In Re Alexis C.

08/28/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 1, 2018
IN RE ALEXIS C.
Appeal from the Juvenile Court for Maury County
No. 2016-JV-428 George L. Lovell, Judge
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No. M2017-02052-COA-R3-PT
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This is a termination of parental rights case involving the parental rights of the mother,
Bethany C. (“Mother”), to her minor child, Alexis C. (“the Child”), who was two years of
age at the time of trial. The Child was born in 2014 to Mother and Jeremy C. (“Father”).
In August 2015, the Maury County Juvenile Court (“trial court”) entered an order
removing the Child from Mother’s custody and placing the Child into the temporary legal
custody of the Tennessee Department of Children’s Services (“DCS”). The Child was
immediately placed in foster care, where she remained at the time of trial. The trial court
subsequently entered an order on October 12, 2015, wherein the trial court found that the
Child was dependent and neglected due to Mother’s and Father’s incarceration. On
August 23, 2016, DCS filed a petition to terminate the parental rights of Mother and
Father. Following a bench trial, the trial court terminated Mother’s parental rights to the
Child upon determining by clear and convincing evidence that (1) Mother had abandoned
the Child by failing to provide a suitable home, (2) Mother had failed to substantially
comply with the requirements of the permanency plans, (3) the conditions leading to
removal still persisted and other conditions persisted that would in all probability cause
the Child to be subjected to further abuse or neglect, and (4) Mother had failed to
manifest an ability and willingness to personally assume custody of and financial
responsibility for the Child. The court further found clear and convincing evidence that
termination of Mother’s parental rights was in the best interest of the Child. Mother has
appealed.1 Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
1
The trial court also terminated Father’s parental rights to the Child. Father did not appeal the decision of
the trial court and is not participating in this appeal. We will therefore confine our analysis to those facts
relevant to Mother.
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Daniel L. Murphy, Columbia, Tennessee, for the appellant, Bethany C.
Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Factual and Procedural Background
The underlying dependency and neglect proceedings commenced when Father
filed a custody petition on July 28, 2015, alleging that the Child was dependent and
neglected in the care of Mother. The trial court entered an emergency temporary custody
order, placing the Child into the custody of Father pending a preliminary hearing. The
trial court conducted a preliminary hearing on July 30, 2015, determining that probable
cause existed to establish that not only was the Child dependent and neglected in the care
of Mother but that the Child was also dependent and neglected in the care of Father. As a
less drastic alternative to foster care, the trial court ordered that the Child be returned to
the custody of Mother “so long as Mother lived in the home of her father, [D.J.], and
stepmother, [B.J.],” (collectively, “Grandparents”) and so long as Mother was prohibited
from leaving the home alone with the Child.
Prior to the adjudicatory hearing, several family members filed separate petitions
for custody of the Child, including B.J. and the Child’s paternal aunt, K.P., who later
served as the Child’s foster mother (“Foster Mother”). On August 11, 2015, Foster
Mother filed a petition for custody, alleging that the Child was dependent and neglected
and requesting that custody of the Child be placed with her. According to K.P., Mother
and Father had been arrested, and the Child had been left in the care of Grandparents,
who Foster Mother alleged abused prescription drugs.
On August 12, 2015, the trial court denied the petitions for custody and entered a
“Bench Order – Custody to DCS,” placing the Child into the custody of DCS due to the
parents’ incarceration. Mother had been arrested for violating a no-contact order with
Father, and Father had been arrested on charges of attempted first degree murder,
especially aggravated robbery, and aggravated assault. The Child’s guardian ad litem
filed a petition in response to the court’s custody order, requesting that the court find the
Child dependent and neglected due to the parents’ incarceration and the alleged drug use
in Grandparents’ home. DCS also filed a petition in response to the trial court’s bench
order, recommending that the Child be placed into the custody of K.P. and requesting that
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the court review the Child’s status at a preliminary hearing to determine the necessity for
continued foster care.
The trial court conducted a preliminary hearing on August 24, 2015, determining
that the Child should remain in DCS custody pending further hearing. Following an
adjudicatory hearing conducted on October 12, 2015, the trial court found by clear and
convincing evidence, upon stipulation by the parties, that the Child was dependent and
neglected “due to the incarceration of both [parents] at the time of the court’s issuance of
the bench order.” The trial court further ordered that it was in the best interest of the
Child to remain in the custody of DCS.
During the pendency of the dependency and neglect proceedings, the trial court
ratified three permanency plans, including plans dated September 9, 2015; January 12,
2016; and July 8, 2016.2 On September 9, 2015, DCS provided Mother with a copy of
the Criteria and Procedures for Termination of Parental Rights. The document was also
explained to Mother on that date, and Mother signed it.
