in the care of the [Grandmother] their entire life and
refer to her as “mom”. While it appears as though [Mother] maintained a
stable living environment for herself and Yemaya, she has never done so for
the [C]hildren at issue in this case. The only option for the continued stability
of the [C]hildren is in the care of the [Grandmother].
(B) The effect a change of caretaker and physical environment is likely
to have on the child’s emotional, psychological, and medical condition;
With respect to this factor, the Court finds it weighs in favor of termination.
The record is replete with findings and testimony of [Mother’s] repeated
failures to adequately and appropriately tend to the medical needs of her
[C]hildren. In this case, the [T]wins nearly died because of her failure in this
regard. Further, there was unrebutted testimony that after visits with the
minor [C]hildren, the [C]hildren exhibit behavioral problems which are
impacting their educational well-being. Lastly, although [Mother] testified
that she could obtain adequate housing for all of the [C]hildren if they were
to come in[to] her custody, her current living arrangements do not provide
for the same. The Court finds that a change of caretakers for the [C]hildren,
specifically a change of custody or possession to the primary care of
[Mother] would likely prove to be detrimental to their emotional,
psychological and medical well-being.
(C) Whether the parent has demonstrated continuity and stability in
meeting the child’s basic material, educational, housing, and safety
needs;
With respect to this factor, the Court finds it weighs in favor of termination.
It is clear from the record [Mother] has done nothing to meet the basic needs
of the [C]hildren at issue in this case as set forth in this factor. The [C]hildren
have been in the care of the [Grandmother] for nearly their entire li[ves].
During this time, [Mother] has provided little financial support (other than
that which was taken from her wages or federal income tax returns by
garnishments), no basic needs other than a pair of shoes, no housing[,] and
[has] failed to keep the [C]hildren safe when in her care. Since she has never
done any of these things, the Court is unable to find that she will continue to
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do so.
(D) Whether the parent and child have a secure and healthy parental
attachment, and if not, whether there is a reasonable expectation that
the parent can create such attachment;
With respect to this factor, the Court finds it weighs in favor of termination.
The [C]hildren who are the subject of this action have been in the care of the
[Grandmother] for nearly 6 years and they are ages 7 and 6. [Mother] has not
acted in the role of parent of caregiver for these [C]hildren for the vast
majority of their lives and when she did, the [T]wins nearly died from
malnutrition. Although the [C]hildren may know [Mother] as their mother,
despite the fact they refer to the [Grandmother] as “mom,” there has been no
proof they have a parental attachment with [Mother]—secure, healthy or
otherwise.
(E) Whether the parent has maintained regular visitation or other
contact with the child and used the visitation or other contact to cultivate
a positive relationship with the child;
With respect to this factor, the Court finds it weighs in favor of termination.
The proof revealed [Mother] has been inconsistent with the visitation granted
to her for [the Twins] . . . . The record further shows she could exercise more
visitation than currently ordered if she allowed the [Grandmother] to
supervise the visitation; however, she has chosen not to do so. Additionally,
[Mother] does not exercise visitation with Jaliyah. She testified this is
because the [Grandmother] will not allow the visitation, yet she has taken no
steps to obtain the same.
***
(H) Whether the child has created a healthy parental attachment with
another person or persons in the absence of the parent;
With respect to this factor, the Court finds it weighs in favor of termination.
The only other persons the [C]hildren have created a healthy parental
attachment [with] is the [Grandmother] and perhaps [with Mother’s cousin]
as it relates to Jaliyah. The Court further finds the [C]hildren have more of
a healthy parenting attachment with [Grandmother] than [Mother].
***
(J) Whether the parent has demonstrated such a lasting adjustment of
circumstances, conduct, or conditions to make it safe and beneficial for
the child to be in the home of the parent, including consideration of
whether there is criminal activity in the home or by the parent, or the
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use of alcohol, controlled substances, or controlled substance analogues
which may render the parent unable to consistently care for the child in
a safe and stable manner;
With respect to this factor, the Court finds it weighs in favor of termination.
[Mother] has failed to demonstrate a lasting adjustment of circumstances,
conduct and conditions to make it safe and beneficial for the [C]hildren to be
in her home. She has continued to substitute her own judgment for that of
medical professionals which nearly lead to the death of the [T]wins in this
case and delayed giving consent for the [C]hildren to receive medical
treatment.
(K) Whether the parent has taken advantage of available programs,
services, or community resources to assist in making a lasting
adjustment of circumstances, conduct, or conditions;
With respect to this factor, the Court finds it weighs in favor of termination.
