In re Alleyanna C.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 14, 2015 Session
IN RE ALLEYANNA C.
Appeal from the Juvenile Court for Hamilton County
No. 260,449 Robert D. Philyaw, Judge
No. E2014-02343-COA-R3-PT-FILED-AUGUST 10, 2015
This is a termination of parental rights case, focusing on Allyanna C., the minor child
(“the Child”) of Allen C. (“Father”) and Annaliza H. (“Mother”). The Child was taken
into protective custody by the Tennessee Department of Children‟s Services (“DCS”) on
July 27, 2011, upon its investigation of environmental dangers in Mother‟s home and
subsequent determination that placement with Father was unsuitable. On April 16, 2014,
DCS filed a petition to terminate the parental rights of both parents. Following a bench
trial, the trial court found that statutory grounds existed to terminate the parental rights of
both parents upon its finding by clear and convincing evidence that (1) the parents
abandoned the Child by failing to provide a suitable home, (2) the parents failed to
substantially comply with the reasonable responsibilities and requirements of the
permanency plans, and (3) the conditions leading to the Child‟s removal from the home
persisted. The court also found by clear and convincing evidence that termination of
Mother‟s and Father‟s parental rights was in the Child‟s best interest. Father and Mother
have each appealed. Because the statutory ground of abandonment through failure to
provide a suitable home was not pled by DCS in the petition or defended on appeal, we
reverse the trial court‟s finding on that ground as to both parents. We affirm the trial
court‟s judgment in all other respects, including the termination of Mother‟s and Father‟s
parental rights to the Child.
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.
David C. Veazey, Chattanooga, Tennessee, for the appellant, Allen C.
Charlotte Kimsey, Chattanooga, Tennessee, for the appellant, Annaliza H.
Herbert H. Slatery, III, Attorney General and Reporter, and Kathryn A. Baker, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children‟s Services.
OPINION
I. Factual and Procedural Background
The Child is Father‟s only child. Father‟s name appears on the Child‟s birth
certificate, and he has acknowledged paternity since the Child‟s birth in March 2011.
The Child is the youngest of six children born to Mother. The oldest three children
previously had been removed from Mother‟s custody. The parents, who were never
married, had lived together in the paternal grandmother‟s home in the first weeks after
the Child‟s birth. When the Child was approximately one month old, Mother moved out
of the home with the Child and the two other children still in her custody at that time.
During the next two to three months, Father and Mother co-parented by having the Child
reside alternating weeks with each parent. Father testified that during this time period, he
was concerned because Mother was living in a residence that had mold and mildew
throughout the bathroom.
DCS personnel, already involved with Mother because of her older children,
investigated Mother‟s living situation during the months following the Child‟s birth. In
July 2011, a DCS investigator located Mother with the Child and found environmental
dangers in Mother‟s home, including unsanitary conditions, the presence of cockroaches,
and safety hazards. On July 27, 2011, DCS obtained an Order of Temporary Legal
Custody from the trial court and removed the Child and the other two children living with
Mother into protective custody. In addition to allegations of environmental dangers, DCS
alleged that Mother had been changing residences frequently by staying with various
family members and friends.
DCS family service worker Kelly Dyer testified that at the time of the Child‟s
removal, no relative placement was available for the Child. Each of the Child‟s half-
siblings was placed in the temporary custody of a relative. DCS placed the Child in a
non-relative foster home. After one transfer to a second foster home soon after entering
protective custody, she remained in that home for nearly three years until the time of the
termination proceedings. Mother still maintained her parental rights to all six children at
the time of trial, but none of the children had been returned to her custody. The Child‟s
foster mother testified during trial that the Child was bonded to her family and that she
and her husband thought of the Child as their daughter. It is undisputed that the Child has
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thrived in the foster parents‟ care. The foster mother confirmed that she and her husband
wish to adopt the Child.
DCS filed a petition for temporary custody of the Child on August 12, 2011,
alleging that the Child was dependent and neglected as to both parents. In this petition,
DCS averred that in part the Child could not be placed with Father because he had
“acknowledged in court that he last used marijuana during the first week of June 2011.”
Father has not disputed this averment. Mother and Father respectively waived their rights
to a preliminary hearing, and the trial court found probable cause that the Child was
dependent and neglected in an order entered September 6, 2011. The trial court
subsequently adjudicated the Child dependent and neglected on April 16, 2012, after the
parents waived their respective rights to an adjudicatory hearing. In its April 2012 order,
the trial court found that Mother had a “history of unstable and unsuitable housing,”
stating specifically that Mother had been “residing with various family members and
friends” and had been living in residences considered unsuitable by DCS due to “roaches,
unsanitary conditions, and safety hazards.” The court noted that both parents had
indicated in a signed petition for a consent order that they were willing to transfer
custody of the Child to a relative because they were “too unstable to care for their child.”
