In Re Destaney D.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 14, 2015 Session
IN RE DESTANEY D. ET AL.
Appeal from the Juvenile Court for Rhea County
No. 11-JV-39 James W. McKenzie, Judge
No. E2014-01651-COA-R3-PT – Filed June 23, 2015
This is a termination of parental rights action involving two minor children,
Destaney D. and Rebekah D. (―the Children‖). In April 2012, the Tennessee Department
of Children’s Services (―DCS‖) removed the Children from their mother due to her drug
use. The Children were allowed to remain in the care of Amy M. and Jeremy M., a
married couple with whom the Children had been residing following their mother’s
arrest. On February 21, 2014, Amy M. and Jeremy M. (―the Petitioners‖) filed a petition
to terminate the parental rights of the Children’s parents. The petition alleged, as a
statutory ground for termination, abandonment by willful failure to support. The
Petitioners subsequently filed an amended petition alleging the additional statutory
ground of persistence of the conditions leading to removal. Despite being properly
served with process, the Children’s mother failed to answer the petition or otherwise
make an appearance in this matter. The trial court accordingly terminated her parental
rights by default judgment entered on July 21, 2014. She is not a party to this appeal.
Following a bench trial on the merits, the trial court granted the petition as to the father
upon finding that the Petitioners had proven by clear and convincing evidence the
grounds of (1) abandonment by willful failure to support and (2) persistence of the
conditions leading to removal. The court also found clear and convincing evidence that
termination of the father’s parental rights was in the Children’s best interest. The father
has appealed. Having determined that the statutory ground of persistence of conditions is
inapplicable to the present action, we reverse the trial court’s determination as to this
ground. We affirm the trial court’s judgment in all other respects, including the
termination of the father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in part, Reversed in part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.
Larry G. Roddy, Dayton, Tennessee, for the appellant, William D.
Randy Sellers, Cleveland, Tennessee, for the appellees, Amy M. and Jeremy M.
OPINION
I. Factual and Procedural Background
William D. (―Father‖) is the biological father of two children: Destaney D., now
age fourteen, and Rebekah D., now age twelve. In April 2012, while the Children were
in the legal custody of their mother, DCS received a referral regarding allegations of drug
abuse by the mother. Upon investigation, those allegations were sustained. The
Children’s mother had also been arrested, apparently leaving the Children with no
caretaker. As a result, the Children had been residing with the Petitioners, with whom the
Children had become acquainted at church.
Upon learning of DCS’s involvement with the Children, Father and Laura D.,
Father’s current wife, picked up the Children from school and transported them to the
home that Father and Laura D. shared. Because the DCS caseworker had received
information that Father might also be involved with drugs, she visited Father’s home and
sought drug tests from both Father and Laura D. Father admitted to the caseworker that
he had been receiving unprescribed hydrocodone from a co-worker on a regular basis for
approximately one year. Father claimed that he was taking the hydrocodone to treat back
pain. In turn, the caseworker performed a drug screen, which confirmed that opiates
existed in Father’s system. In addition, Laura D. submitted to a drug screen and tested
positive for amphetamines, opiates, methadone, propoxyphene, and marijuana.
Consequently, DCS returned the Children to the Petitioners’ home. An immediate
protection agreement was entered on April 16, 2012, wherein the parents consented to
allow the Children to remain in the custody of the Petitioners until the parents could
complete the requirements of their permanency plans.
Over the course of the next two years, the Children resided with the Petitioners
and participated in some co-parenting time with Father. Father acknowledged at trial that
he was employed throughout most of this time period and had been ordered to pay child
support of fifty dollars per week directly to the Petitioners. During a hearing held in June
2013, Destaney testified, inter alia, that she had witnessed the presence of drugs inside
Father’s home. At the conclusion of the June 2013 hearing, the trial court ordered Father
to submit to a drug and alcohol assessment within fifteen days. The court also ordered
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Father to submit to a weekly drug screen at the DCS office.
The Petitioners filed their termination of parental rights petition on February 21,
2014. The Petitioners alleged that Father had abandoned the Children by willfully failing
to support them for more than four months preceding the date of the filing of the petition.
In their amended petition, filed on March 4, 2014, the Petitioners alleged the additional
statutory ground of persistence of conditions leading to removal of the Children.
Following a bench trial conducted on July 9, 2014, the court terminated the parental
rights of Father based on abandonment for failure to support and persistence of
conditions. Father has appealed.
II. Issues Presented
Father presents the following issues for our review, which we have restated
slightly:
1. Whether DCS made reasonable efforts to reunite the Children with
Father.
