In Re Josiah T.

10/02/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 1, 2019
IN RE JOSIAH T.
Appeal from the Juvenile Court for Knox County
No. 39481 Timothy E. Irwin, Judge
___________________________________
No. E2019-00043-COA-R3-PT
___________________________________
A mother appeals the termination of her parental rights to her child. Before trial, the
mother moved to dismiss the petition to terminate her parental rights for failure to join
the father of the child as a necessary party. The juvenile court denied the motion. And
after a trial, the court found six statutory grounds for termination and that termination of
the mother’s parental rights was in the child’s best interest. We discern no error in the
trial court’s denial of the motion to dismiss. But we conclude that the evidence was less
than clear and convincing as to one of the statutory grounds relied on by the trial court for
the termination of the mother’s parental rights. Still, the record contains clear and
convincing evidence to support the remaining five grounds for termination and that
termination is in the child’s best interest. So we affirm the termination of the mother’s
parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Anna East Corcoran, Knoxville, Tennessee, for the appellant, Jennifer T.
Herbert H. Slattery III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
A.
In 2014, Jennifer T. (“Mother”) gave birth to Josiah T. His birth certificate listed
no father. Josiah’s father was later identified as Jean A. (“Father”). When Josiah was
almost two years old, the Tennessee Department of Children’s Services (“DCS”) received
a report that Mother had given birth to a baby girl, Neveah, and had admitted to hospital
personnel that she abused suboxone while pregnant.
Mother was already known to DCS. Before Josiah’s birth, DCS had removed two
older children from Mother’s custody based on concerns about Mother’s substance abuse
and possible medical neglect. The older children had been in the temporary custody of
the maternal grandmother (“Grandmother”) since 2009.
Mother and Josiah lived with Neveah’s father, Robert D. After interviewing
Mother and Robert D., DCS petitioned the Juvenile Court of Knox County, Tennessee, to
declare Josiah and Neveah dependent and neglected. DCS also asked that Grandmother
be awarded temporary custody of the children. The court found probable cause to believe
the children were dependent and neglected and issued an immediate protective custody
order. The order awarded temporary physical custody to Grandmother and required that
any visitation by the parents be supervised.
Nine months later, DCS received a report of a domestic disturbance at the home
Mother shared with Robert D. Reportedly, when the maternal grandfather arrived to pick
up Josiah and Neveah from an unsupervised visit, Robert D. threatened him with a tire
iron. When interviewing Mother a few days later, the DCS case manager found Josiah
and Neveah in the care of Mother and Robert D. without supervision. During the
interview, Mother admitted that she abused drugs and lacked stable housing. Mother
tested positive that day for THC and suboxone.
Because Grandmother was not supervising visitation as ordered by the court, DCS
again petitioned to adjudicate Josiah and Neveah dependent and neglected. But this time
DCS sought physical custody. On April 25, 2017, Josiah and Neveah entered foster care.
Shortly thereafter, Mother’s older children, who were also in Grandmother’s custody,
entered foster care.
On May 22, 2017, DCS, with Mother’s participation, developed an initial
permanency plan with the twin goals of return to parent and exit custody with relative.
Mother tested positive that day for amphetamines, buprenorphine, and methamphetamine.
2
In addition to Mother’s obvious substance abuse issues, the plan addressed Mother’s
mental health, parenting skills, history of domestic violence, and lack of sufficient
resources to provide for the children.
Under the plan, Mother’s main responsibilities included:
 Resolving pending criminal charges and not incurring new charges;
 Passing random drug screens;
 Completing an alcohol and drug assessment and following all recommendations
from the assessment;
 Taking medication as prescribed;
 Complying with random pill counts;
 Visiting children regularly as scheduled;
 Paying child support;
 Completing a series of parenting classes;
 Completing a mental health assessment and following any recommendations from
the assessment;
 Addressing anger management and domestic violence issues through individual
therapy or classes;
 Obtaining and maintaining a legal source of income;
 Obtaining and maintaining safe and stable housing;
 Maintaining contact with DCS;
 Signing necessary releases; and
 Providing verification of the completion of her responsibilities.
DCS revised the plan twice, but Mother’s responsibilities remained the same.
Following a dependency and neglect hearing on July 21, 2017, the court found, by
clear and convincing evidence, that Mother had abused suboxone when she knew she was
pregnant with Neveah.1 By the same quantum of proof, the court found that Neveah was
a victim of severe abuse, as defined in Tennessee Code Annotated § 37-1-102(b)(22)(A)
(Supp. 2019). The court also adjudicated Mother’s four children dependent and
neglected based on, among other things, the severe abuse finding and Mother’s substance
abuse.
DCS referred Mother to the necessary service providers to schedule a dual
assessment, but she waited almost six months to complete the assessment. Then she
failed to follow the resulting recommendations. The service provider had recommended
that Mother enroll in medication management and an intensive outpatient program for
1
The court entered a final order reflecting its findings on December 8, 2017.
3
both substance abuse and mental health. Mother failed another drug screen after
completing the assessment. Although the plan required Mother to complete a second
assessment under such a circumstance, she did not.