Prior to filing the petition for termination of parental rights, DCS developed four
permanency plans for the Child and both parents. All four plans were presented as
exhibits during the termination proceedings. The first permanency plan was established
on August 18, 2011, and ratified by the trial court on November 9, 2011. Both parents
were involved in the development of the plan and indicated by their respective signatures
their agreement with it. Under that initial permanency plan, the parents‟ relevant
responsibilities and requirements were that they participate in supervised visitation with
the Child; communicate with the Child; each separately provide a home free from
environmental hazards, safety hazards, and unsanitary conditions; each separately
provide a home free from domestic violence, drugs, and unlawful activities or
individuals; participate in random drug screens, complete an alcohol and drug assessment
upon any failed screen, and follow all resultant recommendations; participate in domestic
violence classes/counseling and follow attendant recommendations made by treatment
professionals; provide proof of legal, verifiable income for a period of no less than six
consecutive months; pay child support as ordered by the court; notify DCS of any
changed circumstances; maintain contact with DCS; and attend child and family team
meetings and court hearings. Ms. Dyer testified that the requirement regarding domestic
violence education was initially included because each parent previously had been
arrested on a domestic violence charge. Father was also required to refrain from illegal
activities or association with people who participated in illegal activities.
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At some point near the end of 2011, a domestic violence incident occurred during
Father‟s and Mother‟s joint supervised visitation with the Child at a McDonald‟s
restaurant. A visitation supervisor was present in the course of the event but did not
testify during the instant proceedings. The Child was present throughout the incident.
According to Mother‟s testimony, Father threw coffee on Mother. Conversely, Father
testified that he inadvertently knocked over the coffee in an attempt to grab a cellular
telephone from Mother that he believed to be his. Father acknowledged that he later pled
guilty to a criminal charge of reckless endangerment stemming from the incident. In
addition, Father‟s visitation privileges with the Child were suspended in December 2011,
and he was not permitted contact with Mother or the Child pending completion of
domestic violence education.1
The second permanency plan was established on March 26, 2012, and ratified by
the trial court on June 27, 2012. Although the parents were again involved in the
development of the plan, they each indicated, respectively, that they disagreed with it.
Requirements and responsibilities under this second plan remained essentially as under
the first plan, notwithstanding Father‟s visitation privileges with the Child having been
suspended due to the December 2011 incident.
Contrary to Ms. Dyer‟s testimony, our line-by-line review of the first permanency
plan reveals that it does not include a requirement for either parent to attend parenting
classes. The requirement to attend domestic violence classes does include an action step
for the parents of “address[ing] the negative impact of domestic violence on [the Child].”
Parenting classes specifically are mentioned in the second plan within an introductory
section addressing the conditions still existing that prevented the Child from leaving state
custody. Within this section, DCS reported that neither parent had completed “parenting
classes or domestic violence classes.”
It is undisputed that at some point soon after development of the second
permanency plan in March 2012, Father disappeared and made no contact with DCS for
nearly eighteen months, resurfacing in August 2013. In the meantime, the trial court
found in an Order on Permanency Hearing entered on August 2, 2012, that Father had
been arrested in March 2012 and charged with theft under $500, vandalism/malicious
mischief, and assault. Father testified at trial that he was incarcerated for approximately
three months during this time period as a result of the reckless endangerment conviction.
During the remainder of his eighteen-month absence, Father claimed to have been
residing with his father in Georgia. He acknowledged that he remained in Georgia to
1
According to Father‟s testimony, a no-contact order was entered by the Hamilton County General
Sessions court when he pled guilty to reckless endangerment. Ms. Dyer also testified that Father was
under a no-contact order following the incident giving rise to the conviction. This order is not in the
record on appeal.
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avoid service of pending warrants. Father further admitted that he made no contact with
DCS during his long absence. Ms. Dyer testified that upon information related by one of
Mother‟s older children, DCS personnel suspected that during this eighteen-month
period, Father had been in contact with Mother and present during at least one of
Mother‟s unsupervised visits with the Child despite the no-contact order and suspension
of his visitation privileges.
The third permanency plan was established on July 10, 2013, and ratified by the
trial court on September 4, 2013. Father had not yet resumed contact with DCS at the
time this plan was developed, but he was represented during its development by his
former counsel. Mother, in fact, was present during development of the plan but again
indicated that she disagreed with it. This third plan included a specific requirement for
Father to complete remaining parenting class sessions that he needed in order to receive
his certificate of completion for a parenting class. The balance of relevant
responsibilities and requirements for the parents remained the same as in the previous
two plans.