2. Whether the trial court erred in terminating the parental rights of
Father based on abandonment for failure to support.
3. Whether the trial court erred in terminating the parental rights of
Father based on persistence of conditions leading to the Children’s
removal.
4. Whether the termination of Father’s parental rights is in the best
interest of the Children.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine
―whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.‖ In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); 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. In re
Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
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disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002).
―Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.‖ Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that ―this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.‖ In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in a
termination proceeding under Tenn. Code Ann. § 36-1-113, the persons
seeking to terminate these rights must prove all the elements of their case
by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re
Adoption of A.M.H., 215 S.W.3d at 808-09; In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002). The purpose of this heightened burden of proof is to
minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In re Tiffany
B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re M.A.R., 183 S.W.3d
652, 660 (Tenn. Ct. App. 2005). Clear and convincing evidence enables
the fact-finder to form a firm belief or conviction regarding the truth of the
facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and
eliminates any serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State Dep’t of
Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct.
App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Reasonable Efforts Toward Reunification
Father asserts that the Petitioners failed to demonstrate that DCS had expended
reasonable efforts to reunite him with the Children. As our Supreme Court has recently
elucidated, however:
[I]n a termination proceeding, the extent of DCS’s efforts to reunify the
family is weighed in the court’s best-interest analysis, but proof of
reasonable efforts is not a precondition to termination of the parental rights
of the respondent parent. As with other factual findings made in
connection with the best-interest analysis, reasonable efforts must be
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proven by a preponderance of the evidence, not by clear and convincing
evidence. 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. See
In re Adoption of Kleshinski, No. M2004-00986-COA-R3-CV, 2005 WL
1046796, at *17 (Tenn. Ct. App. May 4, 2005) (citing In re M.J.B., 140
S.W.3d 643, 654 (Tenn. Ct. App. 2004)), see also In re Giorgianna H., 205
S.W.3d at 516; Tenn. Dep’t of Children’s Servs. v. T.M.B.K., 197 S.W.3d
282, 288 (Tenn. Ct. App. 2006).
In re Kaliyah S., 455 S.W.3d 533, 555-556 (Tenn. 2015). Therefore, we will consider the
efforts made by DCS to reunite Father with the Children as we specifically address the
best interest of the Children in the final section of this opinion.
V. Statutory Abandonment
In its judgment terminating Father’s parental rights, the trial court found clear and
convincing evidence establishing Father’s willful failure to support the Children.1 Father
admitted during his trial testimony that he maintained a duty to pay child support of fifty
dollars per week pursuant to an existing court order.
Tennessee Code Annotated § 36-1-113 (2014) lists the statutory grounds for
termination of parental rights, providing as follows in pertinent part:
(a) The chancery and circuit courts shall have concurrent jurisdiction with
the juvenile court to terminate parental or guardianship rights to a child in a
separate proceeding, or as a part of the adoption proceeding by utilizing any
grounds for termination of parental or guardianship rights permitted in this
part or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence
1
We note that Father failed to raise this as an issue in his appellate brief. This Court has previously held that
because ―[o]nly one ground must be proven for termination of parental rights[,] [a] parent’s failure on appeal to
challenge one ground for termination when multiple grounds were found by the trial court relieves us of the need to
review grounds.‖ In re Autumn L, No. E2014-01240-COA-R3-PT, 2015 WL 3378869 at *7 (Tenn. Ct. App. May
26, 2015). However, due to the constitutional dimension of Father’s parental rights at issue, we have chosen to fully
review and address this ground.
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that the grounds for termination of parental or guardianship
rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in
the best interests of the child.
Regarding abandonment through willful failure to support, Tennessee Code Annotated §
36-1-113(g)(1) provides, as a statutory ground for termination:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred . . . .
Tennessee Code Annotated § 36-1-102(1)(A) (2014) defines abandonment, in relevant
part, as:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent or parents or the guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians either have willfully failed to
visit or have willfully failed to support or have willfully failed to make
reasonable payments toward the support of the child . . . .
Pursuant to the statute, the court must find that a parent’s failure to visit or support
was willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court
has previously explained:
The concept of ―willfulness‖ is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either
―willfully‖ failed to visit or ―willfully‖ failed to support the child for a
period of four consecutive months.
In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005).
Failure to visit or support a child is ―willful‖ when a person is ―aware of his or her
duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no
justifiable excuse for not doing so.‖ Id. at 864. Further, failure to visit or to support is
not excused by another person’s conduct ―unless the conduct actually prevents the person
with the obligation from performing his or her duty . . . or amounts to a significant
restraint of or interference with the parent’s efforts to support or develop a relationship
with the child.‖ Id.
