In Re PrinceKenyan F.

08/30/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 1, 2021
IN RE PRINCEKENYAN F.1
Appeal from the Chancery Court for Lawrence County
No. 20-19160 Stella L. Hargrove, Judge
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No. M2020-01306-COA-R3-PT
___________________________________
This appeal concerns the termination of a mother’s parental rights. The trial court found
that seven grounds had been established: abandonment for failure to support; abandonment
for failure to visit; abandonment for failure to provide a suitable home; substantial
noncompliance with the permanency plan; persistence of conditions; mental incompetence;
and failure to manifest an ability and willingness to assume custody. It also found that
termination was in the child’s best interest for many reasons, including the mother’s failure
to provide a safe home, maintain regular visitation, pay child support, and resolve her legal,
mental health, and substance abuse issues. The mother contends the trial court incorrectly
calculated the period relevant to the ground of abandonment, erred by admitting her mental
health records into evidence in violation of Tenn. Code Ann. § 24-7-122, and that the
evidence failed to meet the clear and convincing evidence standard. Following a thorough
review of the record, we have determined that four of the seven grounds for termination as
found by the trial court were established by clear and convincing evidence and that
termination of the mother’s parental rights was clearly and convincingly in the child’s best
interest. Therefore, we affirm the termination of the mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.
Teresa Powers Martin, Lawrenceburg, Tennessee, for the appellant, Kiona F.
1
This court has a policy of protecting the identity of children by initializing the last names of the
parties.
Herbert H. Slattery III, Attorney General and Reporter; Amber L. Seymour, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
Stacie Odeneal Shultz, guardian ad litem, Lawrenceburg, Tennessee, for the appellee,
Prince Kenyan F.
OPINION
FACTS AND PROCEDURAL HISTORY
Prince Kenyan D. F. (“the Child”) was born to Kiona D. F. (“Mother”) in July 2018.2
Three months later, the Department of Children’s Services (“DCS”) received a child safety
referral from the emergency department at Southern Tennessee Regional Hospital. When
DCS investigator Melinda Goolsby arrived, she found Mother in an agitated and paranoid
state. Mother believed that an ex-boyfriend was stalking her and holding her family
hostage. She insisted that she and the Child would be killed if they left the hospital and
demanded Ms. Goolsby contact the Federal Bureau of Investigation and the U.S. Marshalls
to place them in protective custody.
Mother explained that she had worked as a prostitute for a period and her ex-
boyfriend was “a big-time pimp.” She described to Ms. Goolsby a dream in which she
realized that the ex-boyfriend was kidnapping girls and taking them to Cuba or Mexico.
Mother believed her ex-boyfriend had been following her since she was a teenager and
knew “she was telling people about what they are doing.”
Mother also told Ms. Goolsby that she had lost her housing in 2016 and placed her
two older children with her grandmother. Although Mother obtained new housing in
August 2018, she no longer believed her apartment was safe. Mother also thought someone
was watching her grandmother’s house. Mother said that she tried reporting the situation
to local police, but they did not believe her. Instead, Mother was sent to Rolling Hills
Hospital for mental health treatment. While she was at Rolling Hills, the Child stayed with
his maternal grandmother.
Mother explained that she took the Child to the hospital because she believed he
was molested while staying at her mother’s house. The hospital staff told her the Child
merely had a diaper rash, but Mother refused to accept the explanation and demanded a
rape kit. It took several hours to calm Mother down, and the hospital decided to hold
Mother for a psychiatric evaluation.
2
Although the style of this case reads “In re PrinceKenyan F.,” the Child’s birth certificate reads
“Prince Kenyan D[.] F[.]” Further, the birth certificate does not list the Child’s father, and there is no record
of any party filing to establish paternity.
-2-
Unable to identify a suitable caretaker for the Child, Ms. Goolsby placed him into
state custody. Mother was then re-hospitalized for mental health treatment at Western
Mental Health Institute (“WMHI”).
I. PERMANENCY PLANS
After taking the Child into custody, DCS filed a dependency and neglect petition in
the Lawrence County Juvenile Court and placed the Child into foster care with his great-
aunt, Erica F.
Mother was discharged from WMHI in November 2018, at which time DCS
developed the Child’s first permanency plan with Mother’s participation. The permanency
plan included several responsibilities for Mother, including completing mental health,
parenting, and alcohol and drug assessments and following all recommendations to
completion; submitting to and passing random drug screens; obtaining, maintaining, and
providing proof of stable housing and income; paying child support; completing
“homemaker services” and parenting education; and resolving legal issues and not
incurring new charges.
