In Re Brilee E.

04/20/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 2, 2021
IN RE BRILEE E. ET AL.
Appeal from the Circuit Court for Montgomery County
No. CC-19-CV-1982 Kathryn Wall Olita, Judge
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No. M2020-00527-COA-R3-JV
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Two children were removed from their grandmother’s custody and subsequently
adjudicated dependent and neglected. The grandmother appeals the trial court’s denial of
her petition for custody of the children, asserting that granting her custody is in the
children’s best interest. We affirm the trial court’s judgment as to one child and dismiss
the appeal as moot as to the other.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part; Appeal Dismissed in Part; Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and CARMA DENNIS MCGEE, J., joined.
Travis N. Meeks, Clarksville, Tennessee, for the appellant, Melissa E.
Herbert H. Slatery III, Attorney General and Reporter, and Lexie A. Ward, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
Factual and Procedural Background
Brilee, born in December 2011, and her brother, Brayden, born in October 2013, are
the grandchildren of Melissa E. (“Grandmother”).1 The children began living with
Grandmother in October 2013. They do not share the same father, and the record has no
information concerning the children’s interaction, if any, with their respective fathers. In
July 2014, Grandmother was granted legal custody of the children.
1
In cases involving custody of minors, it is this Court’s policy to remove the full names of children
and other parties to protect their identities.
In September 2017, the Tennessee Department of Children’s Services (“DCS”) filed
a verified petition to adjudicate the children dependent and neglected and for temporary
custody in the Montgomery County Juvenile Court (“the juvenile court”). The petition
followed an August 2017 referral alleging illegal drug use and trafficking at Grandmother’s
home, as well as concerns for Brilee’s safety due to unknown males “in and out of the
home.” According to the petition, Grandmother refused to take a drug screen during each
of two unannounced home visits conducted by DCS in response to the referral. DCS then
secured an investigative order and conducted a third unannounced home visit, during which
an unidentified female, Brayden, Grandmother, and her paramour Bobby E. were present.
Illegal drugs and drug paraphernalia were found throughout the home and within easy
access to the children. After the visit, Grandmother consented to a search of the home by
the Montgomery County Drug Task Force, which uncovered additional illegal drugs.
Grandmother consented to a drug screen and tested positive for amphetamines,
methamphetamines, oxycodone, and THC.2 Bobby E. tested positive for
methamphetamines and THC. On September 19, 2017, the juvenile court entered a
protective custody order placing the children in the temporary legal custody of DCS,
having found probable cause that they were dependent and neglected under Tennessee
Code Annotated section 37-1-102(b) and that it was against their “welfare to remain in the
home for the reasons set out in the petition.”
In December 2018, Grandmother filed a petition for legal custody or visitation of
the children in the juvenile court. The petition was heard on January 15, 2019, but no
transcript of the hearing appears in the record. In May 2019, the juvenile court entered an
order denying Grandmother’s petition based on her “ongoing drug problem and her failure
to prove that there has been a material change in her circumstances.” Specifically, the
juvenile court noted that at the time the children were removed from her custody in
September 2017, Grandmother tested positive for methamphetamines, oxycodone, and
THC; that the children were adjudicated dependent and neglected in March 2018,3 due, in
part, to Grandmother’s drug use; that an October 2017 permanency plan required her to
successfully complete an alcohol and drug program to address her substance abuse issues;
that as late as July 2018, Grandmother was failing drug screens; and that after falling asleep
during a session, she was “kicked out of her drug program.” The juvenile court also
dismissed Grandmother as a party to the case.
Grandmother erroneously appealed the juvenile court’s denial of her petition for
custody to this Court. We transferred the appeal to the Montgomery County Circuit Court
2
“THC is a marijuana metabolite that is stored in fat cells and can be detected in the body up to
thirty days after smoking marijuana.” Interstate Mech. Contractors, Inc. v. McIntosh, 229 S.W.3d 674, 677
(Tenn. 2007).
3
The order adjudicating the children dependent and neglected does not appear in the record and is
not being challenged in this appeal.
