In re Domingo W.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 09, 2015 Session
IN RE DOMINGO W., ET AL.
Appeal from the Chancery Court for Shelby County
No. CH1301991 Walter L. Evans, Chancellor
________________________________
No. W2014-01435-COA-R3-PT – Filed July 23, 2015
_________________________________
In this termination of parental rights case, Mother appeals the trial court‟s findings of
incompetency and persistence of conditions as grounds for termination. Mother also appeals
the trial court‟s conclusion that termination was in the children‟s best interest. We affirm the
trial court‟s findings as to both grounds for termination. We also affirm the trial court‟s
finding that termination is in the best interest of the children. Accordingly, we affirm the
termination of Mother‟s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., and BRANDON O. GIBSON, J., joined.
Shantell S. Suttle, Cordova, Tennessee, for the appellant, Samantha W.
Herbert H. Slatery, III, Attorney General and Reporter; Paul Jordan Scott, Assistant Attorney
General; for the appellee, State of Tennessee, Department of Children’s Services.
OPINION
Background
Samantha W.1 (“Mother”) is the mother to two children, Jamarcus W. and Domingo
W.2 Jamarcus was born to Mother in February 2009. Domingo was born to Mother in
September 2011.3 At the time of trial in this matter, Jamarcus was five years old, and
Domingo was two years old.
Mother has a lengthy history with the Tennessee Department of Children‟s Services
(“DCS”) and foster care. Due to abandonment by her own mother and relatives, Mother
herself most recently entered DCS custody on March 29, 2011 at age seventeen while
pregnant with Domingo. At this time, Mother‟s only child was then two-year-old Jamarcus,
who also entered DCS‟s custody via a voluntary placement agreement in which Mother
relinquished legal custody. While in DCS‟s legal custody, both Mother and Jamarcus resided
with Vonetta J. (“Foster Mother”) and Greg J. (“Foster Father,” collectively, “Foster
Parents”).4
Throughout the next several months, Mother underwent a series of assessments,
counseling sessions, and medical appointments facilitated by DCS.5 During May and June
2011, Mother was admitted to participate in individualized counseling at Youth Villages. Her
counseling sought to address her problems with “anger management, defiant behaviors,
inappropriate sexual behaviors, physical aggression, truancy, verbal aggression, and low
parenting skills.” For example, in one assessment, Youth Villages noted that Mother often
threatened to hit Jamarcus when he did not comply with her directions.
In addition, Mother was admitted to Saint Francis Hospital in August 2011 when she
was eight months pregnant with Domingo. She presented with depression and suicidal
ideation after threatening to kill herself. Mother was diagnosed with several disorders,
1
In cases involving minor children, it is the policy of this Court to remove the names of minor children
and other parties in order to protect their identities.
2
The record indicates that Mother has a third child, who currently lives with a relative. This child is
not at issue in this matter.
3
No father was listed on either child‟s birth certificate, and neither child‟s father appeared at any point
during these proceedings. Accordingly, Mother is the sole appellant.
4
The record indicates that Mother resided in as many as seven foster homes, but many placements
were disrupted because of Mother‟s aggressive behavior. Foster Parents were her final placement as a minor.
However, as discussed infra, Mother returned to foster care after she reached majority and resided with another
foster family for a brief time. At some point, DCS attempted to reach out to Mother‟s relatives to obtain
assistance for her to no avail.
5
Mother‟s medical and counseling records do not appear as separate documents in the record; rather,
the information regarding these records appears in Dr. Mindy Kronenberg‟s Psychological Evaluation of
Mother. Mother did not dispute the validity of Dr. Kronenberg‟s classification of these records entered at trial.
2
including “Depressive Disorder[], ADHD, Conduct Disorder – Adolescent Onset,” and was
subsequently discharged after ten days.
In August 2011, Mother participated in two additional psychological evaluations. The
first evaluation occurred at the Center of Excellence at the University of Tennessee Health
Sciences Center (“UTHSC”). This psycho-educational evaluation determined that Mother
had a mild intellectual disability, and her functioning, judgment, and decision making skills
were similar to that of an eight- to ten-year-old child. A second evaluation by UTHSC, a
psychiatric evaluation, determined that Mother was a “young woman who has lived a
„chaotic, unstable, neglectful‟ life which has resulted in „difficulty with impulse control,
judgment, and keeping herself and her children safe.‟” Ultimately, the evaluator found that
Mother would be unable to gain significant parenting abilities even with support.
Subsequently, Mother, still a minor, gave birth to Domingo while residing with Foster
Parents. In September 2011, several days after Domingo‟s birth, Magistrate David Ferguson
of the Shelby County Juvenile Court signed a Protective Custody Order removing both
children from Mother‟s custody. The Protective Custody Order provided that both a DCS
case manager and Foster Parents witnessed Mother inappropriately disciplining Jamarcus.
Further, the order provided that the case manager and Foster Parents attempted to address
these issues with Mother, but the behaviors continued. Specifically, according to the order,
Mother became angry with Foster Parents and pushed Jamarcus to the floor, resulting in a
knot on the back of his head. The order also made note of Mother‟s admittance to Saint
Francis hospital stemming from her threats to commit suicide and also kill her then-unborn
child, Domingo. Although the precise dates are unclear from the record, it appears that DCS
continued providing services to Mother at the time her children entered temporary DCS
custody.