The fourth permanency plan was established on February 25, 2014, and ratified by
the trial court on May 14, 2014. Father was present for the development of this plan, and
he indicated by his signature agreement with its terms. Mother, also present, refused to
sign any documents during the development of this plan. The parents‟ responsibilities
and requirements remained essentially unchanged under this final plan.
On April 16, 2014, DCS filed a petition to terminate the parental rights of Father
and Mother, alleging, as to both parents, statutory grounds of substantial noncompliance
with the permanency plans and persistence of the conditions leading to removal of the
Child. The trial court subsequently appointed counsel to represent each parent and
attorney Rachel Wright as guardian ad litem.
Following a bench trial conducted over two nonconsecutive days on August 29,
2014, and October 13, 2014, the trial court determined that grounds existed to terminate
the parental rights of both parents. The court found by clear and convincing evidence
that both parents had abandoned the Child by failing to provide a suitable home and had
failed to substantially comply with the reasonable responsibilities and requirements of the
permanency plans. In addition, the court found as to both parents clear and convincing
evidence of the statutory ground of persistence of the conditions leading to the Child‟s
removal from the home. The court further found by clear and convincing evidence that
termination of Father‟s and Mother‟s parental rights was in the best interest of the Child.
The court entered an order to this effect on November 4, 2014, and set a date for review
of the final order. The final judgment terminating parental rights was subsequently
entered on November 19, 2014. Each parent separately filed a timely appeal.
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II. Issues Presented
On appeal, Father presents four issues, which we have restated as follows:
1. Whether the trial court erred by finding clear and convincing evidence of
the statutory ground of abandonment by Father‟s failure to provide a
suitable home.
2. Whether the trial court erred by finding clear and convincing evidence of
the statutory ground of Father‟s failure to substantially comply with the
responsibilities and requirements of the permanency plans.
3. Whether the trial court erred by finding clear and convincing evidence of
the statutory ground of persistence of the conditions leading to the Child‟s
removal from Father‟s home.
4. Whether the trial court erred by finding clear and convincing evidence that
it was in the best interest of the Child to terminate Father‟s parental rights.
Mother presents three issues, which we have similarly restated as follows:
5. Whether the trial court erred by finding clear and convincing evidence of
the statutory ground of Mother‟s failure to substantially comply with the
responsibilities and requirements of the permanency plans.
6. Whether the trial court erred by finding clear and convincing evidence of
the statutory ground of persistence of the conditions leading to the Child‟s
removal from Mother‟s home.
7. Whether the trial court erred by finding clear and convincing evidence that
it was in the best interest of the Child to terminate Mother‟s parental rights.
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,
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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. See 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
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. Abandonment by Failure to Provide a Suitable Home
The trial court found by clear and convincing evidence that Father and Mother had
abandoned the Child by failing to provide a suitable home. DCS concedes that it did not
plead this statutory ground as to either parent in its termination petition and states on
appeal that it is not defending this ground. See, e.g., In re Landon H., No. M2011-00737-
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COA-R3-PT, 2012 WL 113659 at *6-7 (Tenn. Ct. App. Jan. 11, 2012) (vacating the trial
court‟s termination of parental rights on a ground not pled in the complaint or tried by
implied consent). Father raises the issue of this statutory ground on appeal, arguing that
DCS failed to make reasonable efforts to assist him in establishing a suitable home in the
four months following the Child‟s removal. Mother does not raise this statutory ground
as an issue. However, due to the fundamental constitutional interest involved, we address
this issue as to Mother also. See In re Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App.
2010) (analyzing the trial court‟s findings regarding statutory grounds despite the father‟s
having raised only auxiliary issues); overruled on other grounds by In re Kaliyah S., 455
S.W.3d 533 (Tenn. 2015).
Tennessee Code Annotated § 36-1-113(g)(1) (2014) provides in relevant part:
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the grounds listed in this subsection (g). The
following grounds are cumulative and non-exclusive, so that listing
conditions, acts or omissions in one ground does not prevent them
from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred; . . .