[Mother] provided no documentation of definitive proof she has been
compliant with the mental health services required by the Department and
Permanency Plan. Further, she has both failed to substantially comply with
the visitation afforded to her and maximize visitation with the [C]hildren by
allowing the same to be supervised by [Grandmother]. Said visitation would
have been helpful to [Mother] in establishing and maintaining a secure and
healthy parental relationship.
(L) Whether the department has made reasonable efforts to assist the
parent in making a lasting adjustment in cases where the child is in the
custody of the department;
With respect to this factor, the Court finds it weighs in favor of termination.
The [C]hildren who are the subject of this action came into the care/legal
custody of [DCS] within a year of birth. At all times while in the custody of
[DCS], until this Petition was filed on October 28, 2021, [DCS] worked with
[Mother] to assist her in making lasting adjustments to improve her situation
and relationship with her [C]hildren. However, the Mother failed to
adequately take advantage of the same and in fact has been untruthful both
to [DCS] and [the] Court in various proceedings which has thwarted attempts
to assist her.
(M) Whether the parent has demonstrated a sense of urgency in
establishing paternity of the child, seeking custody of the child, or
addressing the circumstance, conduct, or conditions that made an award
of custody unsafe and not in the child’s best interest;
With respect to this factor, the Court finds it weighs in favor of termination.
[Mother] had nearly 6 years to establish a meaningful relationship with her
[C]hildren that are the subject of this action, participate in mental health
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services and address issues that lead to the removal and continued removal
of the [C]hildren in her care. The record is deficient [of] testimony, proof
and records that establish she has put forth more than little effort to address
the areas of concern. At a minimum, she should have knowledge and
understanding as to her actions that lead to the removal of the [C]hildren and
she has failed to simply acknowledge or display the same. Without taking
this first step, all other actions are insignificant.
(N) Whether the parent, or other person residing with or frequenting
the home of the parent, has shown brutality or physical, sexual,
emotional, or psychological abuse or neglect toward the child or any
other child or adult;
With respect to this factor, the Court finds it weighs in favor of termination.
As stated above, the parties stipulated to the ground of severe child abuse . .
. . Specifically, [Mother] was found to have committed severe child abuse
in the care of [the Twins] pursuant to a Memorandum Opinion and Order of
Adjudication and Disposition entered by this Court on June 11, 2019 . . . and
submitted as trial exhibit #5 in this cause.
(O) Whether the parent has ever provided safe and stable care for the
child or any other child;
With respect to this factor, the Court finds it weighs in favor of termination.
While it appears as though [Mother] has provided safe and stable care for her
youngest child Yemaya over the past 2 years, there is no proof she has done
the same for the [C]hildren who are the subject of this matter. Instead, the
record reflects the dire state of the [T]wins when last in her care, which nearly
resulted in their death[s]. The record is further replete with evidence
[Mother] is either unaware or unconcerned with her decisions and behaviors
[that] endangered these [C]hildren and she instead blames the [Grandmother]
in this cause for her shortcomings and poor decision making. It is difficult
for the Court to believe these [C]hildren could be safe in the care of [Mother]
without her own recognition of her poor decisions and faults and steps to
overcome the same.
(P) Whether the parent has demonstrated an understanding of the basic
and specific needs required for the child to thrive;
With respect to this factor, the Court finds it weighs in favor of termination
for the reasons set forth in various sections above and specifically section
(O). Further, she has not offered any testimony or proof she is aware of basic
and specific needs required for the [C]hildren to thrive.
(Q) Whether the parent has demonstrated the ability and commitment
to creating and maintaining a home that meets the child’s basis and
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specific needs and in which the child can thrive;
With respect to this factor, the Court finds it weighs in favor of termination
for the reasons set forth in various sections above and specifically section
(O). Further, [Mother] testified she currently resides in a home that is
inadequate to fully provide for the child currently in her care and the 3
[C]hildren who are the subject of this action, although she may be able to
upgrade to a more suitable residence. Further, she has not offered any
testimony or proof [that] she is aware of basic and specific needs required
for the [C]hildren to thrive.
(R) Whether the physical environment of the parent’s home is healthy
and safe for the child;
With respect to this factor, the Court finds it weighs against termination.
Testimony and the record reflect the physical environment of the home of
[Mother] is healthy and safe at least as it relates to the care of Yemaya as [to]
the [C]hildren who are the subject of this action[, they] have not been present
in her home. However, it should be noted the home is inadequate to house
the 3 [C]hildren who are subject of this action as well as Yemaya as stated
above.