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This Court further explained:
The willfulness of particular conduct depends upon the actor’s intent.
Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
peer into a person’s mind to assess intentions or motivations. Accordingly,
triers-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct.
Id. (citations omitted).
This Court has often held that a parent’s demeanor and credibility as a witness
play ―an important role in determining intent, and trial courts are accordingly in the best
position to make such determinations.‖ In re Adoption of Destiny R.D., No. M2011-
01153-COA-R3-PT, 2012 WL 1066496 at *7 (Tenn. Ct. App. Mar. 27, 2012) (citing In
re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003)). Further, as Tennessee Code Annotated §
36-1-102(1)(G) expressly provides: ―[I]t shall not be required that a parent be shown to
have evinced a settled purpose to forego all parental rights and responsibilities in order
for a determination of abandonment to be made.‖
The trial court specifically determined that Father had abandoned the Children
based upon his willful failure to support them during the statutorily determinative period
established as the four consecutive months immediately preceding the filing of the
petition: October 20, 2013 to February 20, 2014. See In re Jacob C. H., No. E2013-
00587-COA-R3-PT, 2014 WL 689085 at *6 (Tenn. Ct. App. Feb. 20, 2014) (―the
applicable four month window for determining whether child support has been paid in the
context of the ground of willful failure to support includes the four months preceding the
day the petition to terminate parental rights is filed but excludes the day the petition is
filed.‖). Father asserts that he did financially support the children because he contributed
fifty dollars toward the purchase of a dress for Destaney in December 2013, spent two
hundred dollars on clothes and a Halloween outfit for the Children in October 2013, and
purchased electronic tablets for the Children as Christmas 2013 presents. Father testified
that he could not pay more because he ―was paying $50 a week to take drug classes and
bankruptcy was taking [his] whole check.‖ The Petitioners denied that Father gave them
any money in December 2013 and further clarified that Father’s purchase of a few items
of clothing for the Children occurred in August 2013.
Father admitted that he was gainfully employed at a Kentucky Fried Chicken
restaurant during the determinative time period. Despite Father’s claims regarding his
bankruptcy proceedings, he acknowledged that he did not inform his bankruptcy attorney
that he was obligated to pay child support. Further, he did not follow through with the
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bankruptcy proceedings. Father also admitted his receipt of a $4,000 federal tax refund
sometime in 2013.
The Petitioners testified that during the four months preceding the filing of the
termination petition, Father paid no more than one fifty-dollar support payment. Amy M.
testified that she and her husband received the fifty-dollar payment from Father in ―mid-
October.‖ The evidence is therefore unclear whether this payment was in fact made
within the determinative period, which did not begin until October 20, 2013. Further,
Father was unable to demonstrate that he had paid any support during the relevant period
other than one payment sent in late September or early October 2013. Therefore, based
upon our thorough review of the record, we conclude that the trial court properly found
clear and convincing evidence of this statutory ground for termination of parental rights.
Under the circumstances of the case at bar, one payment during the determinative period
would, at most, constitute mere token support. See Tenn. Code Ann. § 36-1-102 (1)(B)
(defining ―token support‖ as ―support, under the circumstances of the individual case,
[which] is insignificant given the parent’s means‖).
VI. Persistence of Conditions Leading to Removal
Tennessee Code Annotated § 36-1-113 (g) (2014) provides the following as an
alternate ground for termination of parental rights:
(3) The child has been removed from the home of the parent or guardian by order
of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions
that in all reasonable probability would cause the child to be
subjected to further abuse or neglect and that, therefore, prevent the
child’s safe return to the care of the parent or parents or the guardian
or guardians, still persist;
(B) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent or
parents or the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a
safe, stable and permanent home . . . .
The legal deficiency concerning the trial court’s determination regarding this
ground for termination lies in the fact that the Children were not removed from Father’s
8
home. The testimony at trial established that the reason for the Children’s removal was
drug abuse by the mother when the Children were in the mother’s custody. While the
caseworker did testify that the Children could not be placed with Father due to Father’s
drug use, the record contains no order removing the Children from Father’s home. As
this Court has explained in a factually similar case:
[T]he Children were not removed from Father’s home. Moreover, foster
care worker Crook testified unequivocally at the termination hearing that
the reason for the Children’s removal was the environmental neglect
resulting from the dangerous and unsanitary conditions at Mother’s
residence. In the recent case of In re Maria B.S., 2013 WL 1304616, we
were presented with a similar situation where a father’s parental rights were
terminated on a finding of persistence of conditions and the children had
not been removed from his home. We stated as follows:
Father was incarcerated at the time of the Children’s birth.