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(“the trial court”) pursuant to Tennessee Code Annotated section 16-4-108(a)(2),4 finding
that under Tennessee Code Annotated section 37-1-159(a), an “appeal from any final order
or judgment in . . . [a] dependent and neglect proceeding . . . may be made to the circuit
court that shall hear the testimony of witnesses and try the case de novo.” In re Brilee E.,
No. M2019-00927-COA-R3-JV (Tenn. Ct. App. Sept. 19, 2019) (order). Upon transfer,
the trial court appointed attorney Dailey E. Wilson as guardian ad litem for the children.
The trial court heard the case de novo on January 14, 2020. Grandmother testified
on her own behalf, and DCS offered Savannah R. Hayward as its only witness.
Grandmother stated that she received legal custody of the children in 2014. She added that
she had been taking care of Brilee most of her life and of Brayden since birth, being the
primary provider for the children until the juvenile court gave DCS custody of the children
in September 2017. Grandmother said that DCS did not use local case workers to assist
her because her “boyfriend’s step-sister works at DCS.” She insisted that she completed
an alcohol and drug class and a parenting assessment, as required under the permanency
plan, “in order for the grandchildren to be able to return to [her].” Grandmother admitted
that she refused a drug screen during DCS’s August 2017 visits and that she failed a court-
ordered drug screen in January 2019. She stated, however, that she got her own hair follicle
test because she disagreed with the drug screen results. Grandmother did not recall the
date of the hair follicle test or introduce into evidence the test results and did not dispute
that the test may have occurred prior to the hearing of her petition in juvenile court in
January 2019. As to income, Grandmother said she receives $800 per month in social
security benefits.
Ms. Hayward testified she became DCS’s designated social services worker for
the case at some point between May and July 2018. Her role was to assist the family with
reunification or take other steps of permanency to ensure the children’s safety. She
explained that under the permanency plan, Grandmother was required to “complete an
assessment for parenting and drug [and] alcohol and complete any of the recommendations
from that, drug screens, walk throughs of the home, stay away from known drug users and
abusers.” According to Ms. Hayward, Grandmother’s alcohol and drug assessment
recommended intensive outpatient services. She stated that the juvenile court ordered
Grandmother to take a drug screen during a hearing on January 15, 2019, and that
Grandmother tested positive for methamphetamines, oxycodone, and THC. Ms. Hayward
said that at the hearing, Grandmother presented the juvenile court with a hair follicle test
dated January 4, 2019.
With respect to the children, Ms. Hayward expressed concern about potential
exposure to drugs if they were returned to Grandmother, noting that Grandmother did not
4
Cases appealed to “the wrong court shall by that court be transferred to the court having
jurisdiction of the case.” Tenn. Code Ann. § 16-4-108(a)(2).
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complete the intensive outpatient program recommended under the alcohol and drug
assessment. Ms. Hayward testified that the children are well-adjusted in their pre-adoptive
foster home and that they call their foster parents “mother and father.” She added that the
children have never changed foster homes and that she believes remaining in the foster
home is in the children’s best interest. Ms. Hayward acknowledged that she has never
worked directly with Grandmother. She stated, however, that DCS had worked with
Grandmother for approximately one year to attempt reunification and had maintained
communication with her until the juvenile court removed her as a party in May 2019. In
response to a question from the trial court, Ms. Hayward said she sees the children twice a
month. Based on her involvement with the children since their removal from
Grandmother’s custody in September 2017, the guardian ad litem agreed with Ms.
Hayward that it was in the children’s best interest to remain in DCS custody.
On March 2, 2020, the trial court entered an order denying Grandmother’s petition.
The trial court stated that “the parties agreed that there is clear and convincing evidence
that the issues which led to the finding of dependency and neglect by the juvenile court
exist as of the date of de novo review.” (Emphasis added). Consequently, the trial court
proceeded to set forth its analysis of the factors listed in Tennessee Code Annotated section
36-6-106 to determine whether Grandmother’s petition for custody should be granted,
finding by clear and convincing evidence that it was in the children’s best interest to remain
in DCS custody. Grandmother timely appealed the ruling to this Court.