At this point, Mother was unemployed and living off and on with various relatives.
In late February 2018, Mother belatedly enrolled in an intensive outpatient therapy
program. But she was discharged a few months later for poor attendance.
On March 30, the children began a trial home placement with Grandmother. But
the placement was suspended in May after DCS discovered that Grandmother was
allowing Mother unsupervised visitation with the children. DCS removed exit custody
with relative as a goal in the permanency plan. The new goals were return to parent or
adoption.
In June, fourteen months after the children entered foster care, Mother again
enrolled in the recommended drug and mental health treatment program. Despite failing
multiple drug screens in June and July, Mother completed the program on August 13,
2018. She also began working for a daily employment company and paying child
support. And she completed parenting classes.
Sadly, her sobriety was short lived. On September 5, she tested positive for THC,
amphetamines, and methamphetamines. She admitted to the DCS family services worker
that she had relapsed again. DCS assisted her with enrolling in another drug treatment
program at a halfway house. But Mother stayed only a few short weeks before she
withdrew, claiming that she would do better on her own.
B.
On September 19, 2018, DCS petitioned to terminate Mother’s parental rights to
three of her children, including Josiah.2 The petition alleged six grounds for termination:
abandonment by failure to support; abandonment by failure to provide a suitable home;
persistence of conditions; severe child abuse; substantial noncompliance with the
permanency plan; and failure to manifest an ability and willingness to parent. DCS filed
a separate petition to terminate Father’s parental rights to Josiah.3
Mother moved to dismiss the petition to terminate her parental rights and/or for a
continuance. Citing Tennessee Code Annotated § 36-1-117(a) (Supp. 2019), she argued
that both parents were necessary parties to the termination proceeding. And she
maintained that the petition should be dismissed under Tennessee Rule of Civil Procedure
2
One child had exited foster care in February and was living with the paternal grandmother.
3
Father established paternity in February 2018.
4
19.01. Alternatively, she sought additional time to complete her responsibilities in the
permanency plan.
The court denied the motion. Father’s parental rights were terminated on
December 4, 2018. The next day, the court conducted a trial on the petition to terminate
Mother’s parental rights. The only witnesses were the DCS family services worker
(“FSW”) and Mother.
The FSW related the circumstances that led to the children entering foster care and
described Mother’s lack of progress in fulfilling her responsibilities in the permanency
plans. She explained that Josiah and Neveah had been in the same foster home
throughout 2018 except for the trial home placement with Grandmother. The children
had bonded with the foster family. At the time of trial, Josiah had speech and behavioral
issues. The foster family was addressing his needs appropriately. And they were open to
adoption.
For her part, Mother acknowledged her extended struggle with substance abuse.
She began using drugs when she was thirteen. But she maintained that, despite her recent
relapse, she had finally turned her life around. After she left the halfway house, she
continued attending narcotics anonymous meetings, found a sponsor, and started working
through a 12-step recovery program. She explained that she currently attended support
meetings at various locations twice a week. And she passed her most recent drug screen
in October.
She had also enrolled in medication management. She was taking her medication
for depression and anxiety as prescribed. And she planned to schedule individual therapy
in the near future.
Her employment was through a daily work company. At the time of trial, she had
been working with the company off and on for five months. Her felony conviction made
it difficult to find more steady employment. She generally received work assignments
three to four days per week. Child support payments were being withheld from her
paycheck. As for housing, she had been living with her aunt off and on for the previous
six months.
Mother visited her children regularly. She only missed three visits in 22 months
mainly due to transportation issues. She relied on relatives for her transportation. Her
driver’s license had been revoked ten years ago for unpaid tickets, and she had never
pursued reinstatement. She described her close bond with her children. According to
Mother, “my children are my purpose in life.”
The juvenile court found that DCS had proven by clear and convincing evidence
all alleged grounds for termination of Mother’s parental rights to Josiah. The court
5
further found clear and convincing evidence that termination of Mother’s parental rights
was in Josiah’s best interest. The court postponed decision on Mother’s parental rights to
the other two children.
II.
Before addressing the issues raised by Mother for review, we must first determine
whether this Court has jurisdiction over this appeal. The subject matter jurisdiction
inquiry for appellate courts begins with a determination of if and when a final judgment
was entered. Under Tennessee Rule of Appellate Procedure 3(a), an appeal “as of right”
only lies from a final judgment. Tenn. R. App. P. 3(a); In re Estate of Henderson, 121
S.W.3d 643, 645 (Tenn. 2003). Generally, a final judgment is a judgment “that resolves
all of the parties’ claims and leaves the court with nothing to adjudicate.” Ball v.
McDowell, 288 S.W.3d 833, 836-37 (Tenn. 2009). Here, the juvenile court “reserved its
ruling regarding whether it [wa]s in [two of] the children’s best interest to terminate the
parental rights of [Mother].” Thus, the judgment Mother appealed was not final.
Under Tennessee Rule of Civil Procedure 54.02, the trial court may direct the
entry of a final judgment “as to one or more but fewer than all of the claims or parties.”