In support of the protective custody order, the juvenile court also discussed the
intellectual and adaptive functioning evaluations performed on Mother by UTHSC in August
2011. According to the protective custody order, the findings produced by the evaluation
showed that Mother‟s “mildly delayed cognitive functioning and low adaptive skills support
a diagnosis of intellectual disability, mild. . . . Without a great deal of permanent support and
supervision, [Mother] will not be able to adequately care for her older child or her newborn
baby.” Further, the magistrate‟s order provides that Mother‟s judgment, planning, and
decision-making skills were that of an eight- to ten-year-old child according to her
evaluation. Accordingly, temporary legal custody of Jamarcus and Domingo was awarded to
DCS. Despite the alteration of custody, it appears that DCS continued to provide Mother with
various services related to guidance on parenting, individual counseling, and the facilitation
of regular visitation.
3
Mother turned eighteen years old in October 2011, which would typically cause her to
“age out” of foster care. However, DCS was working with Mother to get into an assistance
program administered by the Department of Intellectual and Developmental Disabilities
(“DIDD”). Because DCS was still providing continuing assistance to Mother, she was
permitted to reside with Foster Parents in an “extension of foster care.” Mother did so until
December 2011 when she opted out of the extension. At this time, she told DCS that she was
moving in with her thirty-eight-year old boyfriend, the father of Domingo.
Around this time, Mother participated in a Health Connect Parenting Assessment
provided by DCS, although the date is unclear from the record. At the time of this
assessment, Mother was eighteen years old, had stopped living with Foster Parents, and had
moved in with her boyfriend. The evaluator noted that Mother was able to verbally express
how to properly care for the children. However, the evaluator noted that Mother did not
invite her into the apartment, nor did Mother appear to have access to a car seat for the
children.6 The evaluator was ultimately unable to complete the evaluation because she was
unable to contact Mother to presumably arrange another meeting. She did conclude, however,
that she had concerns with Mother‟s living situation as well as about her ability to effectively
parent the children.
When Mother moved out of her boyfriend‟s home approximately three weeks after
moving in, she decided she wanted to opt back into an extension of foster care, which DCS
permitted. She also expressed a desire to attempt to get into the DIDD program again. At this
time, Mother was placed with another foster family, the B. family. However, yet again, she
later opted out of the extension of foster care. In January 2012, she contacted DCS again and
informed them that she was homeless. DCS contacted DIDD and “told them her situation was
critical.” Mother was subsequently accepted into DIDD, which helped Mother obtain housing
in Jackson, Tennessee.7 Unfortunately, one of the requirements for Mother‟s current housing
is that her children cannot reside with her. In addition, DIDD assisted Mother with obtaining
a conservator to manage her financial affairs.
Although still maintaining contact with Mother, DCS filed a petition to adjudicate the
children as dependent and neglected at some point, and the petition was heard on May 18,
6
The importance of the car seat is unclear. First, Mother testified that she does not have a vehicle.
Second, the children were not in her custody at this time.
7
Testimony indicates that DIDD also works with an agency called A-Plus Solutions. However, it is
unclear how or whether these two entities are related or which services each provided to Mother. Accordingly,
to avoid confusion, we only reference DIDD in the opinion. Any distinction would not alter the outcome of our
Opinion.
4
2012. Shelby County Juvenile Court Judge Curtis S. Person found the children dependent and
neglected. In the order dated May 18, 2012, the juvenile court noted that “Mother‟s current
housing situation prevents her from having custody of her children and that the children are
dependent and neglected as her current residence is unavailable to them.” In addition, the
order provides that it was reasonable for DCS not to make efforts “to maintain the children in
the home due to allegations of environmental neglect.”
On February 12, 2013, DCS filed a Petition for Termination of Parental Rights in
Shelby County Chancery Court.8 As grounds for termination, DCS alleged that (1) Mother
was incompetent to care for and supervise the children and (2) the conditions that warranted
removal of the children persisted and would unlikely be remedied in the near future. DCS
also averred that it was in the children‟s best interest that Mother‟s parental rights be
terminated.
A bench trial was held on July 8 and 9, 2014. Several witnesses testified: Dr. Mindy
Kronenberg, a clinical psychologist; Sharron Nabors, a DCS family service worker; Leuren
Miller, a family care counselor at Youth Villages; Foster Mother; and Mother.
Dr. Kronenberg testified first. She testified that, in her expert opinion, Mother was
mentally incompetent with regard to parenting her two children. Dr. Kronenberg met with
Mother on several occasions spanning nearly eight hours. Dr. Kronenberg admitted that she
had not examined Mother in approximately two years but opined that this passage of time
only equated with the children developing a stronger attachment to Foster Parents. She stated
that Mother “clearly loves her children” but that she did not have the ability to understand
their perspective. For example, when one of the children began crying during a session with
Dr. Kronenberg, Mother became upset with her inability to console the child and relinquished
care back to Foster Mother, who was also present. To Dr. Kronenberg, Mother‟s inability to
understand the children‟s perspective “impedes attachment” and can be associated with abuse
and neglect.