Regarding the definition of abandonment applicable to this ground, Tennessee Code
Annotated § 36-1-102(1)(A)(ii) provides:
(ii) The child has been removed from the home of [a] parent or parents
or a guardian or guardians as the result of a petition filed in the juvenile
court in which the child was found to be a dependent and neglected child,
as defined in § 37-1-102, and the child was placed in the custody of the
department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition is filed
finds, 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 for a period of four (4) months following the
removal, the department or agency has made reasonable efforts to assist [a]
parent or parents or a guardian or guardians to establish a suitable home for
the child, but that [a] parent or parents or a guardian or guardians have
made no reasonable efforts to provide a suitable home and have
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
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early date. The efforts of the department or agency to assist a parent or
guardian in establishing a suitable home for the child may be found to be
reasonable if such efforts exceed the efforts of the parent or guardian
toward the same goal, when the parent or guardian is aware that the child is
in the custody of the department; . . .
As this Court has explained, “„A ground for termination not included in the
petition can be properly found if the ground was tried by implied consent.‟” In re Alysia
S., 460 S.W.3d 536, 564 (Tenn. Ct. App. 2014) (quoting In re Johnny K.F., No. E2012-
02700-COA-R3-PT, 2013 WL 4679269 at *8 (Tenn. Ct. App. Aug. 27, 2013)). DCS has
elected, however, not to defend this statutory ground and has not presented an argument
that the ground was tried by implied consent. See id. (“„The strict application of
procedural requirements in cases involving the termination of parental rights requires that
before there can be a finding that a ground not alleged in the petition was tried by implied
consent, the record must be clear that such ground was indeed tried by implied
consent.‟”). We therefore reverse, as to Father and Mother, the trial court‟s finding
regarding the statutory ground of abandonment through failure to provide a suitable
home. Father‟s argument regarding reasonable efforts in the context of this statutory
ground is pretermitted as moot.
V. Substantial Noncompliance with Permanency Plans
The trial court also found clear and convincing evidence that Father and Mother
failed to substantially comply with the reasonable responsibilities set out in their
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides as an
additional ground for termination of parental rights:
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4[.]
In its final judgment, the trial court stated specific findings of fact regarding this
statutory ground as follows:
Respondents, [Mother and Father], have failed to comply in a
substantial manner with the statement of responsibilities set out in periodic
foster care plans prepared for and signed by said Respondents, following
the subject child being found to be dependent and neglected by the Juvenile
Court of Hamilton County. Children‟s Services has explained to
Respondents those reasonable responsibilities, which are directly related
and aimed at remedying the conditions, which necessitate foster care
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placement. Specifically, Respondents . . . have failed to provide a safe,
stable, permanent residen[ce] for the subject child, provide proof of legal,
verifiable income, complete domestic violence education and following
through on recommendations, refrain from illegal activities, maintain
consistent visitation and/or pay child support. On September 4, 2013, both
parents were found to be in substantial non-compliance with the
permanency plan and they remain so to date.
Upon careful review, we determine that a preponderance of the evidence supports the
trial court‟s findings that Father and Mother failed to substantially comply with the
reasonable responsibilities of their permanency plans. We will address Father‟s and
Mother‟s respective issues regarding this statutory ground in turn.
A. Father
In particular, Father‟s responsibilities under the permanency plans included
providing a home for the Child free from environmental hazards, safety hazards,
unsanitary conditions, domestic violence, drugs, and unlawful activities or individuals;
participating in random drug screens, completing an alcohol and drug assessment upon
any failed screen, and following all resultant recommendations; participating in domestic
violence classes/counseling and following attendant recommendations made by treatment
professionals; providing proof of legal, verifiable income for a period of no less than six
consecutive months; paying child support as ordered by the court; notifying DCS of any
changed circumstances; maintaining contact with DCS; and attending child and family
team meetings and court hearings. Father‟s responsibilities under the plans also included
participating in supervised visitation with the Child and maintaining communication with
the Child except for the period when Father was not allowed contact with the Child due
to an incident of domestic violence.
Father contends that the permanency plans were confusing, incomplete, and failed
to clearly set forth his requirements and responsibilities. He argues that he substantially
complied with the responsibilities he understood to be his, including parenting classes,
stable income, stable housing, and domestic violence counseling. His argument that the
plans were confusing is premised upon the assertion that the “Statement[s] of
Responsibilities” attached to the third and fourth plans were inconsistent with the
requirements set forth in the plans themselves. DCS presented all four permanency plans
at trial as part of a collective exhibit. Beginning with the third plan, a “Statement of
Responsibilities” is attached as a summary of the “action steps” delineated for each
parent as responsibilities in the body of the permanency plan. Upon our careful review,
we note that the only requirement missing from the Statement of Responsibilities
attached to the third plan, and subsequently the fourth plan, is that Father complete
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parenting classes. When Father‟s counsel confronted Ms. Dyer at trial with the absence
of this requirement from the Statement of Responsibilities, she stated that she was sure
the requirement was in the permanency plan. She further stated:
I would expect that, along with the statement of responsibility, that
most of the parents would review the plan. And I do know that it was in
previous plans and it‟s been discussed at length that he needed to do that.