But a court may do so “only upon an express determination that there is no just reason for
delay and upon an express direction for the entry of judgment.” Tenn. R. Civ. P. 54.02.
The juvenile court’s judgment provided that it “constitute[d] a final judgement as to the
claims set out above as to [Mother] regarding [Josiah T.], and is immediately appealable
as of right to the Court of Appeals pursuant to Tenn. R. App. 3(a).” While the language
contained in the judgment might satisfy the Rule 54.02 requirement of “an express
direction for the entry of judgment,” the judgment lacks a finding that “there [wa]s no
just reason for delay.” Such a finding is “an absolute prerequisite” to an appeal. Fox v.
Fox, 657 S.W.2d 747, 749 (Tenn. 1983); see also Duffer v. Lawson, No. M2009-01057-
COA-R3-CV, 2010 WL 3488620, at *5 (Tenn. Ct. App. Sept. 3, 2010) (holding that an
order omitting “magic language” under Rule 54.02 “is not a final and appealable
judgment”). Absent the finding, “the order is interlocutory and can be revised at any time
before the entry of judgment adjudicating all the claims and rights and liabilities of all
parties.”4 Fox, 657 S.W.2d at 749.
Still we find it appropriate to exercise jurisdiction in this case despite the lack of
the requisite finding by the juvenile court. We are permitted to suspend Tennessee Rule
of Appellate Procedure 3(a) for “good cause.” Tenn. R. App. P. 2; Bayberry Assocs. v.
Jones, 783 S.W.2d 553, 559 (Tenn. 1990). We find good cause to do so in this instance
4
The trial court’s authority under Tennessee Rule of Civil Procedure 54.02 “is not absolute.”
Crane v. Sullivan, No. 01A01-9207-CH-00287, 1993 WL 15154, at *1 (Tenn. Ct. App. Jan. 27, 1993).
We do not reach the issue of whether certification under Rule 54.02 would have been appropriate under
the facts of this case.
6
because of the grave nature of the proceedings and the importance that the parental
termination statutes place on expeditious resolution of these matters. Trial courts must
ensure that hearings on petitions to terminate take place “within six (6) months of the
date that the petition is filed, unless the court determines an extension is in the best
interest of the child.” Tenn. Code Ann. § 36-1-113(k) (Supp. 2019). And both the trial
court and we are required to expedite and give termination of parental rights cases
priority. Id. § 36-1-124(a), (b) (2017). Our General Assembly has expressed its intent
“that the permanency of the placement of a child who is the subject of a termination of
parental rights proceeding or an adoption proceeding not be delayed any longer than is
absolutely necessary consistent with the rights of all parties.” Id. § 36-1-124(c). Given
both the consequences of terminating parental rights and the importance placed on
permanency for the child, we see no just reason to delay this matter further.
III.
On appeal, Mother raises three issues for our review. The first two relate to the
juvenile court’s denial of her motion to dismiss the case because DCS did not name
Father as a party. Under Tennessee Rule of Civil Procedure 12.02(7), a party can raise as
a defense the “failure to join a party under [Tennessee] Rule [of Civil Procedure] 19.”
Tenn. R. Civ. Proc. 12.02(7). Taken together, Rules 12 and 19 permit a party to seek
dismissal of a case if an “indispensable” person cannot be made a party to the litigation.
See id. & 19.02. Rule 19 in particular “is designed to protect the interests of absent
persons as well as those already before the court from multiple litigation and inconsistent
judicial determinations.” Citizens Real Estate & Loan Co. v. Mountain States Dev.
Corp., 633 S.W.2d 763, 766 (Tenn. Ct. App. 1981). We review a decision on a motion to
dismiss for failure to join an indispensable party for an abuse of discretion. McNabb v.
Highways, Inc., 98 S.W.3d 649, 651-52 (Tenn. 2003).
Few Tennessee cases have addressed dismissal under Tennessee Rule of Civil
Procedure 12.02(7). In interpreting the Tennessee Rules of Civil Procedure, “we consult
and are guided by the interpretation that has been applied to comparable federal rules of
procedure.” Turner v. Turner, 473 S.W.3d 257, 268 (Tenn. 2015). Under the federal
rules, a motion to dismiss for failure to join a party requires a three-part inquiry.
E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774, 779 (9th Cir. 2005). Despite the
differences between our rule and the federal rule governing joinder, a three-part inquiry is
also appropriate under Tennessee Rule of Civil Procedure 12.02(7). First, the court must
determine whether the nonparty falls within a category of persons described in Rule
19.01 that “shall be joined as a party.” Tenn. R. Civ. P. 19.01; see also Peabody W. Coal
Co., 400 F.3d at 779 (describing first step of the three-party inquiry). Second, if the
nonparty should be joined under Rule 19.01, the court must determine whether joinder is
feasible. Peabody W. Coal Co., 400 F.3d at 779. Joinder is not feasible if the nonparty is
not subject to the court’s personal jurisdiction. See Tenn. R. Civ. P. 19.01 (“A person
who is subject to service of process shall be joined as a party . . . .”). Third and “[f]inally,
7
if joinder is not feasible, the court must determine . . . whether the case can proceed
without the absentee, or whether the absentee is an ‘indispensable party’ such that the
action must be dismissed.” Peabody W. Coal Co., 400 F.3d at 779. Rule 19.02 provides
factors to be considered in making the determination of whether a nonparty is
indispensable. Tenn. R. Civ. P. 19.02.