Unfortunately, Mother’s path to reunification with the Child was soon beset with
problems. In December 2018, Mother was incarcerated in Lawrence County for violating
the conditions of her parole.3 Then, after Mother was released in January 2019, she tested
positive for benzodiazepines, methamphetamine, and tetrahydrocannabinol (“THC”).
While Mother completed the required alcohol and drug (“A&D”) assessment, she did not
comply with the resulting recommendation for outpatient therapy.
Still, Mother’s circumstances appeared to improve, albeit modestly, in February
2019 when she obtained a job at a pizza restaurant and passed her second drug screen. Later
that month, the juvenile court set Mother’s child support at $180 per month. The juvenile
court also entered an order finding the Child dependent and neglected based on Mother’s
failure to provide care during her mental health hospitalizations in October 2018 and during
her subsequent period of incarceration in December 2018. The court specifically noted that
Mother needed to address her mental health issues before the Child could be returned to
her custody.
Despite the court’s admonition on Mother’s mental health, Mother never completed
the mental health assessment required by the permanency plan. In fact, Mother denied any
mental health problems and admitted that she was not taking the medication prescribed
during her stay at WMHI.
3
The underlying conviction for which Mother was on parole is not clear in the record, but it appears
to pre-date Mother’s mental health hospitalizations.
-3-
What little progress Mother seemed to achieve in February 2019 was quickly erased.
The following month, Mother refused to complete a random drug screen and admitted to
using THC. When DCS visited Mother’s residence, several unidentified people were
present, and the home smelled like marijuana. And during supervised visits with the Child,
Mother spent most of the time criticizing DCS caseworkers. At one point, Mother even
threatened to “blow up” the DCS building.
Then, in May 2019, Mother was found guilty in Giles County of several driving
offenses and received a six-month suspended sentence. Her criminal behavior continued in
July 2019, when Mother was arrested and spent several days incarcerated in Maury County
for possession of marijuana and methamphetamine. Around the same time, Mother told
DCS that she had moved out of state and would not be returning for a scheduled visit with
the Child.
Mother eventually returned to the state but did not contact DCS. In December 2019,
a Marshall County court convicted Mother of violating her probation by failing to report.
That same month, Mother was charged in Maury County with several more driving
offenses and charges of criminal impersonation, falsifying drug test results, and possession
of marijuana. Mother later spent ten days in jail for failure to appear.
II. TERMINATION PROCEEDINGS
DCS filed its Petition to Terminate Parental Rights in early January 2020. At the
time, Mother was incarcerated and did not respond. Thus, in February 2020, DCS moved
for a default judgment. Mother filed a pro se response, the trial court appointed her an
attorney, and the parties agreed to continue DCS’s motion.
In a separate pro se letter to the court, Mother asserted that she was still “in grave
danger” and “in a hostage situation” and “in fear for [her] life.” Mother explained that she
“had to relocate out of state with hopes [her] stalker/killer/sniper/or possibly clown could
not find [her].” Mother repeated her cryptic allegations about clowns during a child and
family team video conference in June 2020, when she accused DCS of ignoring that
“clowns fell from the sky” in 2016. During the meeting, Mother stated that she had left the
state again, but she refused to give any contact information to her attorney or DCS other
than a post office box in Giles County.
When the Petition to Terminate came on for a final hearing on July 13, 2020,
Mother’s counsel appeared, but Mother did not appear despite being sent multiple notices
of the final hearing.4 Upon DCS’s Motion for Default, the court found Mother failed to
4
One week before the final hearing, Mother’s attorney moved to withdraw due to Mother’s lack of
communication and cooperation. In an affidavit, Mother’s attorney detailed her unsuccessful efforts to
contact Mother. The court denied the Motion to Withdraw, citing the significance of Mother’s parental
rights.
-4-
substantively respond to the pleadings without justification and failed to appear at trial; as
a consequence, the court granted a default. Nevertheless, the trial on the Petition to
Terminate Mother’s parental rights proceeded.