Dr. Kronenberg also testified about Mother‟s Intelligence Quotient (“IQ”). Mother‟s
IQ was measured as 58, which is in the “mild intellectually deficient range.” Further, Mother
also tested low on an adaptive functioning test. Coupled together, the results of these two
scores demonstrate that Mother possesses the judgment of an eight- to ten-year-old child. Dr.
Kronenberg noted, however, that Mother‟s judgment often varied depending on the situation
she was in. Still, she testified that a low or deficient IQ does not equate with an inability to
parent because, for example, it can be associated with a lack of education or otherwise
biased. She explained that many people with a low IQ can parent their children; however, Dr.
8
DCS filed an amended petition on May 7, 2013.
5
Kronenberg opined that Mother was not competent to parent her children based on both her
low IQ and her low adaptive functioning score. To this end, Mother displayed an inability to
motivate herself independently, empathize with her children, and develop a parent-child
relationship. Ultimately, Dr. Kronenberg stated that, “I do not believe [Mother] can take care
of them. I do believe she loves them. I don‟t think she has the functional abilities to take care
of the children.” Dr. Kronenberg‟s Psychological Evaluation of Mother, which was
completed at the request of DCS, was admitted as an exhibit at trial. Ultimately, from her
assessment of Mother, Dr. Kronenberg opined that Mother has made improvements and
would continue to improve in “concrete areas,” but Mother is incompetent as far as “abstract
thinking . . . understanding other people‟s feelings, which leads to helping children
understand their own feelings, which leads them to develop a sense of whole self.” In
addition to opining that Mother was incompetent as far as caring for her children, she also
stated that it was in the children‟s best interest to be adopted by Foster Parents.9
Sharron Nabors, a DCS family service worker, testified next. She became involved
with Jamarcus in March 2011 after allegations of abuse by Mother, and she became involved
with Domingo when he was born in September 2011. Ms. Nabors testified about the efforts
DCS expended in order to reunify Mother with the children, including various assessments,
parenting classes, individual counseling, and regular visitation with the children. DCS also
assisted Mother with applying for Social Security, which was a requirement for admittance to
DIDD. DCS further assisted Mother with obtaining housing in Jackson, Tennessee, through
DIDD. Ms. Nabors explained Mother‟s placement and the services DIDD provided thusly:
They are based on their IQ. If their IQ is a certain thing, and
they require assistance in day-to-day living or assistance with
that, then they can go into that program. It‟s a lifelong program.
They are in the program for forever until they no longer want to
be in the program, but they assist them with housing and to care
for - - pay their bills, take care of themselves, education,
medication, pretty much anything they need help with.
She confirmed that Mother was not allowed to have her children with her while placed in this
program, and she stated that Mother was aware of this prohibition. Through DIDD, Ms.
Nabors explained, Mother was appointed a conservator “because of the irrational
9
It appears that, at some point, Foster Mother suggested an arrangement whereby Mother could
maintain some level of visitation with the children. Dr. Kronenberg also stated that she believed it was in the
best interest of the children for Mother to be able to visit the children if she remained “stable.”
6
decisionmaking she was doing.” Further, according to Ms. Nabors, Mother would not have
been able to support herself without DCS‟s assistance.
Ms. Nabors also testified about her observations of Mother‟s relationship with the
children. She stated that Mother often lost her temper and became easily frustrated, and
“[s]he is easily frustrated because she can‟t deal with them both at the same time.” Mother
often responded by screaming at the children, or “she will just say forget it,” according to
Ms. Nabors. Ultimately, Ms. Nabors testified that the conditions regarding Mother‟s temper
and her inability to appropriately control and supervise the children would not be remedied in
the near future so as to return the children to her home safely.
Ms. Nabors also testified about Mother‟s education, which ended at the eighth grade.10
She explained that Mother‟s biological mother had taken her out of school for some reason
and failed to reenroll her. When Mother came into DCS custody as a teenager,11 DCS
attempted to enroll her in school and took Mother to the truancy office. Mother became upset
with the truancy officer and “said a few things,” and the truancy officer denied her
readmission into the school system. Mother was then referred to a GED program but could
not enroll because she scored poorly on the literacy part of the pre-test to qualify for
placement in the program. Ms. Nabors testified that during DCS‟s attempt to enroll Mother in
the GED program, there was also a program offered “to try to help her improve her reading, .
. . to try to get to a level where she could do GED classes.” Ms. Nabors testified, however,
that Mother “did not participate” in these classes.12 Ms. Nabors explained that several things
contributed to Mother and DCS‟s inability to follow through with any sort of continuation of
Mother‟s education, including Mother‟s frequent “disruptions” of her foster care placement,
her pregnancy, the birth of Domingo, her mental instability, and her resulting ten-day stay at
Saint Francis Hospital.
Turning to the children‟s foster care placement, Ms. Nabors testified that the children
are doing extremely well in their care. She explained that Jamarcus had some anger and
behavioral issues when he was first placed, but he has been “mannerable, sweet, making
10
Mother testified that she “started high school, but didn‟t finish it.” When asked why she did not
continue her high school education, she stated that she, DCS, and her foster parent “got ready to register me,
and the school system said no.”