DCS filed a petition to terminate the parents’ rights on December 8, 2016. The
trial court conducted a bench trial concerning the termination petition on March 24, 2017,
and subsequently took the matter under advisement. The court entered an order on July
17, 2017, terminating Mother’s and Father’s parental rights. As to Mother, the trial court
found by clear and convincing evidence that (1) Mother had abandoned the Child by
failing to provide a suitable home, (2) Mother had not substantially complied with the
permanency plans, (3) the conditions leading to the Child’s removal from Mother’s
custody persisted and other conditions persisted that would in all probability cause the
Child to be subjected to further abuse or neglect, and (4) Mother had failed to manifest an
ability and willingness to assume legal and physical custody of the Child or financial
responsibility for the Child. The court further found that termination of Mother’s
parental rights was in the best interest of the Child. Mother timely appealed.3
2
The date provided on the third permanency plan incorrectly reflects the previous permanency plan date;
however, the date provided by all parties signing the permanency plan was July 8, 2016.
3
Mother’s notice of appeal was incorrectly filed with the trial court instead of the appellate court clerk.
See Tenn. R. App. P. 4. Mother had filed her notice of appeal with the trial court clerk on August 11,
2017. Mother did not file her notice of appeal with the appellate court clerk until October 12, 2017.
Under the transitional provision of Tennessee Rule of Appellate Procedure 4, Mother’s notice of appeal
was required to be filed with the appellate court clerk on or before September 5, 2017. The trial court had
transmitted a copy of the notice of appeal to this Court on August 17, 2017. Because this Court received
a copy of the notice of appeal before September 5, 2017, we have considered Mother’s notice of appeal to
be timely.
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II. Issues Presented
Mother raises five issues for our review, which we have restated slightly:
1. Whether the trial court erred by finding clear and convincing
evidence of the statutory ground of Mother’s abandonment of the
Child based on Mother’s failure to provide a suitable home.
2. Whether the trial court erred by finding clear and convincing
evidence of the statutory ground of Mother’s substantial
noncompliance with the permanency plans.
3. Whether the trial court erred by finding clear and convincing
evidence that the conditions leading to removal persisted and that
other conditions persisted that would in all probability cause the
Child to be subjected to further abuse or neglect.
4. Whether the trial court erred by finding clear and convincing
evidence of the statutory ground of Mother’s failure to manifest an
ability and willingness to personally assume custody of or financial
responsibility for the Child.
5. Whether the trial court erred by finding clear and convincing
evidence that termination of Mother’s parental rights was in the best
interest of the Child.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
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“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:
The parental rights at stake are “far more precious than any property
right.” Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)].
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 (recognizing that a
decison 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; see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty,
N.C., 452 U.S. 18, 27 (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. 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).
***
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
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convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
IV. Statutory Grounds for Termination of Mother’s Parental Rights
Tennessee Code Annotated § 36-1-113 (2017) lists the statutory requirements for
termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.
***
(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.
The trial court determined that the evidence clearly and convincingly supported a finding
of four statutory grounds to terminate Mother’s parental rights: (1) abandonment by
failing to provide a suitable home for the Child, (2) substantial noncompliance with the
permanency plans, (3) persistence of the conditions leading to the Child’s removal, and
(4) failure to manifest an ability and willingness to assume custody of or financial
responsibility for the Child. We will address each statutory ground in turn.
A. Abandonment by Failure to Provide a Suitable Home for the Child
The trial court found that Mother had abandoned the Child based upon the
statutory ground of failure to provide a suitable home. Mother contends that DCS failed
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to meet its burden of proof to support this ground. Upon a thorough review of the record,
we disagree.
Tennessee Code Annotated § 36-1-113(g) (2017) provides in relevant part:
Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and non-exclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred; . . .
Regarding the definition of abandonment applicable to this ground, Tennessee Code
Annotated § 36-1-102(1)(A)(ii) (2017) provides:
The child has been removed from the home of [a] parent or parents or a
guardian or guardians as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as defined
in § 37-1-102, and the child was placed in the custody of the department or
a licensed child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds, that the
department or a licensed child-placing agency made reasonable efforts to
prevent removal of the child or that the circumstances of the child’s
situation prevented reasonable efforts from being made prior to the child’s
removal; and for a period of four (4) months following the removal, the
department or agency has made reasonable efforts to assist [a] parent or
parents or a guardian or guardians to establish a suitable home for the child,
but that [a] parent or parents or a guardian or guardians have made no
reasonable efforts to provide a suitable home and have demonstrated a lack
of concern for the child to such a degree that it appears unlikely that they
will be able to provide a suitable home for the child at an early date. The
efforts of the department or agency to assist a parent or guardian in
establishing a suitable home for the child may be found to be reasonable if
such efforts exceed the efforts of the parent or guardian toward the same
goal, when the parent or guardian is aware that the child is in the custody of
the department; . . .