Issues Presented
Grandmother challenges the trial court’s findings concerning the best interest
factors set forth in Tennessee Code Annotated section 36-6-106 on which the trial court
relied to deny her petition for custody. DCS responds that the trial court properly denied
the petition but also asserts that this appeal has been rendered partially moot by events that
occurred since the trial court entered the order denying Grandmother’s petition.5
Standard of Review
This Court reviews the trial court’s findings of fact de novo upon the record,
accompanied by a presumption of the correctness, unless the preponderance of the evidence
is otherwise. See Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013) (citing
Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); Hass v.
Knighton, 676 S.W.2d 554, 555 (Tenn. 1984)). We review the trial court’s conclusions of
5
This Court granted DCS’s motion to consider the following post-judgment facts: 1) the children’s
mother executed a surrender of her parental rights to both children on October 22, 2020; 2) Brayden’s father
executed a surrender of his parental rights regarding Brayden on October 23, 2020; and 3) the juvenile court
entered an order on November 5, 2020, granting full guardianship of Brayden to DCS.
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law de novo, with no presumption of correctness. Id. When the trial court’s findings of
fact “rest on a determination of credibility and the weight of oral testimony, appellate courts
give great deference to a trial court.” Kincade v. Kincade, No. M2017-00797-COA-R3-
CV, 2018 WL 1631415, at *5 (Tenn. Ct. App. Apr. 4, 2018) (citing State ex rel. Flowers
v. Tenn. Trucking Ass’n Self Ins. Grp. Trust, 209 S.W.3d 595, 599 (Tenn. Ct. App. 2006);
Woodward v. Woodward, 240 S.W.3d 825, 828 (Tenn. Ct. App. 2007)). In addition, this
Court has noted:
Trial courts are vested with wide discretion in matters of child custody.
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Suttles v. Suttles, 748
S.W.2d 427, 429 (Tenn. 1988). A determination of custody and visitation
often hinges on subtle factors such as the parents’ demeanor and credibility
during the trial proceedings. Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn.
Ct. App. 1996). Absent some compelling reason otherwise, considerable
weight must be given to the trial court’s judgment with respect to the parties’
credibility and their suitability as custodians of children. Bush v. Bush, 684
S.W.2d 89, 94–95 (Tenn. Ct. App. 1984).
Dishon v. Dishon, No. M2017-01378-COA-R3-CV, 2018 WL 3493159, at *5 (Tenn. Ct.
App. July 20, 2018) (cleaned up).
Analysis
I.
Partial mootness
As a threshold issue, we first address DCS’s argument that this appeal has been
rendered moot as to one of the children, Brayden. In support of this argument, DCS asserts
that following entry of the trial court’s order denying Grandmother’s petition for custody,
Brayden’s mother and father surrendered their parental rights as to him and the juvenile
court awarded “complete custody, control, and full guardianship” of Brayden to DCS.
Therefore, DCS argues, the determination of Brayden’s custody is no longer at issue.
Generally, this state’s appellate courts dismiss appeals that have become moot.
Norma Faye Pyles Lynch Fam. Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 210 (Tenn.
2009) (referencing a tradition of “restraint in addressing issues when the parties do not
have a continuing, real, live, and substantial interest in the outcome”). An appeal becomes
moot when it ceases to be justiciable; that is, it no longer involves “a genuine, continuing
controversy requiring the adjudication of presently existing rights.” State v. Brown &
Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000). In other words, the appeal
“no longer serves as a means to provide some sort of judicial relief to the prevailing party.”
All. for Native Am. Indian Rights in Tennessee, Inc. v. Nicely, 182 S.W.3d 333, 338 (Tenn.
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Ct. App. 2005) (citation omitted). Thus, the resolution of this issue turns on whether the
juvenile court’s order granting full guardianship of Brayden to DCS deprives Grandmother
of judicial relief should she prevail in her challenge to the trial court’s denial of her petition.
A surrender of parental rights, like the one Brayden’s parents executed, has “the
effect of terminating all rights as the parent or guardian to the child who is surrendered.”