So it was his understanding that he needed to do that because he signed up
for them the first time.
Our review of the plans reveals that Ms. Dyer was correct that the requirement of
parenting classes was in the third permanency plan. However, the requirement was not
previously set forth as a requirement in the first and second permanency plans. In the
introductory section of the second plan, DCS did note that Father‟s failure to complete
parenting classes was one of the remaining obstacles to reunification.
To the extent that testimony revealed parenting classes to be a requirement from
the beginning and that the requirement appears to be omitted from the early permanency
plans and the statements of responsibilities in the later plans, we agree with Father that
this particular requirement proved confusing in the written permanency plans. However,
at no time in his testimony or his argument on appeal has Father maintained that he did
not understand the completion of parenting classes to be a requirement for his
reunification with the Child. Instead, he conceded at trial that he began to take parenting
classes soon after the Child‟s removal into protective custody but failed to complete the
full course. Father further testified that although he had begun taking parenting classes
again when he returned from Georgia in late 2013, several class sessions remained. He
acknowledged that because he had been required to commence a new set of parenting
classes after his return, he still had six class sessions to complete. He maintained,
however, that only two sessions involved course material to which he had not been
exposed previously.
Our review of the record reveals that all of Father‟s responsibilities other than the
completion of parenting classes were clearly and consistently set forth in the permanency
plans, as well as the summarized statements of responsibilities attached to the third and
fourth plans. Father asserts that in addition to his effort to complete parenting classes, he
substantially complied with the requirements of the permanency plans because by the
time of trial, he (1) could provide the Child with a stable home at the paternal
grandmother‟s residence, (2) had plans to earn a steady income, and (3) had completed a
domestic violence course. We find Father‟s argument to be unavailing.
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Father appeared at the final day of trial in custody, having been incarcerated for
approximately six weeks as a sanction for civil contempt due to his failure to pay child
support. Father testified that he would be released as soon as he paid $583 in child
support to purge his contempt sanction. See Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn.
2000) (explaining that a civil contemnor “can purge the contempt by complying with the
court‟s order”). Father stated that when released, he would return to his prior living
situation in his mother‟s (“Paternal Grandmother‟s”) home, where he had resided since
2009. Father further explained that Paternal Grandmother rented a three-bedroom
apartment and that he was obligated on the lease with her. They lived there with his
brother and his eleven-year-old cousin.
Ms. Dyer testified that Paternal Grandmother‟s home was appropriate for the
Child, but she also expressed concern that Paternal Grandmother had previously refused
to provide a placement for the Child and had questioned whether Father was the Child‟s
biological father. Father agreed that Paternal Grandmother continued to question the
Child‟s paternity. He also acknowledged that Paternal Grandmother had given him funds
to have a DNA test administered but that he had failed to use the money for that purpose.
Father explained that Paternal Grandmother was not willing to pay the child support
purge amount to secure his release from jail because she was “mad” concerning his
spending the money she supplied him and not obtaining a DNA test. When questioned
regarding where he would reside with the Child if at some point they could no longer
reside with Paternal Grandmother, Father stated that he planned to obtain a residence of
his own when he could afford it.
As to the requirement that he provide proof of legal, verifiable income for a period
of no less than six consecutive months, Father testified during the first day of trial on
August 29, 2014, that he had been employed through a temporary staffing service since
May 2014. At the time the Child was removed into protective custody, Father was
similarly employed through a temporary staffing service. Regarding income, he stated
that he earned $1,000 to $1,500 a month when working regularly. He advanced,
however, that because of the nature of his temporary employment, he would need
assistance from family members to support the Child. Father testified that he had been
court-ordered to pay $300 per month in child support prior to June 2014, when the
amount increased to $583 per month. He acknowledged that even at the lower rate, he
“was so far behind” and had been only paying “what [he] could at the time.” During the
final day of trial in October 2014, Father testified that due to his incarceration, he was
unemployed. He maintained that upon his release from jail, he would be able to return to
employment with a temporary staffing agency. He also planned to earn $150 a week
“throwing newspapers” for his aunt, and he stated that he had a job lined up at a “chicken
house.” We note that Father failed to meet the plan requirement of providing proof of
verifiable income for a period of no less than six consecutive months.