The trial court heard testimony from DCS caseworker Melinda Goolsby, DCS
caseworker Dominique McCoy, probation officer Tiffany Hayden, and the Child’s foster
mother, Erica F. The court also admitted into evidence several documents, including the
juvenile court file; Mother’s criminal records; and Mother’s child support payment history
from the Tennessee Department of Human Services. When DCS sought to introduce
Mother’s mental health records from Rolling Hills Hospital, Mother’s attorney objected on
the ground that no custodian affidavit was included, and the court marked the records for
identification purposes only. At the conclusion of the trial, the court announced that it
would be granting the petition to terminate Mother’s parental rights.
In its Order of August 14, 2020, the trial court found that DCS proved eight statutory
grounds for termination: (1) abandonment for failure to visit; (2) abandonment for failure
to support; (3) abandonment for failure to provide a suitable home; (4) substantial
noncompliance with the permanency plan; (5) persistence of conditions; (6) mental
incompetence; (7) and failure to assume legal and physical custody. The court also found
that termination of Mother’s rights was in the Child’s best interest for many reasons,
including Mother’s failure to provide a safe home; Mother’s failure to maintain regular
visitation; Mother’s failure to pay child support; and Mother’s failure to resolve her legal,
mental health, and substance abuse issues.
This appeal followed.
ISSUES
Mother raises four issues on appeal:
I. Whether the trial court erred in admitting medical records when no notice
was provided consistent with notifying the adverse party sixty (60) days
prior to trial.
II. Whether the trial court erred in computing the critical period for purposes
of establishing abandonment.
III. Whether the trial court erred in finding statutory grounds to terminate the
parental rights of Mother by clear and convincing evidence.
IV. Whether the trial court erred in finding the termination of Mother’s
parental rights was in the Child’s best interest.
-5-
STANDARD OF REVIEW
“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). “[T]his 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)).
“To terminate parental rights, a court must determine that clear and convincing
evidence proves not only that statutory grounds exist but also that termination is in the
child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code
Ann. § 36-1-113(c)). “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 586, 596 (Tenn. 2010) (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 Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016).
In an appeal, “this court is required ‘to review thoroughly the trial court’s findings
as to each ground for termination and as to whether termination is in the child’s best
interests.’” In re Connor B., 603 S.W.3d 773, 779 (Tenn. Ct. App. 2020) (quoting In re
Carrington H., 483 S.W.3d at 525). In doing so, we must 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).
Stated another way, we must make our own “determination as to whether the facts, either
as found by the trial court or as supported by a preponderance of the evidence, amount to
clear and convincing evidence of the elements necessary to terminate parental rights.” In
re Carrington H., 483 S.W.3d at 524.
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.
See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d at 523–24; 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)). A trial court’s determinations regarding
witness credibility are entitled to great weight on appeal and will not be disturbed absent
clear and convincing evidence to the contrary. In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007).
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ANALYSIS
I. MENTAL HEALTH RECORDS
Mother contends her mental health records from Rolling Hills and WMHI should
have been excluded because DCS failed to provide the records to her at least 60 days before
trial along with notice that the records may be offered in evidence as required by Tenn.
Code Ann. § 24-7-122.5 The guardian ad litem and DCS contend that Mother waived this
issue by not raising it before the trial court. We agree.
We addressed a substantially similar situation in In re Gracie H.Y., No. M2019-
00639-COA-R3-PT, 2020 WL 1249453 (Tenn. Ct. App. Mar. 16, 2020), appeal denied
(June 16, 2020). In Gracie, the mother objected to the admittance of medical records at
trial for lack of foundation and relevance. Id. at *14. But on appeal, the mother objected to
the documents’ admittance because they were not provided before trial per Tenn. Code
Ann. § 24-7-122. Id. Because the mother had not raised that ground in her objection during
the trial, we found she waived the issue on appeal. Id.Here, Mother objected to admitting her Rolling Hills records in the trial court on the
basis that no custodian affidavit was attached.6 She did not, however, object to the
admission of her WMHI records on any grounds. Nevertheless, on appeal, Mother argues
that all of her medical records should have been excluded under § 24-7-122. Because
Mother did not raise this issue before the trial court, we find she has waived it on appeal.
See In re Gracie, 2020 WL 1249453, at *14.
II. GROUNDS FOR TERMINATION
The trial court found DCS proved seven grounds for terminating Mother’s parental
rights: (1) abandonment by failure to visit; (2) abandonment for failure to support; (3)
abandonment for failure to provide a suitable home; (4) substantial noncompliance with
the permanency plan; (5) persistence of conditions; (6) mental incompetence; (7) and
failure to assume legal and physical custody. Accordingly, we will review the trial court’s
findings on each ground. See In re Carrington H., 483 S.W.3d at 525–26.