For the statutory ground of abandonment by failure to provide a suitable home to
be applicable, DCS must first prove that the Child had been removed from Mother’s
home and that the Child had been found by the court to be dependent and neglected.
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Termination of parental rights based upon this statutory ground requires proof that the
child was removed from the home of the parent whose rights are being terminated. See
Tenn. Code Ann. § 36-1-102(1)(A)(ii); In re K.M.K., No. E2014-00471-COA-R3-PT,
2015 WL 866730, at *5 (Tenn. Ct. App. Sept. 30, 2014).
The record before us reflects that the trial court entered a “Bench Order – Custody
to DCS” on August 12, 2015, removing the Child from the custody of Mother and
placing the Child in the custody of DCS. The trial court subsequently found on October
12, 2015, by clear and convincing evidence, that the Child was dependent and neglected
while in Mother’s care, due in part to Mother’s incarceration. Therefore, the record
supports the trial court’s finding that the Child was removed from Mother’s custody and
placed into foster care as the result of proceedings in the trial court wherein the Child was
found to be dependent and neglected.
In ordering the Child’s removal from Mother’s custody, the trial court found that
DCS was not required to exert reasonable efforts to prevent the Child’s removal from the
home at that time due to the emergency nature of the circumstances. However, in order
to satisfy this ground for termination, DCS was required to make reasonable efforts to
assist Mother in establishing a suitable home for the Child for a period of four months
following the Child’s removal from Mother’s custody. See Tenn. Code Ann. § 36-1-
102(1)(A)(ii). In its final judgment, the trial court found that DCS had made reasonable
efforts to assist Mother in establishing a suitable home for the Child during the applicable
time period. Upon careful review, we agree.
During trial, Molly Dempsey, a DCS family services worker, testified regarding
the efforts that DCS had made to assist Mother. Ms. Dempsey testified and the trial court
found that while the Child was in DCS custody, DCS had (1) provided Mother with a
Maury County Resource Guide, which provided Mother with information regarding
housing assistance; (2) offered to perform a walk-through of Mother’s residence to ensure
it was safe and appropriate for the Child; (3) offered to conduct criminal background
checks on all individuals residing in Mother’s home; (4) developed and revised
permanency plans to assist Mother in remedying the reasons necessitating foster care; (5)
provided therapeutic visitation for Mother and the Child to assist Mother with parenting
skills; (6) made referrals for Mother’s alcohol and drug assessment and treatment; (7)
conducted random drug screens; and (8) made referrals for Mother’s mental health
assessment and treatment, including treatment for domestic violence and trauma issues.
The evidence preponderates in favor of the trial court’s finding that DCS made
reasonable efforts to assist Mother in establishing a suitable home for the Child.
Establishing a suitable home for a child entails more than merely providing an
appropriate physical location to reside. See In re Navada N., 498 S.W.3d 579, 596 (Tenn.
Ct. App. 2016); In re A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002). A suitable
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home for a child requires a safe and stable environment in which the child may reside
with a proper caregiver who can provide the appropriate care and attention necessary to
meet the child’s needs. In re James V., No. M2016-01575-COA-R3-PT, 2017 WL
2365010, at *5 (Tenn. Ct. App. May 31, 2017). Additionally, this Court has determined
that “a parent’s compliance with counseling requirements is ‘directly related to the
establishment and maintenance of a suitable home.’” In re Matthew T., No. M2015-
00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016).
Despite DCS’s efforts, the trial court determined that Mother had made no
reasonable efforts to provide a suitable home and that her actions had “demonstrate[d] a
lack of concern for the child to such a degree that it appears unlikely that [she] will be
able to provide a suitable home for the child at an early date.” Specifically, the trial court
found that Mother had failed to address her mental health issues because she had attended
only five of her mental health therapy appointments during the fourteen months prior to
the termination trial. The trial court further found that Mother had failed to maintain
stable employment as evinced by her testimony that she had held approximately nine
different jobs during the time the Child continued in DCS custody.
Additional evidence supported the trial court’s determination that Mother failed to
maintain stable housing. Mother stated that she had resided in eight different places in
the fourteen months the Child was in DCS custody. The trial court emphasized that
Mother had stayed with friends and relatives and, on two occasions, had moved in with
individuals for whom she was providing in-home care during short periods of time. At
the time of trial, Mother was residing with another individual, and the landlord had been
awarded possession of Mother’s home due to nonpayment of rent. Although recognizing
that Mother had paid the rent arrearage balance and that the landlord had ultimately
allowed her to remain in the home, the trial court found that “it is clear that [Mother] has
failed to maintain stable housing.”