11
It is unclear if DCS‟s attempt to reenroll Mother in school occurred when Mother first came into
DCS custody at approximately age fourteen or fifteen or when Mother came into DCS custody again at age
seventeen.
12
It is unclear whether Mother‟s lack of participation was caused by DCS or Mother herself. In her
own testimony, Mother denied that DCS attempted to enroll her in a literacy or reading program while in
custody.
7
progress in school” since being placed with Foster Parents. Jamarcus also looks to Foster
Parents as his parents and their biological daughter as his sister. Similarly, Foster Parents are
the only parents Domingo has ever known as he has resided with them since birth. Although
somewhat confusing, Ms. Nabors‟s testimony indicates that both children refer to Mother and
Foster Mother as “mom,” depending on the situation. According to Ms. Nabors, to remove
the children now from the care of Foster Parents would be detrimental to both.
Leuren Miller, a foster care counselor at Youth Villages, also testified about her
observations at Mother‟s four-hour monthly visitations with the children. She explained that
the children had a bond with Mother and were generally happy to see her when they arrived
at visitation. She testified that Mother would often buy gifts and food for the children and
that they enjoyed spending visitation time with Mother at her home. Still, Ms. Miller stated
that Mother currently still struggles to control her temper and often needed to be redirected as
to what was appropriate parenting. As an example, she testified that she had to remind
Mother to supervise the children at a visitation at Chuck-E-Cheese instead of playing the
games herself. She stated that Mother skipped visitation several times, indicating “she would
rather - - it was an event called Africa in April. She said she wanted to go to that and she
would skip this - - would skip [the visitation in April], and she just wanted to visit with the
kids in May.” According to Ms. Miller, Mother would travel to Memphis but then ultimately
prioritize other activities over visitation. It is important to note that the record does not
contain a comprehensive list of the total visitations attended by or missed by Mother. Despite
the issue with missed visitations, Ms. Miller testified that Mother loved the children, the
children loved her, and they shared a bond.
Foster Mother testified next. She testified as to her and her husband‟s willingness to
adopt the children, because “they are some loving kids. They are sweet. They have been in
my home for a while[.]” She stated that the children have become part of her family, and she
and her husband are financially able to care for the children. Additionally, she expressed that
she was comfortable in continuing to provide visitation with Mother even after an adoption,
mainly on holidays and birthdays.
Mother testified last. She generally corroborated much of the above testimony.
However, she testified that the reason the children entered DCS custody was because she had
nowhere else to live and that she was also in DCS custody. Regarding her living situation,
she explained that she can leave DIDD whenever she wants, and she is capable of taking care
of the children on her own. Mother testified that she would be able to provide for the children
using her social security check. When asked whether she had a plan to leave DIDD, she
responded, “I‟m just going to save up and get a job and save up enough money to do it.” She
also confirmed that a house manager is with her around-the-clock to “check up on me and see
what all needs to be done in the house, basically.” Still, Mother is able to utilize public bus
8
transportation and travel to Memphis on her own for visitations. She stated she would be able
to use public transportation to ensure the children attended all of their appointments.
Additionally, although DIDD provides assistance paying her bills, the entirety of her
expenses comes from her own income from Social Security. She testified that she genuinely
loves the children and believes they love her. Mother testified that she believes she has the
mental capacity to provide, care for, and supervise the children.
At the conclusion of the trial on July 9, 2014, the trial court made its oral ruling
terminating Mother‟s parental rights. The trial court entered its written ruling on August 1,
2014. Although the trial court did not incorporate its oral ruling by reference into the written
order, it made similar thorough findings of fact and conclusions of law in its written order
outlining the events leading up to the filing of the termination petition, DCS‟s efforts to work
with Mother, Mother‟s living arrangements, Mother‟s competency, visitation, and the
children‟s needs. Based on these underlying facts, the trial court found that two grounds were
established by clear and convincing evidence: (1) Mother was incompetent to care for and
supervise the children under Tennessee Code Annotated Section 36-1-113(g)(8) and (2) the
conditions warranting removal of the children persisted and prevented the children from
safely returning to Mother‟s care at an early date under Tennessee Code Annotated Section
36-1-113(g)(3)(A). The trial court also found by clear and convincing evidence that
termination of Mother‟s parental rights was in the children‟s best interest pursuant to
Tennessee Code Annotated Section 36-1-113(c)(2).
Mother timely filed this appeal.
Issues
Mother presents three issues for review, as restated from her brief:
1. Whether the trial court erred when it found grounds existed
to terminate Mother‟s parental rights.
2. Whether the trial court erred when it found that DCS had
made reasonable efforts to reunify Mother with her children.
3. Whether the trial court erred when it found that termination
of Mother‟s parental rights was in the best interest of the
children.
Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a fundamental
right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645,
9
651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state
may interfere with parental rights only if there is a compelling state interest. Nash-Putnam,
921 S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination
statutes identify “those situations in which the state‟s interest in the welfare of a child
justifies interference with a parent‟s constitutional rights by setting forth grounds on which
termination proceedings can be brought.” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn.
Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-
R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)). A person seeking to
terminate parental rights must prove both the existence of one of the statutory grounds for
termination and that termination is in the child‟s best interest. Tenn. Code Ann. § 36-1-
113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002).
Because of the fundamental nature of the parent‟s rights and the grave consequences
of the termination of those rights, courts require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination
and the best interest inquiry must be established by clear and convincing evidence. Tenn.
Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing
evidence “establishes that the truth of the facts asserted is highly probable . . . and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
“produces in a fact-finder‟s mind a firm belief or conviction regarding the truth of the facts
sought to be established.” Id.
In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review as set forth in Tennessee Rule
of Appellate Procedure 13(d). As to the juvenile court‟s findings of fact, our review is de
novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn.
R. App. P. 13(d). We must then determine whether the facts, as found by the juvenile court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002). When the resolution of an issue in a case depends upon the truthfulness of witnesses,
the trial judge, who has had the opportunity to observe the witnesses and their manner and
demeanor while testifying, is in a far better position than this Court to decide those issues.
See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any
witness‟s testimony lies in the first instance with the trier of fact, and the credibility accorded
will be given great weight by the appellate court. Walton v. Young, 950 S.W.2d 956, 959
(Tenn. 1997).
10
Analysis
Reasonable Efforts
As an initial matter, we address Mother‟s argument that DCS failed to make
reasonable efforts to reunify Mother with her children. Specifically, Mother argues that DCS
did not enroll Mother in a transitional living program, teach her to care for herself, or provide
her with educational opportunities. Mother asserts that DCS cannot now rely upon Mother‟s
alleged incompetency when it failed to make efforts to increase her competency while she
herself was in DCS custody. Accordingly, we must examine whether DCS was required to
make reasonable efforts toward reunification in this case.
Reasonable efforts by DCS are not one of the elements that must be proven to effect a
termination of parental rights. See Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S, 455
S.W.3d 533, 552–53 (Tenn. 2015) (“Grounds for termination and consideration of the child‟s
best interest are the only two elements expressly listed in Section 36-1-113”). Although
nothing in the language of Section 36-1-113 specifically requires a petitioner to prove
reasonable efforts were made towards reunification, “the language of the statute indicates
only that the trial court is to consider DCS‟s reasonable efforts, or the lack thereof, in
determining whether termination of the parent‟s rights is in the child‟s best interest.”
Kaliyah S., 455 S.W.3d at 554.13 Accordingly, we will consider DCS‟s reasonable efforts in
the context of our best interest analysis.
Grounds for Termination
13
According to the Supreme Court in Kaliyah S.:
Apart from the reference in one of the best-interest factors, the
phrase “reasonable efforts” appears only tangentially in Section 36-1-113.
The definition of one ground for termination, abandonment, mentioned
reasonable efforts. [Tenn. Code Ann.] §§ 36-1-113(g)(1), -102(1)(A)(ii)
[(abandonment by failure to provide a suitable home for the child)]. In
addition, Section 36-1-113 provides that DCS may elect not to file a petition
to terminate parental rights if it has not yet made reasonable efforts to
reunify the parent and child. Id.§ 36-1-113(h)(2)(C). Section 36-1-113 does
not otherwise refer to DCS's obligation to make reasonable efforts to reunify
the child with the parent.
Kaliyah S., 455 S.W.3d at 554 (footnotes omitted).
11
Mental Incompetence
We next address Mother‟s argument that the trial court erred in finding clear and
convincing evidence supported termination on the ground of her mental incompetence.
Mother contends that the improvements to her behavior and her emotional stability preclude
a finding of incompetence. To this end, Mother focuses on the fact that Dr. Kronenberg‟s
evaluation of Mother took place nearly two years prior to the trial in this matter. Further,
Mother notes that Dr. Kronenberg and Ms. Miller (the Youth Villages foster care worker)
stated that it was obvious that Mother loved the children. Additionally, Ms. Nabors (the DCS
family services worker) testified that Mother‟s decision to enter the DIDD program
demonstrated good judgment.
Despite Mother‟s alleged improvements, the trial court still found that Mother‟s
intellectual deficiencies rendered her unable to care for herself or her children presently and
in the near future. Relying heavily on the testimony of Dr. Kronenberg, the trial court
concluded that Mother had a mildly deficient IQ coupled with low adaptive functioning and
inability to empathize with her children. Based on these intellectual deficiencies, the trial
court found incompetence was proven by clear and convincing evidence as Mother would not
be able to resume the care and supervision of the children in the near future.
Regarding incompetency, Tennessee Code Annotated Section 36-1-113(g)(8)(B)
provides:
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 or guardian of the child is incompetent to
adequately provide for the further care and supervision of the
child because the parent‟s or guardian‟s mental condition is
presently so impaired and is so likely to remain so that it is
unlikely that the parent or guardian will be able to assume or
resume the care of and responsibility for the child in the near
future; and
(ii) That termination of parental or guardian rights is in the best
interest of the child[.]