No one removed the Children from Father—he never had the
Children in the first place. There is case precedent to support
Father’s position that, without removal from that parent’s
home, the ground of persistent conditions is inapplicable. See
In re T.L., No. E2004-02615-COA-R3-PT, 2005 WL
2860202, at *7 (Tenn. Ct. App. Oct. 31, 2005), Rule 11 appl.
perm. appeal denied Feb. 17, 2006; In re D.L.B., No. W2001-
02245-COA-R3-CV, 2002 WL 1838147, at *9 (Tenn. Ct.
App. Aug. 6, 2002), rev’d on other grounds, 118 S.W.3d 360
(Tenn. 2003); In re B.P.C., M2006-02084-COA-R3-PT, 2007
WL 1159199, at *7 (Tenn. Ct. App. April 18, 2007), no appl.
perm. appeal filed.
In re K.M.K., No. E2014-00471-COA-R3-PT, 2015 WL 866730 at *7 (Tenn. Ct. App.
Feb. 27, 2015).
As in the In re K.M.K. decision, we hold that the statutory ground of persistence of
conditions is not applicable to Father under the circumstances presented here inasmuch as
the record contains no court order removing the Children from Father’s home. We note
that the Petitioners recently filed a Motion to Supplement the Appellate Record in this
Court, attaching an order entered by the trial court on November 8, 2012, wherein the
Children were found to be dependent and neglected. The Petitioners assert that this order
demonstrates that the Children were removed from Father’s home. We grant the motion
seeking to supplement the appellate record with the November 8, 2012 order, noting that
Father did not object to its consideration. The inclusion of this order in the appellate
9
record does not change the resolution of this issue, however, because it does not establish
that the Children were removed from the home of Father. The order states in pertinent
part:
Upon agreement by the mother, the Court found that sufficient
evidence exists to find the minor children, Destaney and Rebekah,
dependent and neglected pursuant to T.C.A. §37-1-102(B); it is contrary to
the children’s best interest to remain in the home; it was reasonable to make
no effort to maintain the children in the home due to the circumstances of
the family and the children; there was no less drastic alternative than
removal; and it currently is in the best interest of the minor children to
remain in the custody of [the Petitioners].
As to the father, [William D.], the Court reserved a finding at this
time. [Father] and his wife, Laura, are to complete an alcohol and drug
assessment with Brenda Thomas at Restoration Counseling within 15 days.
When the Court has received the assessment[s] and reviewed them, the
Court will set a return date.
In this order, the trial court clearly found that the Children were dependent and
neglected while in the custody of their mother, but it made no such finding with regard to
Father. Instead, the court reserved that issue for further hearing. Accordingly, there
exists no order in the record that removes the Children from Father’s home. We must
therefore reverse the trial court’s finding as to persistence of conditions as a statutory
ground for terminating Father’s parental rights due to the absence of such an order.
VII. Best Interest of Children
When at least one ground for termination of parental rights has been established,
as here, the petitioners must then prove, by clear and convincing evidence that
termination of the parent’s rights is in the child’s best interest. See White v. Moody, 171
S.W.3d 187, 192 (Tenn. Ct. App. 1994). When a parent has been found to be unfit by the
establishment of a ground for termination, the interests of parent and child diverge, and
the focus shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877.
Further, the best interest of a child must be determined from the child’s perspective and
not the parent’s. White, 171 S.W.3d at 194.
Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:
(1) Whether the parent or guardian has made such an adjustment of
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circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
In analyzing the best interest factors, the trial court concluded at the close of all
proof that ―it is in the best interest that the children be – that [Father’s] rights to the
children be terminated because the children deserve better than what’s been provided by
[Father] or his wife.‖ The court noted that Father and his wife were still married despite
her having tested positive for controlled substances. The court also found that the
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Petitioners had provided for all of the Children’s needs while Father had failed to do so.
Further, the court considered the Petitioners’ obvious love for the Children. The trial
court ultimately determined by clear and convincing evidence that it was in the
Children’s best interest to terminate Father’s parental rights. We agree.