Upon a thorough review of the record, we conclude that the evidence
preponderates in favor of the trial court’s finding by clear and convincing evidence that
Mother abandoned the Child by failing to provide a suitable home. We therefore affirm
this statutory ground for termination of Mother’s parental rights.
B. Substantial Noncompliance with Permanency Plans
Mother also contends that the trial court erred by finding clear and convincing
evidence that she failed to substantially comply with the reasonable responsibilities set
out in the permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides as a
ground for termination of parental rights:
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There has been substantial noncompliance by the parent or guardian with
the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4[.]
To terminate a parent’s parental rights pursuant to Tennessee Code Annotated §
36-1-113(g)(2), the parent’s noncompliance with the permanency plan must be
substantial. See In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002). Additionally, our
Supreme Court has held that “the real worth and importance of noncompliance should be
measured by both the degree of noncompliance and the weight assigned to that
requirement.” Id. This Court has explained the following regarding the ground of
substantial noncompliance with the permanency plan:
Mere noncompliance is not enough to terminate a parent’s rights. In
re Valentine, 79 S.W.3d [643,] 548 [(Tenn. Ct. App. 2004)]. Additionally,
the unsatisfied requirement(s) must be important in the plan’s scheme. Id.
A “[t]rivial, minor, or technical” deviation from the permanency plan’s
requirements does not qualify as substantial noncompliance. In re M.J.B.,
140 S.W.3d [643,] 656 [(Tenn. Ct. App. 2004)] (citing In re Valentine, 79
S.W.3d at 548). Improvements in compliance are construed in favor of the
parent. In re Valentine, 79 S.W.3d at 549 (citing State Dept. of Human
Servs. v. Defriece, 937 S.W.2d 954, 961 (Tenn. Ct. App. 1996)). Yet, we
must determine compliance in light of the permanency plan’s important
goals:
In our view, a permanency plan is not simply a list of tasks
with boxes to be checked off before custody is automatically
restored. Rather, it is an outline for doing the things that are
necessary to achieve the goal of permanency in children’s
lives. We think that where return to parent is the goal,
parents must complete their responsibilities in a manner that
demonstrates that they are willing and able to resume caring
for their children in the long-term, not on a month-to-month
basis.
In re V.L.J., No. E2013-02815-COA-R3-PT, 2014 WL 7418250, at *8
(Tenn. Ct. App. Dec. 30, 2014).
In re Abbigail C., No. E2015-00964-COA-R3-PT, 2015 WL 6164956, at *20-21 (Tenn.
Ct. App. Oct. 21, 2015).
Mother argues that the trial court erred by failing to review “whether [Mother’s]
failure to comply with the plan was substantial in light of the importance of the
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requirements to the overall plan.” The trial court ratified an initial permanency plan on
October 12, 2015, which was developed on September 9, 2015, and determined that
certain requirements as to Mother were reasonably related to remedying the reasons
necessitating foster care. Pursuant to the plan, Mother was required to (1) sign a release
to allow DCS to obtain drug screen results from the provider, (2) comply with random
pill counts by DCS, (3) submit to random drug screens, (4) not allow the Child around
any abuse of alcohol or drugs, (5) obtain and maintain stable housing for a minimum of
four months “with no interruption of house payments or services such as electric and
water,” (6) notify DCS when she obtained a home in order for a home study to be
conducted, (7) maintain a legal income to provide stability for the Child, (8) complete a
mental health intake appointment and be open and honest with the counselor, (9) address
domestic violence and trauma through counseling, (10) sign a release for DCS to obtain
mental health records, (11) attend all court hearings, (12) follow all court orders, (13)
avoid new criminal charges, and (14) provide DCS with documentation regarding her
current criminal charges.
A second permanency plan was developed on January 12, 2016, and ratified by the
trial court on February 1, 2016. This plan provided that Mother would complete the same
requirements as in the previous plan and included an additional requirement that Mother
“provide proof of housing such as [a] lease or employment agreement.”4 The
permanency plan further instructed that DCS would need to complete a background
check concerning all individuals residing in Mother’s home or with whom Mother was
residing.
A third permanency plan was developed on July 8, 2016, and ratified by the trial
court on October 10, 2016. We note that the expected achievement date on this plan was
January 2017, approximately two months prior to trial. The plan included the same
requirements for Mother as in previous plans and contained additional requirements that
Mother would (1) submit pay stubs to DCS as proof of her “consistent legal means of
income” and (2) follow all rules of her probation and “check in” with her probation
officer one time per week. In its final order, the trial court determined that the
requirements contained in the third permanency plan were reasonably related to
remedying the reasons necessitating foster care.