The first inquiry requires a review of the text of Rule 19.01. Rule 19.01 describes
two categories of persons that shall be joined. The first category is a person whose
absence would preclude the court from granting “complete relief . . . among those
already parties.” Id. 19.01. The second type is a person claiming “an interest relating to
the subject of the action” whose “absence may (i) as a practical matter impair or impede
the person’s ability to protect that interest, or (ii) leave any of the persons already parties
subject to a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reasons of the claimed interest.” Id. The party moving to dismiss bears
the burden of showing that there is a nonparty that falls within one or both of the
categories. See Disabled in Action of Penn. v. Se. Penn. Transp. Auth., 635 F.3d 87, 97
(3d Cir. 2011).
According to Mother, Father falls within both categories described in Rule 19.01.
Mother claims that, without Father, the court could not grant complete relief, relying on
Tennessee Code Annotated § 36-1-117(a). Mother reads the statute as requiring that,
unless parental rights have previously been surrendered or terminated, the biological
mother and the established father of a child must be made parties to the same termination
proceeding. Mother’s argument, however, is founded on a misreading of the statute.
Tennessee Code Annotated § 36-1-117(a) is part of our adoption statutes. See
Tenn. Code Ann. § 36-1-101(a) (2017) (providing that the primary purpose of this part of
the Tennessee Code “is to provide means and procedures for the adoption of children and
adults”). Subpart (a) of the section specifies who must be made parties to an adoption
proceeding. Unless a parent or guardian has surrendered their rights to the child or they
have consented to the adoption or they have waived their rights to the child or their rights
have been terminated,
the legal parents, guardian of the person of the child or of an adult, the
biological mother, and the established father or putative father of the child
must be made parties to the adoption proceeding or to a separate proceeding
seeking the termination of those rights, and their rights to the child must be
terminated by a court to authorize the court to order the adoption of the
child or adult by other persons.
Id. § 36-1-117(a). In other words, a child cannot be adopted unless the rights of all
parents and guardians have been surrendered, waived, or terminated or they have
consented to the adoption. See In re Shelby L.B., No. M2010-00879-COA-R9-PT, 2011
8
WL 1225567, at *6 (Tenn. Ct. App. Mar. 31, 2011) (“It is axiomatic that an adoption
cannot occur as long as the parental rights of the legal or biological parent(s) still exist
and are in effect.”). We have previously held that an adoption petition is subject to
dismissal if the petition does not seek to terminate all existing parental rights to the child.
See In re Francis P., 532 S.W.3d 356, 366 (Tenn. Ct. App. 2017) (holding that the trial
court properly dismissed petition to terminate and/or adopt child when petition only
sought to terminate father’s parental rights, not mother’s rights).
Tennessee Code Annotated § 36-1-117(a) has no application in this case.
Although the end goal is adoption of Josiah, the only remedy sought by DCS was the
termination of Mother’s parental rights. 5 DCS could be afforded complete relief without
Father’s participation. See In re M.L.P., 281 S.W.3d 387, 391-92 (Tenn. 2009) (holding
that Tennessee Code Annotated § 36-1-117(a) only requires “the legal guardians of a
child [to] be joined as parties when their rights to the child are being terminated”).
Next, Mother argues that Father must be joined under Rule 19.01 because he was
unable to protect his interest in this litigation without being joined as a party. We
disagree. Father’s parental rights were terminated before this trial. He had no interest to
protect. See Tenn. Code Ann. § 36-1-113(l)(1) (“An order terminating parental rights
shall have the effect of severing forever all legal rights and obligations . . . .”); see also
Shell v. Law, 935 S.W.2d 402, 410 (Tenn. Ct. App. 1996) (holding legal father whose
parental rights had been terminated had no interest in outcome of paternity action against
biological father). But even if Father’s parental rights had not been terminated, this
proceeding only concerned Mother’s parental rights. Father’s parental rights could not
have been affected. Mother’s concern that one parent might be adversely affected by the
proof offered for or against the other parent is also unfounded. Because Father was not a
party or in privity with a party in Mother’s case, the determination of a particular issue of
law or fact in Mother’s case would not be preclusive as to Father. See In re
Bridgestone/Firestone, 495 S.W.3d 257, 267 (Tenn. Ct. App. 2015).
Because Mother failed to show that Father had to be joined under Tennessee Rule
of Civil Procedure 19.01, we do not reach the second and third parts of the inquiry. The
court properly denied Mother’s motion to dismiss.
5
We note that the statute governing termination specifies that “any person or persons entitled to
notice pursuant to § 36-1-117 shall be named as defendants in the petition to terminate parental rights or
in the adoption petition and shall be served with a copy of the petition as provided by law.” See Tenn.