5
Tennessee Code Annotated § 24-7-122 provides in relevant part:
(c) When records or reproductions of records are used at trial pursuant to this section, the
party desiring to use the records or reproductions in evidence shall serve the opposing
party with a copy of the records or reproductions no later than sixty (60) days before
the trial, with notice that the records or reproductions may be offered in evidence,
notwithstanding any other rules or statutes to the contrary.
6
The record before this court reveals that the custodian’s affidavit was subsequently filed with the
court.
-7-
A. Abandonment
A ground for termination exists if “[a]bandonment by the parent or guardian, as
defined in § 36-1-102, has occurred.” Tenn. Code Ann. § 36-1-113(g)(1).
The trial court found that DCS established three grounds of abandonment: two under
§ 36-1-102(1)(A)(i), which defines abandonment as the failure to support or the failure to
visit during the four months “immediately preceding the filing of a proceeding, pleading,
petition or amended petition for termination of parental rights or adoption”; the other under
§ 36-1-102(1)(A)(ii), which defines abandonment as the failure to make efforts to provide
a suitable home for the child for four months after the child’s removal.
Mother contends the trial court incorrectly computed the period for establishing
abandonment for failure to visit and abandonment for failure to support under Tenn. Code
Ann. § 36-1-102(1)(A)(i). DCS concedes this issue on appeal but asserts that abandonment
was proven under the definition in § 36-1-102(1)(A)(ii). Thus, our analysis will be limited
to the third ground of abandonment.
Under Tenn. Code Ann. § 36-1-102(1)(A)(ii), abandonment may be proven by
showing that the parent failed to make reasonable efforts to provide a suitable home for the
child for four months after the child’s removal:
For purposes of terminating the parental or guardian rights of a
parent . . . “abandonment” means that:
. . .
(ii)(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 [dependency
and neglect] proceedings . . . , and the child was placed in the custody
of the department or a licensed child-placing agency;
(b) The juvenile court found . . . 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
(c) For a period of four (4) months following the physical removal, the
department or agency 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 they will be able to
provide a suitable home for the child at an early date. . . .
-8-
“A suitable home ‘requires more than a proper physical living location. It requires
that the home be free [from] drugs and domestic violence.’” In re Navada N., 498 S.W.3d
579, 595 (Tenn. Ct. App. 2016) (citations omitted). Similarly, matters relating to
counseling and assessments are “directly related to the establishment and maintenance of
a suitable home.” In re M.F.O., No. M2008-01322-COA-R3-PT, 2009 WL 1456319, at *5
(Tenn. Ct. App. May 21, 2009). Further, “[t]he 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.” Tenn. Code Ann. § 36-1-102(1)(A)(ii)(c).
The Child was physically removed from Mother on October 16, 2018. The next day,
the Child was removed from Mother’s legal custody by court order at the beginning of the
dependency and neglect proceedings.7 Thus, the relevant period for this termination ground
was October 17, 2018, to February 17, 2019.
The trial court found that DCS made reasonable efforts to assist Mother during the
relevant period, but Mother did not make reciprocal efforts to establish a suitable home,
and the evidence does not preponderate against this finding. During the trial, Ms. McCoy
testified that DCS provided access to several services related to establishing a suitable
home, including a mental health assessment, an A&D assessment, and homemaker
services. Although Mother completed the A&D evaluation, she did not follow the resulting
recommendation to attend outpatient therapy. Mother failed a drug test in January 2019,
admitted to using THC in March 2019, and was arrested several times for possession of
marijuana and methamphetamine. And although Mother attended one homemaker class,
she did not complete the program.
The trial court also found that Mother showed a lack of concern for the Child such
that it appeared unlikely Mother could provide a suitable home in the near future, and the
evidence does not preponderate against this finding. Ms. McCoy testified that Mother had
altogether stopped cooperating with DCS by mid-2019 and moved out of state. When
Mother returned, she was incarcerated on several drug-related charges. Moreover,
Mother’s probation officer, Ms. Hayden, testified that Mother gave her the address for a
homeless shelter in Nashville around the same time. The Child’s foster mother, Erica F.,
testified that Mother visited the Child’s home on a few occasions in 2020 but gave little
attention to the Child.