(S) Whether the parent has consistently provided more than token
support for the child;
With respect to this factor, the Court finds it does not weigh in favor of
termination. [Mother] testified she is under a child support order to pay the
[Grandmother] $12.50 per month for each of the [T]wins, for a total of $25.00
per month. She agreed she has not consistently paid child support due to lack
of employment or incarceration; however, the [Grandmother] has received
money from her through IRS tax intercepts from [Mother] and she supports
the [C]hildren during visits with the [C]hildren and through the purchase of
toys, shoes and tickets for entertainment and activities. The payment records
reflect sporadic payments over the 5-year period support was ordered but,
there are large sums resulting from income tax interceptions (presumably to
satisfy arrearage balances.). Based on the testimony of [Mother] and the
payment records submitted as Trial Exhibit #19, the Court finds she has
provided more than token financial support for the [C]hildren, through
income wage assignments and income tax interceptions.
(T) Whether the mental or emotional fitness of the parent would be
detrimental to the child or prevent the parent from consistently and
effectively providing safe and stable care and supervision of the child;
With respect to this factor, the Court finds it weighs in favor of termination.
As stated above, the record is replete with evidence [Mother] is either
unaware or unconcerned with her decisions and behaviors endangered these
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[C]hildren and she instead blames the [Grandmother] . . . for her
shortcomings and poor decision making. This in and of itself presents a
detriment and danger to the [C]hildren as it relates to the ability of [Mother]
to consistently and effectively provide safe and stable care and supervision
of the [C]hildren. The Court is unable to find these [C]hildren could be safe
in the care of [Mother] without her own recognition of her poor decisions
and faults and steps to overcome the same.
In addition to the foregoing, the trial court also determined that statutory factors (F),
(G), and (I) did not weigh in favor or against termination of Mother’s parental rights. The
evidence supports the trial court’s findings. Jaliyah has lived with Grandmother since she
was eight months old, and the Twins have lived with Grandmother since they were one
month old. In short, they have known no other home. From the record, the Children are
doing well in Grandmother’s care. They have relationships with their great-grandmother,
cousins, and other extended family. However, their relationship with Mother is tenuous.
At trial, Mother testified that she has not seen Jaliyah for more than a year. Mother’s
absence from Jaliyah’s life is the result of Mother’s choice not to exercise her visitation
because it is supervised by Grandmother, from whom Mother is estranged. Mother blames
Grandmother for many of Mother’s problems and opines that the Children will not be safe
in Grandmother’s care. There is no evidence to support Mother’s concerns. The evidence
shows that Grandmother has been a constant in these Children’s lives and has made great
efforts to assist Mother throughout these proceedings and before. Mother does not
appreciate the fact that Grandmother is raising her Children. Due to her largely
unaddressed mental health issues, Mother remains paranoid of all medical personnel and
has worked to delay and block necessary medical intervention for the Children. There is
no evidence that this behavior would cease if Mother were to regain custody.
There can be no question that both Jaliyah and the Twins suffered severe
malnutrition and failure to thrive while in the brief care of Mother. In fact, as the trial court
notes, Mother admitted that, without DCS intervention, the Twins “would have starved to
death.” In view of the fact that Mother’s mental health issues are ongoing and there is proof
that her treatment has been sporadic, it would pose too great a risk to the Children to place
them back in Mother’s care. Although there is no evidence that Yalaya has suffered the
same malnutrition that her sibling endured, Mother’s testimony indicates that Mother still
has concerns about all of her children’s diets. Mother testified that Yemaya, who is four
years old, is a “vegan.” Grandmother testified that during visits Mother feeds the Twins
“organic” food that upsets their stomachs. There is nothing in the record to indicate the
root cause of why Mother starved these Children, and so long as that question goes
unanswered, it would not be safe for the Children to be returned to her custody.
Furthermore, the record indicates that Mother does not know what schools the
Children attend. She does not know their daily routines. In short, there is no parental bond
between Mother and these Children. On the other hand, the Children are bonded with
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Grandmother, whom they refer to as “mom.” At visits, Mother corrects the Children when
they call Grandmother mom, and tells them that she is their mother. Mother has told Jaliyah
that Grandmother kidnapped her, and Mother has threatened to kidnap the Twins if given
an opportunity. The Children love Grandmother and, by all accounts, are well-cared for in
her custody. It is clear that removing them from the only stable home they have ever known
would be detrimental to their emotional, psychological, and medical health. The evidence
clearly and convincingly supports the trial court’s determination that termination of
Mother’s parental rights is in the Children’s best interests.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s order terminating
Appellant/Mother’s parental rights. The case is remanded for such further proceedings as
may be necessary and are consistent with this opinion. Costs of the appeal are assessed to
the Appellant, Tamika S. Because Tamika S. is proceeding in forma pauperis in this
appeal, execution for costs may issue if necessary.
S/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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