Tenn. Code Ann. § 36-1-111(r)(1)(A)(i) (2017). Further, our Supreme Court has observed
that section 36-1-111 “anticipates . . . that the surrender of parental rights . . . is made in
favor of a specific other person or entity who must (or will soon) have physical custody of
the child, and that the child will be made available for adoption.” In re Angela E., 303
S.W.3d 240, 247 (Tenn. 2010) (internal citations omitted). The order of the juvenile court
granting guardianship of Brayden to DCS “supersede[s] prior orders of custody or
guardianship of that court and of other courts . . . .” Id. § 36-1-113(n); see also In re Alexis
S., No. E2018-01989-COA-R3-PT, 2019 WL 5586820, at *13 (Tenn. Ct. App. Oct. 29,
2019). As a result, the juvenile court’s order adjudicating Grandmother’s petition for
custody, which is the subject of this appeal, has been displaced as to Brayden. Inasmuch
as the order challenged by Grandmother in this appeal is no longer determinative of
Brayden’s custody status, her appeal as to him has ceased to be justiciable. We, therefore,
dismiss it as moot.
II.
Statutory best interest factors
We now take up Grandmother’s contention that “the preponderance of the evidence
negates the presumption of correctness of the Trial Court’s findings” in the order denying
Grandmother’s petition for custody as to Brilee. In so doing, we are mindful of our
Supreme Court’s admonition that “[a]ppellate courts should reverse custody decisions
‘only when the trial court’s ruling falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the evidence.’” Kelly
v. Kelly, 445 S.W.3d 685, 696 (Tenn. 2014) (quoting Armbrister, 414 S.W.3d at 693).
Here, the trial court based its ruling on its analysis of the best interest factors for custody
determinations set forth in Tennessee Code Annotated section 36-6-106(a), which states
that in “any . . . proceeding requiring the court to make a custody determination regarding
a minor child, the determination shall be made on the basis of the best interest of the child.”
Tenn. Code Ann. § 36-6-106(a) (2017); see also Kelly, 445 S.W.3d at 696 (“[I]n addressing
these [custody] issues, the courts [a]re required to consider the . . . factors enumerated in
[section] 36-6-106(a)(1)–(10).”). We review each statutory factor in turn.
The first factor considers the “strength, nature, and stability of the child’s
relationship with each parent, including whether one (1) parent has performed the majority
of parenting responsibilities relating to the daily needs of the child.” Tenn. Code Ann. §
36-6-106 (a)(1). The record supports the trial court’s finding that Grandmother performed
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the majority of parenting responsibilities relating to Brilee prior to her removal from
Grandmother’s care in September 2017. The record also supports the finding that Brilee’s
foster parents have provided for all of her needs from September 2017 until Grandmother’s
petition for custody was heard in January 2020. Ms. Hayward testified that the children
are well-adjusted at the foster home and that they call the foster parents “mother and
father.” We find this factor weighs in favor of Brilee’s foster placement. For the same
reasons, we find that the fifth factor also weighs in favor of her current placement. See id.§ 36-6-106(a)(5) (“The degree to which a parent has been the primary caregiver, defined
as the parent who has taken the greater responsibility for performing parental
responsibilities.”).
The second factor examines “[e]ach . . . caregiver’s past and potential for future
performance of parenting responsibilities . . . .” Id. § 36-6-106 (a)(2). As noted, the record
shows that Grandmother performed the majority of parenting responsibilities until the
children were removed from her care. Her ability to perform these responsibilities in the
future, however, appears hindered by issues related to drug use, including a positive drug
screen more than a year after the children’s removal and her failure to complete the
treatment programs recommended in her alcohol and drug assessment. Conversely, by the
time of the trial court hearing, Brilee had been in her foster parents’ care for almost two
and a half years without incident and had been attending school and therapy. We agree
with the trial court’s conclusion that this factor weighs in favor of continuing the foster
placement. For the same reasons, we reach the same conclusion as to the tenth factor. See
id. § 36-6-106 (a)(10) (“The importance of continuity in the child’s life and the length of
time the child has lived in a stable, satisfactory environment.”).