Code Ann. § 36-1-113(d)(3)(B). Tennessee Code Annotated § 36-1-117 requires that notice be given to
“[a]ny public or private agency that may have custody or complete or partial guardianship of the child.”
Id. § 36-1-117(e).
9
IV.
For her final issue, Mother contends that the proof offered by DCS was
insufficient to terminate her parental rights. Tennessee Code Annotated § 36-1-113 sets
forth both the grounds and procedures for terminating parental rights. In re Kaliyah S.,
455 S.W.3d 533, 546 (Tenn. 2015). Parties seeking termination of parental rights must
first prove the existence of at least one of the statutory grounds for termination listed in
Tennessee Code Annotated § 36-1-113(g). Tenn. Code Ann. § 36-1-113(c)(1). If one or
more statutory grounds for termination are shown, they then must prove that terminating
parental rights is in the child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c)). This heightened burden
of proof serves “to minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights.” Id. “Clear and convincing
evidence” leaves “no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992). It produces a firm belief or conviction in the fact-finder’s mind regarding the truth
of the facts sought to be established. In re Bernard T., 319 S.W.3d at 596.
We review the trial court’s findings of fact “de novo on the record, with a
presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de
novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct.
App. 2007).
A. GROUNDS FOR TERMINATION
Mother does not challenge the grounds for termination of parental rights relied on
by the court. Nonetheless, we must “review the trial court’s findings as to each ground
for termination . . . regardless of whether the parent challenges these findings on appeal.”
In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016).
1. Abandonment
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). Among other things, “abandonment”
10
includes the failure “to support or . . . make reasonable payments toward the support of
the child” during the four months immediately preceding the filing of the petition to
terminate parental rights. Id. § 36-1-102(1)(A)(i) (Supp. 2019). Here, because the
petition was filed on September 19, 2018, the relevant four-month period is June 19,
2018, to September 18, 2018, the day before the petition was filed. See In re Jacob C.H.,
No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014)
(concluding that the day before the petition is filed is the last day in the relevant four-
month period). A parent has abandoned a child under this statutory definition if the
parent has failed “to provide more than token payments toward the support of the child”
during the relevant time period. Tenn. Code Ann. § 36-1-102(1)(D).
a. Failure to Support
Mother was ordered to pay $40 per month in child support for each child. During
the relevant time period, she paid a total of $45 in child support for Josiah, an amount the
trial court found to be merely token. Support payments are token if “the support, under
the circumstances of the individual case, is insignificant given the parent’s means.” Id.
§ 36-1-102(1)(B). A parent’s means includes “both income and available resources for
the payment of debt.” In re Adoption of Angela E., 402 S.W.3d 636, 641 (Tenn. 2013).
Mother began working approximately six or seven weeks before the termination
petition was filed. She testified that on average she worked three or four days per week
and, after withholding, brought home $30 per day. At best, she earned $840 during the
four months before the petition was filed. Her household budget shows monthly
expenses of $120. She also paid an additional $90 toward the support of Josiah’s half-
siblings during this four-month period.
Based on this evidence, we cannot say that Mother’s payments toward Josiah’s
support during the relevant period were insignificant given her means. The burden fell
on DCS to prove that Mother’s payments were “token support” within the meaning of the
statute.6 In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Tenn. Code Ann. § 36-1-
102(1)(A)(i), (D). We conclude that DCS failed to meet this burden by clear and
convincing evidence.
b. Failure to Provide a Suitable Home
Abandonment also includes failure to establish a suitable home for the child.
Tenn. Code Ann. § 36-1-102(1)(A)(ii). When the petition was filed, this definition of
abandonment provided a ground for the termination of parental rights when:
6
Although related, the concept of “token support” is distinct from the concept of “willfulness” in
failing to support. The parent bears the burden of proving that a failure to support was not willful. Tenn.
Code Ann. § 36-1-102(1)(I).
11
(a) The child has been removed from the home or the physical or legal
custody of a parent . . . by a court order at any stage of proceedings in
which a petition has been filed in the juvenile court alleging that a child is a
dependent and neglected child, and the child was placed in the custody of
[DCS];
(b) The juvenile court found . . . that [DCS] 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
(c) For a period of four (4) months following the physical removal, [DCS]
made reasonable efforts to assist the parent . . . to establish a suitable home
for the child, but that the parent . . . ha[s] not made reciprocal reasonable
efforts to provide a suitable home and ha[s] demonstrated a lack of concern
for the child to such a degree that it appears unlikely that the [parent] will
be able to provide a suitable home for the child at an early date.
Id.
“A suitable home ‘requires more than a proper physical living location.’” In re
Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App. 2016) (quoting In re Hannah H., No.
E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014)). A
suitable home requires “[a]ppropriate care and attention . . . to the child.” In re Matthew
T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20,
2016). The home must also “be free of drugs and domestic violence.” In re Hannah H.,
2014 WL 2587397, at *9.
Here, Josiah was removed from Mother’s custody and placed in the custody of
DCS on April 25, 2017. The juvenile court found that DCS made reasonable efforts to
prevent the removal, and we agree.