With respect to this statutory ground, the trial court focused on Mother’s failure to
comply with the permanency plan requirements regarding stable housing, stable
employment, and mental health therapy in concluding that Mother failed to substantially
comply with the responsibilities in the permanency plans. On appeal, Mother does not
argue that she complied with her mental health therapy appointments but instead claims
4
DCS included an employment agreement as proof of housing due to Mother’s employment during the
case as a home health care provider sometimes residing in the home of her patient.
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that “it was not an important part of the plan.” As noted above, the trial court determined
that the requirements in the permanency plans were reasonable and related to remedying
the reasons necessitating foster care. Upon careful review of the record, we agree.
The evidence presented at trial demonstrated that Mother and Father had a history
of domestic violence during their relationship. Mother testified to abuse that she suffered
at the hands of Father. Mother had previously pled guilty to vandalism and domestic
assault on January 6, 2014. Additionally, the Child entered DCS custody following
Mother’s arrest for violation of a no-contact order between Mother and Father. In each
permanency plan, a desired outcome was for Mother to have her “mental health needs”
met. As part of her therapy, Mother was to address domestic violence and trauma
counseling. Mother was scheduled to attend therapy once a month but only attended five
of the scheduled appointments from November 2015 through December 2016. Based on
the evidence, we disagree with Mother’s assertion that this was not an important action
step to complete in order for her to provide a safe home for the Child.
Also included in the permanency plans was a requirement that Mother would
maintain “a consistent legal means of income in order to provide stability” for the Child.
As part of the July 8, 2016 permanency plan, Mother was required to submit copies of her
paystubs as proof of employment. According to Ms. Dempsey, Mother had only
presented one paystub during the entire time the Child was in DCS custody.
At trial, Mother related that she had several jobs during the pendency of the case
and stated that she was never unemployed. The trial court found that Mother had
changed jobs on nine different occasions in the fourteen months prior to trial and that
Mother had failed to “provide proof of employment on more than one or two occasions,
which falls far short of compliance with the requirement.” The trial court accordingly
determined that Mother had failed to maintain stable employment. We agree with the
trial court that having a consistent and legal means to financially provide for the Child is
an important factor in caring for the Child. Moreover, the evidence preponderates in
favor of the trial court’s finding that Mother had not maintained stable employment or
provided proof of her employment to DCS or the court throughout the time the Child was
in DCS custody.
In addition, Mother’s lack of stable housing has been a consistent concern
throughout the dependency and neglect action as evinced by the inclusion in all three
permanency plans submitted to the trial court of a goal that Mother would provide a safe
and stable home for the Child. During trial, Ms. Dempsey testified that Mother had not
provided her with a copy of Mother’s lease agreement. Ms. Dempsey further explained
that Mother had reported to DCS that Mother had lived at approximately ten or eleven
locations during the pendency of the DCS matter and that Mother had not lived at any of
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those places for more than four consecutive months. The trial court found that Mother
had changed residences eight times during the fourteen months prior to trial.
The record demonstrates that Mother was provided notice to vacate the premises
of her current residence by the landlord on January 13, 2017. Court documents reflect
that Mother’s landlord was awarded possession of the property on February 13, 2017, due
to nonpayment of rent. Ms. Dempsey noted that she was unaware of where Mother was
currently living after Mother had been evicted in February 2017. Mother, however,
provided two handwritten receipts that she alleged were rental payment receipts. One
reflected, “from SB,” and another indicated, “from SB to BC.” Mother testified that her
landlord had allowed her to remain in the home following the eviction because she had
paid the rental arrears she owed in February 2017. Concerning the matter, the trial court
determined that although Mother was allowed to remain in her home after becoming
current on rental payments, she had not complied with the permanency plan requirement
that she maintain stable housing without having interruption in rental payments.
By Mother’s admission, she had fallen behind on her rental payments. The
permanency plans required Mother to maintain a stable residence for a period of at least
four months without an interruption in rental payments or utility services. According to
Mother, she had been in her current residence for more than four consecutive months at
the time of trial after her landlord allowed her to remain in the residence. Mother
testified that she paid toward her arrearage in February 2017, only one month prior to
trial. Even had Mother paid rent and utilities in a timely fashion in February and March
of 2017, she still had not maintained a stable residence without an interruption in her
rental payments for a period of four months by the time of trial. Ergo, we agree with the
trial court that Mother did not comply with this requirement of the permanency plans.