12
Tenn. Code Ann. § 36-1-113. DCS carries the burden of demonstrating by clear and
convincing evidence that “[the parent] is unable to care for the children and that it is unlikely
that [the parent] will be able to do so in the near future.” In re Keisheal, No. M2012-01108-
COA-R3-PT, 2013 WL 440061, at *7 (Tenn. Ct. App. Feb. 4, 2013) (citing Tenn. Code Ann.
§ 36-1-113(g)(8)). Additionally, we note that the statute explicitly states that, for this ground,
“no willfulness” on the part of the parent “need be shown to establish that the parental . . .
rights should be terminated[.]” Tenn. Code Ann. § 36-1-113(g)(8)(C).
Much of the testimony presented at trial revolved around whether Mother was
competent to care and supervise the children. Dr. Kronenberg‟s evaluation of Mother
revealed that Mother‟s intellectual deficiencies prohibited her from empathizing with the
children. In her expert opinion, although people with low IQs can still parent a child,
Mother‟s adaptive functioning precluded her from being able to console, calm, or direct the
children. Dr. Kronenberg further stated that this lack of empathy can be associated with
neglect and abuse. She opined that Mother‟s functioning is similar to an eight- to ten-year-old
child.
Dr. Kronenberg‟s conclusions about Mother‟s competency stem from her analysis of
the various evaluations and assessments she and other professionals performed on Mother.
DCS family service worker Ms. Nabors testified that Mother often had difficulty controlling
her emotions. She testified that Mother “is easily frustrated when dealing with the kids . . .
[S]he gets upset, she screams at them. . . . When things became too difficult, she will just say
forget it. I don‟t want to do it. I can‟t do it. I don‟t want to do it anymore. I don‟t care what
happens.” Ms. Nabors also recounted the efforts DCS made attempting to reenroll Mother in
school and the ultimately successful endeavor to enroll her in DIDD when Mother did not
qualify for the GED test. Despite these efforts, Dr. Kronenberg and Ms. Nabors testified that
Mother is essentially in the position she was several years ago, where she currently requires
constant support with everyday tasks, around-the-clock monitoring, and a financial
conservator. Mother‟s inability to independently care for her own welfare supports the
conclusion that she is incompetent to care for the children. Further, she has no real plan that
she can articulate as to how she intends to resume care of these children in the near future. It
appears her intellectual deficiencies, despite the efforts of DCS, remain unremedied.
Although we note that Dr. Kronenberg‟s findings were borne of her interactions with
Mother almost two years prior to trial, Ms. Miller‟s testimony demonstrates that the concerns
Dr. Kronenberg had with Mother‟s other parenting issues still remain. Ms. Miller testified
that Mother considered her own desires ahead of her children‟s, resulting in missed
visitations or a lack of supervision. Ms. Miller‟s testimony, in our opinion, substantiates Dr.
Kronenberg‟s expert opinion that Mother is still unable to see the children‟s perspective
because of her intellectual deficiencies. There is overwhelming testimony that Mother still
13
remains unable to live independently and still fails to demonstrate an ability to properly care
for and supervise the children. Further, Mother‟s lack of empathy and inability to understand
her children‟s perspective was testified to as occurring as recently as several months before
trial. Unfortunately, these characteristics are associated with abuse and neglect, according to
Dr. Kronenberg, and demonstrate that Mother‟s incompetence is still present. We have no
doubt that Mother‟s strides to overcome her deficiencies have been commendable. Still, the
evidence does not suggest that Mother‟s condition or her living arrangements can be
remedied at any time in the near future so that she could care for her children.
In light of the foregoing, we conclude that DCS has met its burden and proved by
clear and convincing evidence that Mother is (1) presently incompetent and unable to
adequately care for and supervise the children because of her mental impairment and (2) such
mental impairment and incompetence is so likely to remain that it is unlikely that Mother will
be able to adequately care for and supervise the children in the near future.
Persistence of Conditions
Although only one ground must be proven by clear and convincing evidence to justify
termination, the Tennessee Supreme Court has directed this Court to review the findings of
fact and conclusions of law as to each ground for termination, in order to avoid unnecessary
remand. See In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Thus, we next
consider the issue raised by Mother regarding the juvenile court‟s finding of persistence of
conditions.
Mother‟s argument as to this ground focuses on her current living arrangement. She
contends that the choice to live as part of the DIDD program, which does not allow children,
is completely within her discretion. Accordingly, Mother asserts that should her children be
returned to her, she would find adequate housing for both herself and the children. She also
avers that she has improved her situation with regard to her condition when she first began
her history with DCS. She testified that if her children are returned to her, she is able to
provide food, clothing, and shelter using her Social Security income. In addition, Mother
argues that instances of her emotional instability occurred during her minority and were the
result of her own tumultuous upbringing.
The trial court also relied upon Mother‟s incompetency to support the termination of
Mother‟s parental rights on the separate ground of persistent conditions. Accordingly, many
of the trial court‟s findings as to these two grounds overlap. With regard to this ground, the
trial court found that Mother had improved her personal situation slightly but still relied
heavily on external support. In addition to requiring support to manage her housing and
financial affairs, the trial court found that Mother‟s intellectual deficiencies still persist.