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DCS does not dispute that by the time of trial, Father had completed a domestic
violence course. As DCS points out, however, Father did not begin to fulfill this
requirement until the termination petition had been filed, approximately two and one-half
years after the Child had been removed into protective custody and Father had agreed to
the requirement in the first permanency plan. The trial court expressed concern in its
November 5, 2014 order that the parents had not taken the domestic violence and
parenting course requirements more seriously. On the matter, the court specifically
stated: “Those aren‟t pretend. They‟re not play. They‟re not come when you want to, go
when you want to, you know, this will be a good idea.” When Father was questioned
regarding why he did not attempt to have his visitation privileges with the Child restored
sooner after those privileges were suspended in December 2011, the following exchange
ensued:
DCS‟s Counsel: So domestic violence has never been an issue with you
and the mother of this child?
Father: No. I never had – I don‟t have no history of domestic
violence.
DCS‟s Counsel: Okay. And you don‟t remember the incident at the
visitation?
Father: Yes, I remember the incident. And I explained the
incident to you . . . the last time we was here.
DCS‟s Counsel: That was violence, wasn‟t it?
Father: Uh?
DCS‟s Counsel: That was violence, wasn‟t it?
Father: No, it wasn‟t violence. I told you. How was it
violence when I told you I never even touched her?
The only thing I did was grab her phone.
DCS‟s Counsel: Okay.
Father: There was no violence. I never hit her at all.
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DCS‟s Counsel: So, in your mind, there was never a reason for you to
take the domestic violence classes?
Father: No, because I never had any issues of domestic
violence against anybody.
Although Father eventually completed the requirement that he participate in a domestic
violence course, his denial of the need for the course and his assertion that domestic
violence must involve actual “hitting” demonstrate a troubling lack of the understanding
the course was meant to engender. See Tenn. Code Ann. § 36-3-601(1) (defining
“domestic abuse” in part as placing a domestic abuse victim, “in fear of physical harm”
“by other than accidental means”).
In addition, Father‟s disappearance for nearly eighteen months during the three
years the Child was in protective custody represented undisputed noncompliance with the
permanency plans during that time period. For this extended period of time, Father failed
to communicate with DCS or make any effort to reestablish visitation with the Child. We
recognize that between Father‟s reappearance in August 2013 and his incarceration in
August 2014, he did make such efforts and that he had resumed visitation with the Child
in December 2013. We decline to determine that Father‟s late actions in this matter
constituted substantial compliance with the reasonable responsibilities delineated in the
permanency plans. We conclude that the trial court did not err in terminating Father‟s
parental rights based upon clear and convincing evidence of this statutory ground.
B. Mother
In its November 5, 2014 order, the trial court noted that it had previously found
Mother to be in substantial compliance with her reasonable responsibilities under the first
permanency plan in an Order on Permanency Hearing entered August 2, 2012,
approximately one year after the Child‟s removal into protective custody. The trial court
ultimately found, however, that Mother had not substantially complied with the
reasonable responsibilities and requirements of the permanency plans in the two years
following that August 2012 permanency hearing.
As with Father, Mother‟s responsibilities and requirements under the permanency
plans included providing a home for the Child free from environmental hazards, safety
hazards, unsanitary conditions, domestic violence, drugs, and unlawful activities or
individuals; participating in random drug screens, completing an alcohol and drug
assessment upon any failed screen, and following all resultant recommendations;
participating in domestic violence classes/counseling and following attendant
recommendations made by treatment professionals; providing proof of legal, verifiable
14
income for a period of no less than six consecutive months; paying child support as
ordered by the court; notifying DCS of any changed circumstances; maintaining contact
with DCS; and attending child and family team meetings and court hearings. Mother‟s
responsibilities under the plans also included participating in supervised visitation with
the Child and maintaining communication with the Child.
Mother asserts that the trial court erred by finding her in substantial
noncompliance with the permanency plans because at the time of trial, the only
requirements she had not completed were the domestic violence course and payment of
her child support arrearage. We disagree with Mother on this issue. We do recognize, as
did the trial court, that Mother participated consistently in both supervised and
unsupervised visitation with the Child throughout the three years the Child was in
protective custody. She resumed unsupervised visitation in December 2013 for four
hours each week, and by the time of trial, she was enjoying such visitation in her own
home. It was undisputed that Mother regularly attended court hearings and child and
family team meetings. However, when Mother‟s efforts toward compliance with the
reasonable responsibilities and requirements of the permanency plans are viewed as a
whole, we determine that the evidence does not preponderate against the trial court‟s
findings that she failed to substantially comply.
Mother‟s argument regarding this issue fails to account for the long lapse of time
between the trial court‟s finding that she was in substantial compliance in August 2012
and Mother‟s procuring verified employment with a Hardee‟s restaurant in March 2014.