Mother further asserts that a fourth permanency plan had not been approved by the
trial court prior to the termination trial and that “there was no way the court could review
whether substantial requirements of the plan had been met.” We note that there were
three permanency plans admitted as exhibits during trial. The permanency plan dated
March 21, 2017, with an “Outcome Expected Achievement Date” of July 2017, was not
entered as an exhibit during trial and does not appear to have been considered by the trial
court when making its finding that Mother had not substantially complied with the
requirements of her permanency plans.
Development of permanency plans for all children in foster care is required by
Tennessee Code Annotated § 37-2-403 (2014), which requires that a permanency plan be
developed initially within thirty days following the child’s placement into foster care and
a reevaluation and update to the plan at least annually. Additionally, DCS’s
administrative policy provides that permanency plans will be updated at least every six
months for most children upon the expiration of the goal achievement date and no less
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often than annually. See generally Tenn. DCS Policy 16.31(I) (Mar. 29, 2018). Because
of the continuous updating of permanency plans either every six months or annually, it is
not surprising that ratification of an updated permanency plan was pending before the
trial court at the time of the termination trial date. See Tenn. Code Ann. § 37-2-403.
Moreover, we note that the fourth permanency plan in the instant case contains
almost identical action steps for Mother to those in the previous plans. During trial, the
previous permanency plans were entered into evidence as exhibits, and testimonial
evidence was presented regarding Mother’s progress on her responsibilities as set forth in
the permanency plans. We therefore disagree with Mother’s contention that the trial
court was unable to ascertain her progress in accordance with the permanency plans
without consideration of the fourth plan.
We commend Mother on complying with the visitation and drug screen provisions
of her permanency plans. However, considering all of the relevant evidence in the
record, we conclude that the evidence preponderates in favor of the trial court’s
determination by clear and convincing evidence that Mother failed to substantially
comply with the reasonable requirements of the court-approved permanency plans.
C. Persistence of Conditions
The trial court also determined that the ground of persistence of the conditions
leading to the Child’s removal from Mother’s home had been proven by clear and
convincing evidence. Regarding this statutory ground, Tennessee Code Annotated § 36-
1-113(g)(3) provides:
(3) The child has been removed from the home of the parent or guardian
by order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely
returned to the parent or parents or the guardian or guardians
in the near future; and
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(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable and permanent home . . . .
A prior court order adjudicating the child to be dependent, neglected, or abused is
an essential requirement of a court’s termination of parental rights upon the ground of
persistence of conditions. See In re Audrey S., 182 S.W.3d at 874. As this Court
explained, the statutory ground of persistence of conditions “applies as a ground for
termination of parental rights only where the prior court order removing the child from
the parent’s home was based on a judicial finding of dependency, neglect, or abuse.” See
id. In the case at bar, the Child was removed from Mother’s custody in August 2015
after Mother was arrested for violating a no-contact order between Father and her. The
trial court subsequently entered an order in October 2015, finding the Child to be
dependent and neglected due to the parents’ incarceration. Regarding the statutory
ground of persistence of conditions, the trial court based its determination on Mother’s
failure to maintain stable housing, failure to maintain stable employment to provide for
the Child, and failure to address her mental health issues.
As previously noted, Mother had lived in approximately eight different residences
while the Child was in DCS custody and had failed to remain in one location for more
than four months until her most recent home. Regarding Mother’s most recent residence,
the landlord provided her with written notice of eviction in January and, through legal
proceedings, was awarded possession of the residence in February 2017 due to
nonpayment of rent. According to Mother, she remained in the residence at the time of
trial in March 2017. Although Mother was allowed to remain in the home after tendering
the unpaid rent, the trial court found that Mother had not maintained a stable home. The
trial court further found that Mother had changed employment approximately nine times
in the fourteen months prior to trial. Additionally, the trial court found that Mother had
missed all but five of her mental health therapy appointments, “leaving her domestic
violence and trauma issues unresolved and untreated.”
By reason of these circumstances, the trial court found by clear and convincing
evidence that Mother had not remedied the conditions that led to the Child’s removal
from her custody and that other conditions persisted that would, in all probability, cause
the Child to be subjected to further abuse and neglect. The trial court also found that
there was little likelihood that Mother would remedy these conditions at an early date and
that continuation of the legal parent-child relationship would greatly diminish the Child’s
chances of early integration into a stable and permanent home.
We recognize that Mother had made progress by beginning to address her alcohol
and drug issues and had passed two hair follicle drug screens prior to the termination
trial. However, Mother was still unable to provide a stable home for the Child, and she
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had failed to address her mental health concerns. Upon a thorough review of the record,
we conclude that the evidence does not preponderate against the trial court’s finding by
clear and convincing evidence that the conditions leading to removal still persisted and
that other conditions persisted that would in all probability cause the Child to be
subjected to further abuse and neglect. We therefore affirm this statutory ground for
termination of Mother’s parental rights.