The third factor provides that the “[r]efusal to attend a court ordered parent
education seminar may be considered by the court as a lack of good faith effort in these
proceedings.” Id. § 36-6-106 (a)(3). The record indicates that Grandmother completed an
alcohol and drug assessment but failed to follow its recommendations. Ms. Hayward
testified that Grandmother also completed a parenting assessment. The record does not
show whether the parenting assessment provided recommendations or if Grandmother
followed them, if any. We find, contrary to the trial court, that this factor does not weigh
against Grandmother. Likewise, we find that the fourth factor does not weigh against either
party. This factor accounts for the “disposition of each parent to provide the child with
food, clothing, medical care, education and other necessary care.” Id. § 36-6-106 (a)(4).
The trial court found that Grandmother “cares a great deal for the children,” and the
evidence of her role in taking care of Brilee prior to removal substantiates this finding. The
trial court also found and the record reflects that the foster parents have met all of Brilee’s
needs, including participation in therapy. In our view, the evidence indicates that both
Grandmother and the foster parents have shown a disposition to meet Brilee’s needs.
The sixth factor considers the “love, affection, and emotional ties existing between
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each parent and the child.” Id. § 36-6-106 (a)(6). The trial court found that Grandmother
“clearly loves her grandchildren very much.” Grandmother, however, stated at the hearing
that she has not seen the children since June 2018. Ms. Hayward testified that the children
called their foster parents “mother and father.” As the trial court did, we find that this
factor weighs in favor of continuing the foster placement, recognizing that Brilee had been
with the foster parents for over two years by the time of the trial court hearing.
The seventh factor accounts for the “emotional needs and developmental level of
the child.” Id. § 36-6-106 (a)(7). Ms. Hayward testified that the foster parents make sure
that the children attend their out-of-school therapy. The record contains no further
evidence concerning this factor, and we conclude this factor favors continuing foster care.
The eighth factor is the “moral, physical, mental and emotional fitness of each
parent as it relates to their ability to parent the child.” Id. § 36-6-106 (a)(8). The alcohol
and drug assessment taken by Grandmother recommended intensive outpatient services,
which she did not complete. We cannot conclude from the record whether Grandmother
followed the recommendations of her parenting assessment, if any, as required by the
permanency plan after removal of the children. These unaddressed issues cast doubt on
Grandmother’s fitness to safely parent Brilee. As the trial court did, we find that this factor
weighs against Grandmother.
The ninth factor is the “child’s interaction and interrelationships with siblings, other
relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s
physical surroundings, school, or other significant activities.” Id. § 36-6-106 (a)(9). Brilee
has lived together with her younger brother, Brayden, during her time with Grandmother
before removal and with her foster parents thereafter. Ms. Hayward testified that the
children are well-adjusted and have been attending school and therapy while in foster care.
We agree with the trial court that this factor slightly favors continuing foster care.
The record contains no evidence of physical or emotional abuse by Grandmother or
the foster parents; of the character and behavior of any other person who resides in or
frequents their homes and such person’s interactions with the child; or of their employment
schedules. See id. § 36-6-106 (a)(11), (12), (14). The thirteenth factor is inapplicable
because of Brilee’s age. See Id. § 36-6-106 (a)(13) (“The reasonable preference of the
child if twelve (12) years of age or older.”).
Having reviewed the statutory factors in light of the record, we conclude that the
evidence does not preponderate against the trial court’s finding that it is in Brilee’s best
interest to remain in DCS custody and with her foster parents. In sum, we find no basis to
upend Brilee’s stable and successful foster placement and return her to a situation where
we cannot conclude that the circumstances that caused her removal have been resolved.
The trial court did not err in denying Grandmother’s petition for custody.
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Conclusion
We dismiss the appeal as moot as to Brayden and affirm the judgment of the
Montgomery County Circuit Court as to Brilee. Costs of this appeal are taxed to the
appellant, Melissa E., for which execution may issue if necessary.
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KRISTI M. DAVIS, JUDGE
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