Based on the above, we affirm the trial court’s conclusion that the evidence clearly
and convincingly established the ground of abandonment by failure to provide a suitable
7
It is undisputed that the juvenile court found the circumstances of the Child’s situation prevented
reasonable efforts from being made before the Child’s removal.
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home under Tenn. Code Ann. § 36-1-102(1)(A)(ii). However, because DCS concedes that
abandonment by failure to visit and support was not proven under the definition in § 36-1-
102(1)(A)(i), we reverse the trial court’s ruling on those grounds.
B. Substantial Noncompliance with Permanency Plan
Termination of parental rights may also be based on “substantial noncompliance by
the parent or guardian with the statement of responsibilities in a permanency plan pursuant
to title 37, chapter 2, part 4.” Tenn. Code Ann. § 36-1-113(g)(2). Noncompliance with the
permanency plan may be grounds for termination only “if the court finds the parent was
informed of [the plan’s] contents, and that the requirements . . . [were] reasonable and
[were] related to remedying the conditions that necessitate foster care placement.” Tenn.
Code Ann. § 37-2-403(a)(2)(C); see also In re Valentine, 79 S.W.3d at 547. “Conditions
necessitating foster care placement may include conditions related both to the child’s
removal and to family reunification.” In re Valentine, 79 S.W.3d at 547. Whether a parent’s
noncompliance is substantial depends on “the degree of noncompliance and the importance
of the particular requirement that has not been met.” In re M.J.B., 140 S.W.3d 643, 656
(Tenn. Ct. App. 2004) (citations omitted).
DCS developed a permanency plan with the participation of Mother in November
2018. DCS revised the plan three times after that. Each version of the plan identified
Mother’s mental health hospitalization as the reason for the Child’s removal. Although
Mother was discharged from the hospital in November 2018, the juvenile court found the
Child dependent and neglected in February 2019 because Mother had been incarcerated
during December 2018 and January 2019 and still had “mental health needs that need[ed]
to be addressed prior to the [C]hild returning to her custody.” The Child’s DCS caseworker,
Ms. McCoy, testified that Mother’s mental health treatment and resolution of outstanding
legal issues were the most critical to ensure safe reunification with the Child. Thus, the
permanency plans required Mother to, inter alia (1) complete a psychological assessment
and follow all recommendations; (2) provide proof of housing; (3) provide proof of regular
income; and (4) “resolve all legal issues and not [incur] any new charges.”
Ms. McCoy testified that Mother never completed the psychological assessment,
never provided proof of housing or a stable income, and failed to resolve her outstanding
legal issues. Mother also continued to incur new criminal charges. Mother’s probation
officer, Tiffany Hayden, testified that Mother fell behind on her probation fees and an arrest
warrant was outstanding at the time of trial because Mother failed to report.
The evidence shows that Mother knew about her responsibilities, the responsibilities
were reasonable and related to the conditions that necessitated foster care, and Mother
disregarded several requirements of utmost importance to reunification with the Child.
Accordingly, we affirm the trial court’s ruling that the evidence clearly and convincingly
established the ground of substantial noncompliance with the statement of responsibilities
in the permanency plan.
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C. Persistence of Conditions
Under Tenn. Code Ann. § 36-1-113(g)(3), parental rights may be terminated when
the child has been removed from the parent’s custody during dependency and neglect
proceedings for six months and three factors exist:
(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 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 or guardian;
(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 . . . .8
The purpose of this ground is “to prevent the child’s lingering in the uncertain status
of foster child if a parent cannot within a reasonable time demonstrate an 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) (quoting In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576,
at *20 (Tenn. Ct. App. Oct. 13, 2008)), overruled on other grounds by In re Kaliyah S.,
455 S.W.3d 533 (Tenn. 2015). As the statute prescribes, “[a] parent’s continued inability
to provide fundamental care to a child . . . constitutes a condition which prevents the safe
return of the child to the parent’s care.” In re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct.
App. 2012) (quoting In re A.R., 2008 WL 4613576, at *20). Further, “[w]here . . . efforts
to provide help to improve the parenting abilities, offered over a long period of time, have
proved ineffective, the conclusion that there is little likelihood of such improvement as
would allow the safe return of the child to the parent in the near future is justified.” Id.The initial reason for the Child’s removal was Mother’s hospitalization for mental
health treatment and the lack of an alternative caregiver. The Child was removed from
Mother’s custody in October 2018 when DCS filed its dependency and neglect petition in
the juvenile court and remained in foster care during the trial, over 18 months later.