D. Failure to Manifest an Ability and Willingness to Assume
Custody or Financial Responsibility of the Child
Mother asserts that DCS failed to provide clear and convincing evidence to
support termination of Mother’s parental rights pursuant to Tennessee Code Annotated §
36-1-113(g)(14) (2017). This subsection, which was added to the statutory framework
effective July 1, 2016, see 2016 Tenn. Pub. Acts, Ch. 919 § 20 (S.B. 1393), provides as
an additional ground for termination:
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.
Upon our careful review of the record, we determine that the trial court did not err in
finding that clear and convincing evidence existed to support this statutory ground for
termination of Mother’s parental rights.
This Court has recently explained the following with regard to this ground for
termination of parental rights:
Essentially, this ground requires DCS to prove two elements by clear and
convincing evidence. First, DCS must prove that [the parent] failed to
manifest “an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child[ren].” Tenn. Code
Ann. § 36-1-113(g)(14). DCS must then 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[ren].” Id.
***
We have made the following observations about what constitutes
“substantial harm”:
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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 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.
Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted).
In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7-8 (Tenn. Ct.
App. Apr. 4, 2018) (additional internal citations omitted). This Court has held that the
first prong of Tennessee Code Annotated § 36-1-113(g)(14) requires that the petitioner
prove that a parent has failed to meet the requirement of manifesting both a willingness
and an ability to assume legal and physical custody of the child or has failed to meet the
requirement of manifesting both a willingness and an ability to assume financial
responsibility of the child. In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL
3058280, at *14 (Tenn. Ct. App. June 20, 2018); but see In re Ayden S., No. M2017-
01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018) (reversing
this ground for termination when parents were unable but willing to assume custody and
financial responsibility of their children).
In the case at bar, the evidence demonstrated that Mother had failed to manifest a
willingness and ability to assume legal and physical custody of or financial responsibility
for the Child. The Child has remained in DCS custody since August 12, 2015. During
that time, Mother had failed to provide a stable home to which the Child could return.
The evidence further demonstrated that Mother had changed residences numerous times
throughout the case and was never able to maintain a residence for more than four
months without an interruption in rental payments. Mother’s landlord initiated court
proceedings against Mother due to nonpayment of rent and was granted possession of the
property on February 13, 2017. According to Mother’s testimony, she had paid toward
her arrearage payments, and the landlord had permitted her to remain in the home. The
judgment granting the landlord possession of the property was entered approximately one
month prior to the termination trial on March 24, 2017. Additionally, the trial court
found that Mother had not maintained stable employment to support the Child because
she held approximately nine different jobs during the time the Child was in DCS custody.
Furthermore, Mother had failed to address her mental health issues and had attended only
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five of her therapy appointments, leaving her domestic violence and trauma issues
unaddressed.
Based on the foregoing circumstances, the trial court found that Mother had failed
to manifest an ability and willingness to assume custody of or financial responsibility for
the Child. For those same reasons, the trial court also determined that placing the Child
in Mother’s custody would pose a risk of substantial harm to the physical and
psychological welfare of the Child. We note that the stability of Mother’s home is
relevant to the substantial harm analysis inasmuch as it demonstrates whether the Child
would be at risk of substantial harm if placed in that environment. See Blair v.
Badenhope, 77 S.W.3d 137, 157 (Tenn. 2002), superseded by statute on other grounds.
We conclude that the evidence does not preponderate against the trial court’s
findings by clear and convincing evidence that Mother failed to manifest an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the Child and that placing the Child in Mother’s legal and physical custody would pose a
risk of substantial harm to the physical or psychological welfare of the Child.
Accordingly, and considering our affirmance of the other three statutory grounds at issue,
we affirm the trial court’s findings regarding the existence of statutory grounds for
termination of parental rights.
V. Best Interest of the Child
Mother contends that DCS did not present sufficient evidence to support the trial
court’s finding by clear and convincing evidence that termination of Mother’s parental
rights was in the best interest of the Child. We disagree. When a parent has been found
to be unfit by establishment of at least one statutory ground for termination of parental
rights, as here, the interests of parent and child diverge, and the focus shifts to what is in
the child’s best interest. In re Audrey S., 182 S.W.3d at 877; see also In re Carrington
H., 483 S.W.3d at 523 (“‘The best interests analysis is separate from and subsequent to
the determination that there is clear and convincing evidence of grounds for
termination.’” (quoting In re Angela E., 303 S.W.3d 240, 254 (Tenn. 2010))). Tennessee
Code Annotated § 36-1-113(i) (2017) provides a list of factors the trial court is to
consider when determining if termination of parental rights is in a child’s best interest.