14
Despite DCS‟s efforts to facilitate counseling and visitations for Mother, the trial court
concluded that “the conditions which lead to removal still persist and other conditions exist
which in all probability would cause the children to be subjected to further abuse and neglect
and which, therefore, prevent the children‟s safe return to [Mother].” The trial court also
noted that these conditions were likely to remain unremedied and that the continuation of the
parent-child relationship hindered Jamarcus and Domingo‟s integration into a more stable
home.
Persistence of conditions requires the trial court to find, by clear and convincing
evidence, that:
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(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at any early date so that the child can be safely
returned to the parent(s) or guardian(s) 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.
Tenn. Code Ann. § 36-1-113(g)(3).
“A parent‟s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the parent‟s
care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct.
App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-CV, 2000 WL
964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the conditions that led
to the removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6 (citing State
Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990)). “Where . . . efforts to
provide help to improve the parenting ability, offered over a long period of time, have proved
ineffective, the conclusion is 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
purpose behind the “persistence of conditions” ground for terminating parental rights is “to
15
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 A.R., No. W2008-00558-COA-R3-PT, 2008 WL 461675, at *20 (Tenn. Ct.
App. Oct. 13, 2008) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL
588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).
In this case, it is undisputed that both children have been removed from Mother‟s care
for over six months. See Tenn. Code Ann. § 36-1-113(g)(3). Jamarcus, now five years old,
has been living with Foster Parents since he was three years old. Domingo, now two years
old, has been living with Foster Parents since he was born. However, Mother argues that the
record lacks sufficient evidence to support the trial court‟s conclusion that the conditions that
led to the children‟s removal and conditions that otherwise preclude return of the children
still persist and would, in all reasonable probability, subject the children to further abuse or
neglect.
As stated above, clear and convincing evidence in the record supports the trial court‟s
conclusion that Mother is mentally incompetent to care for her children. Furthermore, the
record includes much evidence reflecting on the inability of Mother to ameliorate her current
intellectual deficiencies to the point where it is safe for her to resume care of the children. Dr.
Kronenberg testified that Mother‟s intellectual deficiencies would prohibit her from caring
for her children in the near future. Despite Mother‟s best efforts, Dr. Kronenberg opined that
Mother simply does not have the “abstract capacity” to develop into an adequate caretaker for
her children. Ms. Nabors‟s testimony echoes Dr. Kronenberg‟s, providing that Mother,
despite some improvement, is still too emotionally unstable to parent the children. Both Dr.
Kronenberg and Ms. Nabors agreed that it was unlikely for Mother‟s mental incompetence to
ever improve to the point she would be able to care for the children, much less in the near
future.
The evidence also suggests that Mother has made some strides in obtaining a more
stable home life with DIDD; however, if Mother‟s children were returned to her, she would
be forced to leave DIDD, a program that has no doubt contributed to an increase in stability
for Mother.14 Although we believe that Mother genuinely wants to take care of and provide
for her children, her mental incompetence and inability to adapt to certain situations
precludes her as a caretaker. Even though she testified that she could leave DIDD at any
time, she has no plan other than to “save up and get a job and save up enough money to do
it.” She testified that she also planned to enroll in a school, but that was on a “standstill.”
14
Mother testified that she was aware of these requirements when she was accepted into DIDD‟s
housing.
16
Mother further stated that she planned to work on her anger issues, but she currently was not
in counseling. She remains unaware of the amount of rent she pays each month. All of these
things coupled together demonstrate that Mother remains incompetent, and it is unlikely for
her to overcome such mental deficiencies in the near future. It would be simply illogical to
conclude that Mother would be able to develop such an independent lifestyle conducive to
raising children in a short period of time. We remain sympathetic to Mother‟s intellectual
deficiencies and her history, but with regard to this ground, we must conclude that clear and
convincing evidence exists to prove that Mother‟s incompetence and her inability to care for
her own affairs and her children‟s remain a persistent condition.
Further, although Mother and the trial court focused on Mother‟s current living
arrangement with DIDD, we note that physical abuse played a role in the removal of her
children. Jamarcus, as a toddler in Mother‟s care, suffered a knot on the back of his head
after Mother became upset and pushed him. Upon our de novo review of the record, we
conclude that clear and convincing evidence also exists as to the persistence of Mother‟s
inability to control her emotions, especially her frustration and anger. The testimony of Dr.
Kronenberg, Ms. Nabors, and Ms. Miller all recount specific instances of Mother either
screaming, becoming upset, or otherwise mishandling the children. Although the testimony
shows that these problems could sometimes be remedied if Mother was redirected to display
a calmer response, Ms. Miller testified that Mother would not be able to control or redirect
her emotions without constant supervision if the children were returned to her care.
Accordingly, we conclude that Mother‟s inability to control her temper also persists and
precludes the return of the children to her care.15
Based on the foregoing, we affirm the trial court‟s conclusion that clear and
convincing evidence supports the termination of Mother‟s parental rights on the ground of
persistence of conditions.