Thereafter, the juvenile court found the Child dependent and neglected because of Mother’s
incarceration and continuing mental health needs.
8
Tennessee Code Annotated § 36-1-113(g)(3) requires clear and convincing evidence of all three
factors. In re Valentine, 79 S.W.3d at 550.
- 11 -
Between the time the Child was removed and the trial on the Petition to Terminate
Mother’s rights, Mother provided no proof of stable income or housing and was
incarcerated multiple times. Mother also spent a period living at a homeless shelter.
Further, records from the Tennessee Department of Human Services show that Mother paid
just over $300 in child support during 2019, despite being ordered to pay $180 per month.
And at the time of trial, Mother had an outstanding warrant for her arrest in Lawrence
County for violating her probation.
DCS tried to help Mother improve her parenting abilities over a long period. Four
permanency plans were entered during this case, three before DCS filed its petition to
terminate Mother’s parental rights. Each extended the time for Mother to complete her
responsibilities, and each provided that DCS would help Mother in various ways, such as
obtaining a mental health assessment and access to A&D treatment. DCS arranged for
visitation with the Child and transported Mother to the visits. Mother not only failed to
seize these opportunities, but she also actively rebuffed DCS by verbally assaulting the
personnel charged with helping her and then moving out of state.
The Child’s foster mother, Erica F., testified that she was prepared to adopt the Child
if the trial court terminated Mother’s parental rights and that the Child was thriving in her
care.
Based on the above and other facts in the record, the trial court found that the
evidence established the first of the three statutory factors, that other conditions existed
that, in all reasonable probability, would cause the Child to be subjected to further abuse
or neglect, preventing the Child’s safe return to Mother’s care. See Tenn. Code Ann. § 36-
1-113(g)(3)(A)(i). The trial court also found that the evidence established the second
statutory factor, that there was little likelihood the conditions preventing the Child’s safe
return would be remedied at an early date. See id. § 113(g)(3)(A)(ii); see also In re Dakota
C.R., 404 S.W.3d at 499 (“Where . . . efforts to provide help to improve the parenting
abilities, offered over a long period of time, have proved ineffective, the conclusion that
there is little likelihood of such improvement as would allow the safe return of the child to
the parent in the near future is justified.” (quoting In re A.R., 2008 WL 4613576, at *20)).
Additionally, the court found the third factor had been established—that continuation of
the parent-child relationship between Mother and the Child greatly diminished the Child’s
chances of early integration into a safe, stable, and permanent home. See Tenn. Code Ann.
§ 36-1-113(g)(3)(iii).
The evidence in the record does not preponderate against any of these findings.
Moreover, we have concluded, as the trial court did, that DCS proved the ground of
persistence of conditions under Tenn. Code Ann. § 36-1-113(g)(3), by clear and convincing
evidence. Accordingly, we affirm on this ground.
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D. Mental Incompetence
Under Tenn. Code Ann. § 36-1-113(g)(8)(B), a parent’s rights may be terminated if
the parent’s mental condition is impaired and unlikely to improve:
The court may terminate the parental or guardianship rights of that person if
it determines on the basis of clear and convincing evidence that:
(i) The parent . . . of the child is incompetent to adequately provide for
the further care and supervision of the child because the
parent’s . . . mental condition is presently so impaired and is so likely
to remain so that it is unlikely that the parent . . . will be able to assume
or resume the care of and responsibility for the child in the near
future. . . .
In determining that this ground applied, the trial court relied heavily on medical
records from Mother’s stay at Rolling Hills and WMHI and Ms. Goolsby’s testimony that
“Mother refuses to admit she is mentally ill and needs treatment.” On appeal, DCS cites
evidence of Mother’s “long history of involuntary admissions to mental institutions” and
Mother’s February 2020 letter to the court, in which she described being stalked by a
clown. Both Ms. McCoy and Ms. Goolsby testified that Mother’s conduct during child and
family team meetings was erratic. Ms. Goolsby testified that Mother “was all over the
place” and unable “to focus and listen or concentrate on one thing at a time” during the
meeting in February 2020 when Mother referenced “clowns [falling] from the sky” in 2016.
While all this evidence is undoubtedly concerning, we find the record lacks the clear
and convincing evidence necessary to establish mental incompetence under Tenn. Code
Ann. § 36-6-113(g)(8). “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 Carrington H., 483 S.W.3d at 522.