This list is not exhaustive, and the statute does not require the court to find the existence
of every factor before concluding that termination is in a child’s best interest. See In re
Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy
and weight to be given each factor depends on the unique facts of each case.”).
Furthermore, the best interest of a child must be determined from the child’s perspective
and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
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Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the
home, or whether there is such use of alcohol, controlled substances
or controlled substance analogues as may render the parent or
guardian consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for
the child; or
(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department
pursuant to § 36-5-101.
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As our Supreme Court recently explained regarding the best interest analysis:
“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 [240,] 254 [(Tenn. 2010)].
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
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
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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).
In this case, the trial court considered the statutory factors in concluding that those
factors weighed against maintaining Mother’s parental rights to the Child. Relevant to
Tennessee Code Annotated § 36-1-113(i)(1), the trial court found that Mother had failed
to make such an adjustment in her circumstances, conduct, or conditions that would make
it safe and in the Child’s best interest to be placed in her care. The Child was removed
from Mother’s custody due to the latter’s incarceration. During the fourteen months prior
to trial, Mother had not maintained a stable home to which the Child could return.
Mother had changed residences repeatedly throughout the dependency and neglect action
and had often stayed with friends and relatives for short periods of time. Ms. Dempsey
testified that individuals were present in Mother’s home during visits with the Child who
had not been preapproved to be present during the visits. Mother had failed to address
her mental health issues and had attended only five of her scheduled therapy
appointments with her mental health provider. Consequently, the trial court found that
Mother had failed to make it safe for the Child to return to her home. Although factor (2)
was not expressly included in the trial court’s judgment, the trial court also determined,
as relevant to factor (2), that DCS had made reasonable efforts to assist Mother in the
four months following the Child’s removal and that it appeared unlikely that Mother
would to be able to provide a suitable home for the Child at an early date, despite efforts
by DCS to assist Mother.
The trial court also did not specifically address factors (3) and (4) in its best
interest analysis. Regarding these factors, we note that Mother maintained visitation and
a relationship with the Child. Accordingly, Foster Mother testified that she believed it
was important to allow the parents to continue some involvement with the Child.
In its best interest analysis, the trial court appeared to focus significantly upon the
Child’s bond with the foster parents, who wished to adopt the Child. Pursuant to factor
(5), the trial court determined that the Child had developed a close relationship with the
foster family. Foster Mother is the Child’s biological aunt and has cared for the Child
during the entirety of time the Child has been in foster care, such care encompassing
approximately one-third of the Child’s life. The trial court recognized in its final
judgment that the Child depended on Foster Mother for her daily needs and that the Child
viewed the foster home as “her home.” The trial court also determined that a change of
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caretakers and a return of custody to the parents would disrupt the Child’s life and would
not be in the Child’s best interest.
Relevant to statutory factor (6), the trial court found that inasmuch as the Child
had been removed from Mother following her incarceration for violating a no-contact
order, the parents had abused and neglected the Child due to their criminal activity and
incarceration. As to factor (7), Foster Mother testified that Mother became hospitalized
due to an overdose in March 2016 on a day when Mother was to have enjoyed a visit with
the Child. Mother acknowledged that she had been taking Xanax at the time. According
to Mother, she accompanied friends to a “show” and had a “few drinks,” and her friends
had returned her home afterward. Mother claimed that she remembered her friends’
leaving her at home but that she subsequently awoke in the hospital. Following the
incident, Mother did pass two hair follicle drug screens prior to trial. However, noting
also that Mother had changed residences eight times in the fourteen months preceding
trial, the trial court determined that Mother’s home was unsafe and unhealthy for the
Child.
Although the trial court did not specifically address factor (8) concerning Mother’s
mental state, the trial court did determine that Mother had not complied with her mental
health therapy, “leaving her domestic violence and trauma issues unresolved and
untreated.” With respect to factor (9) and child support, Mother had been incarcerated on
two occasions due to civil contempt for failure to pay child support concerning her three
children, including the Child. However, the evidence reflected that Mother had paid
toward her arrearage balance prior to trial.
Based on our thorough review in light of the statutory factors, we conclude that
the evidence presented does not preponderate against the trial court’s determination by
clear and convincing evidence that termination of Mother’s parental rights was in the best
interest of the Child. Having also determined that statutory grounds for termination were
established, we affirm the trial court’s termination of Mother’s parental rights.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment in all respects,
including the termination of Mother’s parental rights to the Child. This case is remanded
to the trial court, pursuant to applicable law, for enforcement of the trial court’s judgment
terminating Mother’s parental rights and collection of costs assessed below. Costs on
appeal are assessed to the appellant, Bethany C.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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