Best Interest
When at least one ground for termination of parental rights has been established, the
petitioner must then prove by clear and convincing evidence that termination of the parent‟s
rights is in the child‟s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). When a parent has been found to be unfit (upon establishment of ground(s) for
termination of parental rights), the interests of parent and child diverge. In re Audrey S., 182
S.W.3d at 877. The focus shifts to the child‟s best interest. Id. Because not all parental
15
While Mother‟s inability to control her temper and frustration could stem from her intellectual
deficiencies, it was not specifically relied upon in the trial court‟s order. To this end, we note that the Court of
Appeals may affirm a judgment on different grounds or for different reasons than those relied upon by the trial
court. City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 40 (Tenn. Ct. App. 2004).
17
conduct is irredeemable, Tennessee‟s termination of parental rights statutes recognize the
possibility that terminating an unfit parent‟s parental rights is not always in the child‟s best
interest. Id. However, when the interests of the parent and the child conflict, courts are to
resolve the conflict in favor of the rights and best interest of the child. Tenn. Code Ann. §
36-1-101(d). Further, “[t]he child‟s best interest must be viewed from the child‟s, rather than
the parent‟s, perspective.” Moody, 171 S.W.3d at 194.
The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:
(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 affect 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 or
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
18
(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.
Tenn. Code Ann. § 36-1-113(i). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent‟s rights is in the best
interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending
on the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child‟s best interests does not call for a rote
examination of each of Tenn. Code Ann. § 36-1-113(i)‟s nine
factors and then a determination of whether the sum of the
factors tips in favor of or against the parent. The relevancy and
weight to be given each factor depends on the unique facts of
each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one
factor may very well dictate the outcome of the analysis.
In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
Based upon the foregoing discussion, it is clear that Mother has struggled to make an
adjustment of circumstances, conduct, or conditions so as to make it safe and in Jamarcus and
Domingo‟s best interest to be in her care. Despite DCS‟s efforts and the efforts of various
support agencies, discussed infra, Mother has failed to make a lasting adjustment, as
evidenced by the fact that, inter alia, she receives around-the-clock monitoring and has a
financial conservator. If the children were returned to her, Mother would most likely lose this
vital support system that has certainly contributed to any progress that she has made. More
importantly, it is questionable whether her current mental state would promote the children‟s
well-being if returned to her, as suggested by the testimony concerning her inability to
control her temper and inability to adequately supervise or care for them. Additionally, she
further demonstrates her incompetence and lack of empathy as she has often prioritized her
own wants over the needs of her children, including that of regular visitation.
19
The record indicates that the children have done well in Foster Parents‟ care. Foster
Mother testified that she and her husband are able to financially support the children and that
they think of them as part of their family. To this end, she testified that the children have
created a strong bond with her family. The testimony shows that Jamarcus looked to Foster
Parents as his parents, and for Domingo, Foster Parents are the only parents he has ever
known. Foster Mother expressed a desire to legally adopt both Jamarcus and Domingo into
her family.
Regarding their well-being in Foster Parents‟ care, all of the witnesses at trial,
including Mother, testified that Foster Parents were good caretakers of the children. Indeed,
Mother experienced the care of Foster Parents firsthand while she resided in their home. In
addition, testimony showed that Jamarcus initially had behavioral and anger issues but has
since become “sweet” and well-mannered since coming into Foster Parents‟ care. From the
record, it appears that a change in caretakers and a change in the physical environment that
both children have known for over two years would have a negative effect. To remove them
at this point and place them in what is still an unstable environment with Mother would likely
have a detrimental effect on the children so as to undo any positive changes made by them,
including the children‟s attachment to Foster Parents and Jamarcus‟s improved behavior. 16
Applying the foregoing statutory factors, and for the stated reasons, it is clear that
Mother has not made a lasting change in her conduct or condition that would allow the
children to return to her care at an early date. She relies upon several agencies for her own
welfare. Mother‟s own plan for caring for her children gave no indication that Mother would
be able to obtain the kind of extensive support that she requires simply for her own care,
much less the care of two additional children. While this Court does not doubt Mother‟s love
for her children, the record does not support her assertion that she would be able to provide
Jamarcus and Domingo with the stable emotional and developmental support that they
require at this stage in their young lives. From the totality of the circumstances, we conclude
that clear and convincing evidence exists to support the trial court‟s conclusion that
termination of Mother‟s parental rights is in both Jamarcus and Domingo‟s best interest.
Conclusion
For the foregoing reasons, we affirm the Shelby County Chancery Court‟s order
terminating Mother‟s parental rights to Jamarcus and Domingo on the grounds of
incompetency and persistence of conditions. We also affirm the trial court‟s order finding it
16
Although we recognize that the best interest determination must focus solely on the children, rather
than parents, see Moody, 171 S.W.3d at 194, we note from the record that it appears that returning the children
to Mother would also have detrimental effect on Mother, as the services that she relies upon may no longer be
available.
20
in the best interest of the children to terminate Mother‟s parental rights. This case is
remanded to the trial court for such further proceedings as may be necessary and are
consistent with this Opinion. Costs of this appeal are assessed against Appellant Mother.
Because Mother is proceeding in forma pauperis in this appeal, execution may issue for costs
if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
21