Generally, our courts have found the clear and convincing standard for this ground
was met when there was expert testimony about the parent’s mental condition and how it
would affect the parent’s ability to care for the child. See id. at 538 (citing testimony by
“mental health experts . . . that Mother’s impaired mental condition would prevent her
from assuming the care and responsibility for [the child] in the near future”); see also State,
Dep’t of Children’s Servs. v. Mims, 285 S.W.3d 435, 449 (Tenn. Ct. App. 2008) (citing
expert testimony that the father’s impairment “was a ‘lifelong condition’ and that he
functioned in such a low range that no amount of training, education, or counseling ‘could
bring him up to the level where he could parent these children’”); accord In re Joseph F.,
492 S.W.3d 690, 705 (Tenn. Ct. App. 2016); State, Dep’t Of Children’s Servs. v. Peterson,
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341 S.W.3d 281, 292 (Tenn. Ct. App. 2009); In re S.R.C., 156 S.W.3d 26, 28 (Tenn. Ct.
App. 2004).
Here, the only clinical evidence of Mother’s mental condition, which is set forth in
the medical records from October 2018, fails to address Mother’s parenting abilities.9
Moreover, and significantly, there is no expert testimony regarding Mother’s present
mental condition as of the time of trial. This is significant because the statute requires clear
and convincing evidence that the parent “is incompetent to adequately provide for the
further care and supervision of the child because the parent’s . . . mental condition is
presently so impaired and is so likely to remain so that it is unlikely that the
parent . . . will be able to assume or resume the care of and responsibility for the child
in the near future. . . .” Tenn. Code Ann. § 36-1-113(g)(8)(B)(i) (emphasis added). The
record before us fails to provide competent evidence of these essential facts.
Thus, DCS did not clearly and convincingly prove that Mother’s “mental condition
[was] presently so impaired” so as to warrant terminating her parental rights under Tenn.
Code Ann. § 36-1-113(g)(8). Accordingly, we reverse the trial court’s determination that
this ground was proven.
E. Tenn. Code Ann. § 36-1-113(g)(14)
Another ground for termination exists when it is proven by clear and convincing
evidence that: (1) the parent failed to manifest either the ability or willingness to personally
assume legal and physical custody or financial responsibility of the child, and (2) placing
the child in the parent’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);
see In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020). As is evident from the wording
of the statute, there are two essential prongs to this ground, and each prong must be proven
for the ground to be established.
“If a person seeking to terminate parental rights proves by clear and convincing
proof that a parent or guardian has failed to manifest either ability or willingness, then the
first prong of the statute is satisfied.” In re Neveah M., 614 S.W.3d at 677 (emphasis in
original) (citing In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at
*13 (Tenn. Ct. App. June 20, 2018)). The second prong is satisfied if the risk of harm is “a
real hazard or danger that is not minor, trivial, or insignificant” and is “more than a
theoretical possibility.” Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001).
The record shows that when Mother was discharged from WMHI, she failed to
pursue the steps that DCS laid out for reunification. Rather than try to bolster her capacity
9
We recognize that DCS’s ability to prove this ground was hampered by Mother’s refusal to attend
a mental health assessment. As discussed, however, Mother’s failure and outright refusal to cooperate with
DCS contributed to other grounds for termination.
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to care for the Child, Mother abandoned her efforts to maintain the fundamental elements
necessary to care for him. Moreover, according to Erica F. and Ms. McCoy, Mother
demonstrated little interest in caring for the Child during visits. Furthermore, it is
undisputed that Mother was incarcerated several times after the Child was placed into foster
care, and she had an outstanding arrest warrant in Lawrence County at the time of trial for
violating her parole.
Based on this and other evidence in the record, the trial court found Mother failed
to manifest an ability and willingness to assume custody because she “ha[d] been absent in
his life for a lengthy period of time and provided very little in the way of financial or
emotional support.”
As for the second prong, the trial court found that placing the Child in Mother’s
custody would pose a risk of substantial harm to the Child’s welfare because, inter alia,
the Child had been with his foster mother since he was three months old. As a consequence,
Mother is a near-stranger to the Child. Further, Ms. Goolsby testified that removing the
Child from his placement would be “deeply traumatic.”10 She explained that the Child is
“very, very bonded” with his foster mother.