While this record contains scant evidence of DCS’s efforts to assist Mother in
establishing a suitable home during the relevant four month period, DCS’s efforts clearly
equaled or exceeded Mother’s efforts. See Tenn. Code Ann. § 36-1-102(1)(A)(ii)(c)
(“The efforts of the department or agency to assist a parent or guardian in establishing a
suitable home for the child shall be found to be reasonable if such efforts equal or 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[.]”). DCS developed a
permanency plan, referred Mother to the necessary services providers, facilitated
visitation with the children, and administered random drug screens. But Mother took
little or no action for six months.
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Even at trial, Mother was unable to provide a suitable home for Josiah. She was
living with various relatives. She had only been drug free less than three months, and her
support system was weak. She was not participating in the recommended individual
therapy for anger management and domestic violence. Mother’s lack of progress
throughout this case demonstrates such a lack of concern for her child that it appears
unlikely that she will be able to provide a suitable home for Josiah at an early date.
All the elements of the second statutory definition of abandonment were satisfied
by clear and convincing evidence. So the trial court correctly concluded that termination
of Mother’s parental rights on the ground of abandonment for failure to provide a suitable
home was warranted.
2. Substantial Noncompliance
The juvenile court also found Mother was not in substantial compliance with the
requirements of the permanency plan. See Tenn. Code Ann. § 36-1-113(g)(2). Before
analyzing whether a parent complied with the permanency plan, the court must find that
the permanency plan requirements were “reasonable and are related to remedying the
conditions that necessitate foster care placement.” Id. § 37-2-403(a)(2)(C) (2014).
Permanency plan requirements may focus on remedying “conditions related both to the
child’s removal and to family reunification.” In re Valentine, 79 S.W.3d 539, 547 (Tenn.
2002).
We agree with the trial court’s finding that the permanency plan requirements
developed for Mother and Josiah were reasonable and related to remedying the conditions
that prevent reunification of this family. Next, we must determine whether Mother’s
noncompliance was substantial in light of the importance of the requirements to the
overall plan. See id. at 548-49. “Substantial noncompliance is a question of law which
we review de novo with no presumption of correctness.” Id. at 548. 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).
Our focus is on the parent’s efforts to comply with the plan, not the achievement of the
plan’s desired outcomes. In re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922,
at *8 (Tenn. Ct. App. Mar. 2, 2009). We review the court’s findings of fact concerning
compliance with the requirements of the permanency plan de novo with a presumption of
correctness. See In re Valentine, 79 S.W.3d at 547.
The evidence is clear and convincing that Mother failed to substantially comply
with the requirements of the permanency plans. Mother waited six months to start
working on her responsibilities and made very little progress until August 2018. In
August, Mother finally completed both parenting classes and an inpatient treatment
program and found at least temporary employment. But she quickly relapsed, thus
triggering the requirement to obtain another alcohol and drug assessment. She never
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completed a second assessment. And she withdrew from the drug treatment program at
the halfway house, opting instead to attend meetings twice a week. Mother has never
addressed her anger management or domestic violence issues. And she remains
homeless.
Certainly, parents with drug addictions can “have false starts and set backs, as well
as successes and, regrettably, backsliding,” and we should take that into account. In re
M.J.M., Jr., No. M2004-02377-COA-R3-PT, 2005 WL 873302, at *11 (Tenn. Ct. App.
Apr. 14, 2005). But “a permanency plan is not simply a list of tasks with boxes to be
checked off before custody is automatically restored.” In re V.L.J., No. E2013-02815-
COA-R3-PT, 2014 WL 7418250, at *8 (Tenn. Ct. App. Dec. 30, 2014). The plan “is an
outline for doing the things that are necessary to achieve the goal of permanency in
children’s lives.” Id. Substantial compliance requires parents to “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.” Id. Mother’s
efforts fell short.
3. Persistence of Conditions
The juvenile court also found termination of Mother’s parental rights appropriate
under Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly referred to as
“persistence of conditions.” See In re Audrey S., 182 S.W.3d 838, 871 (Tenn. Ct. App.
2005). This ground for termination focuses “on the results of the parent’s efforts at
improvement rather than the mere fact that he or she had made them.” Id. at 874. The
goal is to avoid having a child in foster care for a time longer than reasonable for the
parent to demonstrate the ability to provide a safe and caring environment for the child.
In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other
grounds, In re Kaliyah S., 455 S.W.3d 533. So the question before the court is “the
likelihood that the child can be safely returned to the custody of the [parent], not whether
the child can safely remain in foster care . . . .” In re K.A.H., No. M1999-02079-COA-
R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000).
There are several elements to the ground of persistence of conditions. When the
termination petition was filed, the ground applied as a basis to terminate parental rights
when:
The child has been removed from the home or the physical or legal
custody of a parent . . . for a period of six (6) months by a court order
entered at any stage of proceedings in which a petition has been filed in the
juvenile court alleging that a child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent . . ., or other
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conditions exist that, in all reasonable probability, would cause the child to
be subjected to further abuse or neglect, preventing the child’s safe return to
the care of the parent . . .;
(ii) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent . . . in the
near future; and
(iii) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3). Each of the statutory elements must be established
by clear and convincing evidence. In re Valentine, 79 S.W.3d at 550.