Eventually, she began to pay child support in July 2014 (one month before trial began)
and enrolled in an approved domestic violence course only weeks before trial began. In
its specific findings as to Mother‟s lack of substantial compliance during the three years
the Child was in protective custody, the trial court in its November 5, 2014 order stated in
pertinent part:
The Court heard from Kelly Dyer, DCS worker, who stated the
mother made very little progress on the plan of care until after the
termination petition was filed. Mother had no verifiable income from the
time the child came into custody until someone from DCS initiated contact
with a prospective employer around the time the petition was filed. Mother
has had stable housing with a relative for the last year but numerous people
live in the home and the mother exercises parenting time with her other
children on the weekends.
Due to a prior Domestic Assault charge mother was required to
attend domestic assault classes. Mother instead provided documentation
showing she attended a two (2) hour session with a local pastor. She has
15
since begun attending those classes. She did complete the six (6) week
parenting classes but took a year to do so.2 Mother has maintained her
parenting time and paid child support, although she has a sizeable
arrearage.
As the trial court referenced in regard to housing, Mother had resided in a two-
bedroom home with her mother (“Maternal Grandmother”), sister, and nieces, ages four
and seven, for at least eighteen months by the time of trial. In addition, the Child‟s half-
siblings also visited with Mother in her home. Mother stated that Maternal Grandmother
slept on an “emergency bed” in the front room, Mother and her sister shared a bedroom,
and her nieces shared the other bedroom. According to Mother, if the Child were to
reside with her, the Child would sleep in a third bed in the young girls‟ bedroom. Mother
amended her testimony somewhat as she attempted to account for two of her other
children, a son and daughter, sleeping in the home when they stayed overnight.
Ms. Dyer testified that DCS was satisfied that the home itself constituted stable
housing for Mother and the Child. She expressed concern, however, that the home was
not large enough for everyone living there. She also testified that Mother‟s current
paramour had been seen by DCS personnel at the home several times and that she
suspected the paramour was actually residing in the house. When questioned regarding
the possibility of securing her own housing, Mother denied that there was any need for a
change. Ms. Dyer also testified that Mother had neglected to remove a large amount of
broken glass from her yard. Mother disputed that the broken glass was in her yard,
insisting that it was actually in a public walkway nearby.
As to employment, Mother testified that she was working twenty-eight hours a
week at a Hardee‟s restaurant by the time of trial. Ms. Dyer acknowledged that
according to Mother‟s supervisor at the restaurant, Mother arrived on time for her shifts
and performed the work assigned. However, verification of these five months of
employment was the only documentation of employment that Mother had presented to
DCS in more than three years while the Child had been in protective custody. At the time
of trial, Mother owed a $7,000 arrearage in child support for this Child.
2
Mother also asserts that the trial court inaccurately found that she had not completed parenting classes.
To the contrary, as this excerpt from the court‟s order demonstrates, the court did recognize Mother‟s
completion of parenting classes. Mother cites the court‟s general statement in the same order that “Both
parents had an understanding of the requirements regarding parenting and domestic violence classes but
have not made consistent and effective efforts to comply.” Considering Mother‟s inconsistent efforts to
complete an approved domestic violence course, we do not find the court‟s assessment in its order to be in
error.
16
Finally, Ms. Dyer testified that the need for domestic violence education had been
of primary concern in developing the permanency plans to ensure the safety of the Child.
In its August 2012 Order on Permanency Hearing, the trial court stated the following
regarding Mother‟s compliance to date with this requirement:
The mother completed a two (2) hour domestic violence class and provided
the certificate to the Department on this date. The Department needs to
contact the instructor in order to obtain details regarding the class and
determine whether it meets the permanency plan requirement.
Concerning the matter, Ms. Dyer explained that when she received Mother‟s
documentation of the two-hour domestic violence course, taught by a local pastor, she
informed Mother that it was not a course approved by DCS. Ms. Dyer indicated that she
knew nothing about the course until Mother presented the certificate and that DCS never
would have approved a course of such short duration for domestic violence education.
She also testified that Mother and Father had experienced another domestic violence
incident after Mother had completed the two-hour course. Ms. Dyer emphasized that she
had asked Mother “numerous times to go for domestic violence counseling” and had
provided information regarding approved and recommended classes from the time the
Child was removed into protective custody. Mother ultimately began participating in an
approved domestic violence course after the termination petition was filed, but she had
not completed the course at the time of trial. As with Father, Mother‟s insistent denial at
trial that she needed domestic violence education does not reflect favorably on her
attention to this requirement. Considering the totality of the evidence, we determine that
the trial court did not err in also terminating Mother‟s parental rights upon clear and
convincing evidence of the statutory ground of failure to substantially comply with the
permanency plans.