Our review of the evidence in light of the statutory factors listed above reveals that
Father did not demonstrate that he had made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the Children’s best interest to be in his
home. Father repeatedly failed drug screens or failed to submit to drug screens during the
time the Children were in the Petitioners’ custody. At the termination hearing in July
2014, Father testified that he had participated in ―drug classes,‖ but the proof showed that
he had failed a drug screen that was administered in February 2014, close in time to the
filing of the termination petition. Father repeatedly claimed that he had valid
prescriptions but failed to produce them. When questioned at trial regarding whether he
thought he had a drug problem, Father replied that he did not. The evidence does not
preponderate against the trial court’s finding that Father had failed to address his
substance abuse problem.
Father also did not demonstrate that he had effected a lasting adjustment after
reasonable efforts made by social service agencies. DCS was the only social service
agency shown to be involved in this case, having received a referral in April 2012
regarding the mother’s drug abuse, which led to DCS’s petitioning the trial court for a
finding of dependency and neglect. Father argues that DCS did not make reasonable
efforts to reunite him with the Children. Specifically, Father testified that at a previous
hearing, ―the DCS lady sat here and testified that I came to Dayton DCS office and I
asked for a drug test and she testified that she could not drug test me.‖
This Court has previously stated that ―[r]easonable efforts entail more than simply
providing parents with a list of service providers and sending them on their way. The
Department’s employees must use their superior insight and training to assist parents with
the problems the Department has identified . . . .‖ In re Kaliyah S., 455 S.W.3d at 556
(quoting In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326 at *7 (Tenn.
Ct. App. Mar. 9, 2004)).
In the instant case, the preponderance of the evidence indicates that DCS made
reasonable efforts to assist Father in this matter. DCS has been involved in this case
since its inception in April 2012 when the Children were removed from the mother’s
custody and an agreement was entered, with the parents’ consent, allowing the Children
to reside with the Petitioners. DCS entered into permanency plans with the parents and
provided referrals for drug and alcohol assessments for Father and his wife. DCS
workers further testified that they attempted to contact Father on several occasions to
12
administer the court-ordered drug screens but that they were unable to reach him. On
rare occasions when the DCS workers were able to speak to Father and set up
appointments, he did not keep the appointments. Father only submitted to one drug
screen requested by DCS, that being in November 2013 after a DCS employee made a
surprise visit to his residence. Father tested postive for opiates on that occasion. Father
admitted that although he had been admonished by the trial court following a hearing in
December 2013 to demonstrate that he was drug-free and then file a petition to re-
establish visitation if he wished to request a return of his Children, he never did so.
Father acknowledged that while he did undergo the court-ordered alcohol and drug
assessment, he received some treatment for his drug problem. Notwithstanding, he tested
positive for opiates at the approximate time the termination petition was filed. Ergo,
despite the efforts of DCS, Father demonstrated no lasting adjustment of circumstance,
conduct, or conditions.
The evidence did not establish that Father exercised regular visitation with the
Children or whether there existed a meaningful relationship between Father and the
Children. Destaney testified regarding her observation of the presence of drugs in
Father’s home. She stated that although she loved Father, she did not agree with the
decisions he had made. Moreover, Destaney explained that when she confronted Father
concerning his drug use, he replied, ―it’s not [your] problem, it won’t hurt [me], don’t
worry about it.‖ A change of caretakers would likely have a negative effect on the
Children’s emotional and psychological condition, based on Destaney’s testimony that
she wished to remain with the Petitioners. In this regard, Amy M. testified that she and
her husband loved the Children and wished to adopt them. She also testified that the
Children were thriving in their care.
Regarding the remaining factors, there was no proof that Father or anyone residing
with him had shown abuse or neglect toward the Children, except through the use of
illicit drugs by Father and his wife. There were concerns raised, however, about Father
sleeping in the same bed as the female Children. Due to his drug use, Father could not
show his home to be healthy and safe for the Children. Finally, as reviewed above,
Father failed to pay regular support for the Children.
Based on our review of the evidence in light of the statutory factors, we conclude
that the trial court did not err in finding clear and convincing evidence that termination of
Father’s parental rights was in the best interest of the Children. We affirm the trial
court’s determination regarding the Children’s best interest.
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VIII. Conclusion
For the reasons stated above, we affirm the judgment of the trial court terminating
the parental rights of Father based on the ground of abandonment by willful failure to
support the Children. We reverse the trial court’s finding regarding the ground of
persistence of conditions, as this statutory ground cannot apply. The trial court’s
judgment terminating Father’s parental rights is affirmed in all other respects. Costs on
appeal are taxed one-half to the appellant, William D., and one-half to the appellees, Amy
M. and Jeremy M. This case is remanded to the trial court, pursuant to applicable law,
for enforcement of the trial court’s judgment and collection of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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