At the time of trial, Josiah had been removed from Mother’s custody for more than
six months. See Tenn. Code Ann. § 36-1-113(g)(3)(B) (“The six (6) months must accrue
on or before the first date the termination of parental rights petition is set to be heard.”).
And this record contains clear and convincing evidence that conditions preventing
Josiah’s safe return to Mother remained. Mother was homeless. She relapsed as recently
as September 5. She had yet to address her issues with anger management or domestic
violence.
We further conclude that the evidence was clear and convincing that there was
little likelihood that these conditions would be remedied in the near future. Despite her
optimism, Mother’s recent relapse and lack of progress on other issues makes
reunification in the near future unlikely.
We also have little difficulty in concluding that continuation of the parent and
child relationship greatly diminishes Josiah’s chances of early integration into a safe,
stable, and permanent home. At the time of trial, Josiah had been in foster care for 20
months. He had bonded with his foster family, who provided a safe and stable home.
Mother, on the other hand, remains unable to offer either.
4. Severe Child Abuse
The juvenile court found DCS had proven severe child abuse as a ground for
termination. Under Tennessee Code Annotated § 36-1-113(g)(4), it is a ground for
termination if “[t]he parent . . . has been found to have committed severe child abuse as
defined in § 37-1-102, under any prior order of a court or is found by the court . . . to
have committed severe child abuse against any child.” Tenn. Code Ann. § 36-1-
113(g)(4). As this Court has previously explained, “under this provision in the
termination statutes, once the finding of severe child abuse in the dependency and neglect
proceedings becomes final, ‘[t]he ground itself is proved by [the] prior court order
finding severe child abuse, and the issue of whether abuse occurred is not re-litigated at
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the termination hearing.’” In re J.C.H., No. W2012-01287-COA-R3-PT, 2012 WL
6466631, at *10 (Tenn. Ct. App. Dec. 14, 2012) (quoting Tenn. Dep’t of Children’s
Servs. v. M.S., No M2003-01670-COA-R3-CV, 2005 WL 549141, at 10 (Tenn. Ct. App.
Mar. 8, 2005)); see also In re Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App. 2010)
(holding the issue of whether a mother committed severe child abuse was res judicata
where the issue was fully litigated in a previous dependency and neglect action).
The record reflects that, on December 8, 2017, the juvenile court entered a final
order finding by clear and convincing evidence that Mother had committed severe child
abuse against her daughter Neveah, as defined in Tennessee Code Annotated § 37-1-102.
In the same order, the juvenile court adjudicated Josiah dependent and neglected, in part,
based on the severe child abuse finding. The juvenile court’s order was not appealed, and
thus, grounds for termination exist based on severe abuse.
5. Failure to Manifest an Ability and Willingness to Assume Custody or Financial
Responsibility for the Child
Finally, the court found termination of parental rights appropriate under Tennessee
Code Annotated § 36-1-113(g)(14). Under this ground, a parent’s rights may be
terminated if he or she
[1] 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 [2] placing the child in the person’s legal and physical
custody would pose a risk of substantial harm to the physical or
psychological welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). Both prongs must be established by clear and
convincing evidence. See In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL
1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019).
We conclude that terminating Mother’s parental rights on the ground of failure to
manifest an ability and willingness to assume legal and physical custody was appropriate.
Mother did not exhibit an ability and willingness to personally assume legal and physical
custody or financial responsibility for Josiah. Mother had recently suffered another
relapse. Her anger management and domestic violence issues remained unaddressed.
She was homeless with minimal income. Her recent efforts notwithstanding, Mother
remained unable to care for Josiah even at the time of trial.
The evidence is equally clear and convincing that returning Josiah to Mother’s
custody would pose a risk of substantial harm to his physical or psychological welfare.
Mother has no home to offer Josiah. And the risk of another relapse is significant. Her
only support system is attending Narcotics Anonymous meetings in various locations,
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depending on whether she can find transportation. She is not engaged in individual
therapy. And her announced intention to sign up for therapy in the near future is
insufficient to remove the very real risk of substantial harm to Josiah.
B. BEST INTEREST
Because “[n]ot all parental misconduct is irredeemable,” our parental termination
“statutes recognize the possibility that terminating an unfit parent’s parental rights is not
always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.
2005). So even if a statutory ground for termination is established by clear and
convincing evidence, we must also determine whether termination of parental rights is in
the child’s best interests. Tennessee Code Annotated § 36-1-113(i) lists nine factors that
courts must consider in making a best interest analysis. The “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 Gabriella D., 531 S.W.3d 662, 681
(Tenn. 2017). In reaching a decision, “the court must consider all of the statutory factors,
as well as any other relevant proof any party offers.” Id. at 682. The best interest
analysis is a fact-intensive inquiry, and each case is unique. White v. Moody, 171 S.W.3d
187, 193-94 (Tenn. Ct. App. 2004).