We have held that “forcing the child to begin visitation with a near-stranger would
make psychological harm sufficiently probable” for the purposes of Tenn. Code Ann. § 36-
1-113(g)(14). In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 WL 4200088, at *17
(Tenn. Ct. App. July 22, 2020) (citations omitted), appeal denied (Dec. 10, 2020). We have
also held that “placing [a child] with a parent who has not shown the ability and willingness
to abide by the law would put them at a substantial risk for harm.” In re Brayden E., No.
M2020-00622-COA-R3-PT, 2020 WL 7091382, at *5 (Tenn. Ct. App. Dec. 4, 2020).
Following a close review of the record and having made our own determination, we
agree with the trial court’s findings, which are supported by a preponderance of the
evidence and which amount to clear and convincing evidence to establish this ground.
Accordingly, we affirm the trial court’s ruling on this ground.
In summation, we affirm the trial court’s determination that four grounds were
established based on clear and convincing evidence, they being the ground of abandonment
by failure to provide a suitable home under Tenn. Code Ann. §§ 36-1-102(1)(A)(ii), the
ground of substantial noncompliance with the statement of responsibilities in the
permanency plan under Tenn. Code Ann. § 36-1-113(g)(2), the ground of persistence of
conditions under Tenn. Code Ann. § 36-1-113(g)(3), and the ground of failing to manifest
either the ability or willingness to personally assume custody or financial responsibility of
the Child under Tenn. Code Ann. § 36-1-113(g)(14). Conversely, we reverse the trial
court’s determinations that DCS proved the grounds of abandonment by failure to visit,
10
The trial court found that Ms. Goolsby was qualified to testify as an expert on childhood trauma.
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abandonment by failure to support, and that Mother’s “mental condition [was] presently so
impaired” so as to warrant terminating her parental rights.
In that at least one ground for termination was proven, we shall now conduct the
best interest analysis.
III. BEST INTEREST ANALYSIS
Having determined that DCS proved at least one ground for termination, we next
consider whether termination was in the Child’s best interest. See Tenn. Code Ann. § 36-
1-113(c). In In re Gabriella D., the Tennessee Supreme Court summarized the law
pertaining to this analysis:
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).11
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
11
Tenn. Code Ann. § 36-1-113(i) has been amended and the best interest factors to be considered
have been revised. See Act of April 22, 2021, ch. 190, § 1, 2021 Tenn. Pub. Acts ---- (to be codified as
amended at Tenn. Code Ann. § 36-1-113(i)). The amended statute applies to petitions for termination that
are filed on or after April 22, 2021; thus, the new factors does not apply to this case.
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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.
531 S.W.3d 662, 681–82 (Tenn. 2017).
When the trial court entered its order terminating Mother’s parental rights, Tenn.
Code Ann. § 36-1-113(i) included nine factors:
(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
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(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.
The trial court found that all nine factors applied and supported terminating
Mother’s parental rights. Although we find some of these factors more applicable than
others, we agree with the trial court’s findings and overall conclusion that termination was
in the best interests of the Child.
The trial court found that Mother had not made an adjustment as to make it safe and
in the Child’s best interest to be in her home because, inter alia, Mother was “not drug free,
d[id] not have stable housing or income, . . . and continues to engage in criminal behavior.”
The trial court found Mother had not maintained regular visitation and had no meaningful
relationship with the Child based on Erica F.’s testimony that “[m]other’s contact was
sporadic at best” and that “when Mother comes to family gatherings where the [C]hild is
present[,] Mother does not acknowledge [him].”
The trial court also found “changing caregivers at this stage of [the Child’s] life will
have a detrimental effect on him” based on Ms. Goolsby’s testimony “that placing the
[C]hild back with [Mother] would cause permanent[,] irreparable harm to the [C]hild.” The
court noted Erica F.’s testimony that the Child is thriving and has become a part of the
family. In contrast, the court found Mother’s home was not healthy and safe based on her
continued drug use and criminal activity. The trial court also found Mother had not paid
support as ordered.
The evidence preponderates in favor of the trial court’s findings, and we agree with
the trial court’s conclusion that the combined weight of the facts and findings amounted to
clear and convincing evidence that termination was in the Child’s best interests.
IN CONCLUSION
Having determined that clear and convincing evidence proves that statutory grounds
for termination of Mother’s parental rights exist and that termination is in the Child’s best
interest, see Tenn. Code Ann. § 36-1-113(c) and In re Valentine, 79 S.W.3d at 546, we
affirm the termination of Mother’s parental rights.
Costs of appeal are assessed against Mother, Kiona F.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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