The focus of this analysis is on what is best for the child, not what is best for the
parent. In re Marr, 194 S.W.3d at 499. Additionally, the analysis should take into
account “the impact on the child of a decision that has the legal effect of reducing the
parent to the role of a complete stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). Although “[f]acts relevant to a
child’s best interests need only be established by a preponderance of the evidence, . . . the
combined weight of the proven facts [must] amount[] to clear and convincing evidence
that termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d at 535.
After considering all the statutory factors, the juvenile court determined that
termination of parental rights was in Josiah’s best interest. The court emphasized
Mother’s lack of a lasting adjustment, the detrimental effect of a change in caretakers, the
severe abuse finding, Mother’s inability to provide a safe home, Mother’s mental and
emotional status, and her failure to pay the required amount of child support. Mother
contends the court failed to give proper weight to her relationship with Josiah and her
recent sobriety.
The first two statutory factors look at the parent’s current lifestyle and living
conditions. The first factor focuses on whether the parent “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 [parent’s] home.” Tenn. Code Ann. § 36-1-113(i)(1). The second factor
considers the potential for lasting change. See id. § 36-1-113(i)(2) (asking “[w]hether the
parent . . . has failed to effect a lasting adjustment after reasonable efforts by available
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social services agencies for such duration of time that lasting adjustment does not
reasonably appear possible”). We agree that Mother has made an adjustment; the
question is whether the change will last. The trial court found Mother had never been
able to maintain her sobriety “for any consistent period of time.” The evidence does not
preponderate against this finding. Mother relapsed within one month of completing an
intensive outpatient drug treatment program. Given her history, we cannot discount the
very real possibility that she will relapse again.
The third and fourth factors focus on the parent’s relationship with the child. The
third factor focuses on the consistency of visitation. See id. § 36-1-113(i)(3). The fourth
factor considers “[w]hether a meaningful relationship has otherwise been established
between the parent . . . and the child.” Id. § 36-1-113(i)(4). The court found Mother had
maintained regular visitation and had a relationship with her son. These factors weigh
against termination.
The court assigned more weight to the fifth factor, which evaluates the effect a
change in caregivers would have on the child’s emotional, psychological, and medical
condition. Id. § 36-1-113(i)(5). Despite the relationship between Mother and Josiah, the
trial court found a change in caregivers would be detrimental. The evidence does not
preponderate against this finding. Josiah was removed from Mother’s custody when he
was less than two years old. At the time of trial, he had lived with the same foster family
for a year. He had bonded with the family, who had provided the only safe and stable
home he had ever known. The family has been diligent in addressing his needs, and they
are open to adoption. This factor favors termination.
Under the sixth factor, the court determines whether the parent or another person
residing with the parent “has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child” or another person in the home. Id.
§ 36-1-113(i)(6). This factor also favors termination. Mother committed severe child
abuse against Josiah’s half-sibling.
The seventh factor focuses on the parent’s home environment and ability to be a
safe and stable caregiver. See id. § 36-1-113(i)(7) (“Whether the physical environment of
the parent’s . . . home is healthy and safe, whether there is criminal activity in the home,
or whether there is such use of [intoxicants] as may render the parent . . . consistently
unable to care for the child in a safe and stable manner.”). Mother is homeless. And as
recently as September 5, Mother tested positive for THC, amphetamines, and
methamphetamines. It is simply too soon to tell whether Mother has successfully
overcome her substance abuse issues such that she can be a safe and stable caregiver.
The eighth statutory factor evaluates the parent’s mental and emotional health,
asking “[w]hether the parent’s . . . mental and/or emotional status would be detrimental to
the child or prevent the parent . . . from effectively providing safe and stable care and
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supervision for the child.” Id. § 36-1-113(i)(8). Mother suffers from anxiety and
depression. She has only recently begun taking medication for her mental health issues.
And she has yet to enroll in individual therapy. Whether she can effectively provide safe
and stable care for Josiah is questionable.
The ninth factor looks at the parent’s child support history. See id. § 36-1-
113(i)(9). Mother’s record of support also weighs in favor of terminating parent rights.
We conclude that DCS proved, by clear and convincing evidence, that termination
of parental rights was in Josiah’s best interest. Although some factors were in Mother’s
favor, the combined weight of the proven facts amount to clear and convincing evidence
that termination of Mother’s parental rights is in Josiah’s best interest.
V.
The trial court did not err in denying the motion to dismiss the petition to
terminate Mother’s parental rights for failure to join Father under Tennessee Rule of
Civil Procedure 19. Father was not a necessary party to this proceeding.
Upon our review of the record, we vacate the juvenile court’s finding of
abandonment by failure to support. Still, the record contains clear and convincing
evidence to support terminating Mother’s parental rights on the remaining grounds. The
record also contains clear and convincing evidence that termination is in the child’s best
interest. Thus, we affirm the judgment terminating Mother’s parental rights.
_________________________________
W. NEAL MCBRAYER, JUDGE
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