VI. Persistence of Conditions Leading to the Child‟s Removal
The trial court further found clear and convincing evidence, as to both parents, of
the statutory ground of persistence of conditions leading to removal of the Child from the
parents‟ home. Regarding this statutory ground, Tennessee Code Annotated § 36-1-
113(g)(3) (2014) provides:
(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,
17
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; . . .
In its final judgment, the trial court stated the following specific findings regarding
this statutory ground:
[The Child] has been removed by order of a court for a period of six
(6) months. The conditions which led to the removal still persist or other
conditions persist which in all probability would cause [the Child] to be
subjected to further abuse and neglect and which, therefore, prevent the
child‟s return to the care of Respondents. There is little likelihood that
these conditions will be remedied at an early date so that the child can be
returned to Respondents in the near future. [The Child] was placed in state
custody on July 28, 2011 due to allegations that the child‟s mother,
Annaliza [H.], was moving her children from house to house, and she did
not [have] stable housing, employment or transportation. The subject child
has been in state‟s custody for close to three years. In July of 2012, the
mother was found to be in substantial compliance with the permanency
plan but was unable to achieve reunification. The father was found not to
be in substantial compliance with the permanency plans and remains so to
date. At the last permanency hearing held on September 4, 2013[,] both
parents were found to be in substantial non-compliance with the
permanency plan. The Department attempted to provide services to the
family to prevent removal, but the mother was non-compliant. The
Department has provided services to both the mother and the father since
the child came into custody and those efforts are on-going.
Upon careful review, we further determine that a preponderance of the evidence supports
the trial court‟s findings as to this statutory ground. We will address Father‟s and
Mother‟s respective issues regarding this ground in turn.
18
A. Father
In his argument regarding this statutory ground, Father relies on his previous
assertion that the trial court erred by finding clear and convincing evidence that Father
had not substantially complied with the reasonable responsibilities set forth in the
permanency plans. He confines his specific argument regarding this issue to the
following statement: “Likewise, the question of non-compliance with the permanency
plan cannot be used as a barrier that would create a persistence of conditions preventing
the child‟s reunification with her father.” Having previously determined that the
evidence does not preponderate against the trial court‟s findings regarding Father‟s lack
of substantial compliance with requirements reasonably designed to correct conditions
leading to the Child‟s removal, we are not persuaded by Father‟s argument.
We do find it necessary, however, to address the threshold consideration of
whether the Child was removed from Father‟s home by court order when she was taken
into protective custody. See Tenn. Code Ann. § 36-1-113(g)(3) (providing as a threshold
requirement for this statutory ground that “[t]he child has been removed from the home
of the parent or guardian by order of a court for a period of six (6) months . . . .”); In re
K.M.K., No. E2014-00471-COA-R3-PT, 2015 WL 866730 at *7 (Tenn. Ct. App. Feb. 27,
2015) (citing In re Maria S., No. E2013-01295-COA-R3-PT, 2013 WL 1304616 at *10
(Tenn. Ct. App. Apr. 1, 2013), as holding, “burden of proof not met where „the Children
were not removed from Father‟s home‟ and the father was incarcerated during the
pertinent time”). Under the specific circumstances of the case at bar, we determine that
the Child was removed by court order from Father‟s home as well as Mother‟s home.
Prior to the Child‟s physical removal from Mother‟s home, it is undisputed that the
Child had been residing during alternating weeks with Father. During the termination
proceeding, DCS presented pertinent orders entered by the trial court during the
dependency and neglect proceedings as part of a collective exhibit. Although the index
to this exhibit lists “Protective Custody Order Dated 8-12-11,” no such order is included
in the record before us. The first order included in the record is the trial court‟s Order on
Preliminary Hearing, entered September 6, 2011, following a hearing conducted on
August 23, 2011. This order does reference “the Order of Temporary Legal Custody
issued by the Hamilton County Juvenile Court on July 27, 2011 for [the Child]” and
states that at the time of removal, it “was contrary to the [Child‟s] welfare to remain in
the care, custody or control of the parents . . . .” The court subsequently found in the
Order on Adjudicatory Hearing that Father and Mother, had “recently signed a petition
for a consent order to give custody of [the Child] to a relative, in which the parents stated
that they were too unstable to care for their child.” We therefore determine that the Child
was removed by court order from Father‟s home as well as Mother‟s home and that DCS
established the threshold consideration for this statutory ground. Cf. In re Destaney D.,
19
No. E2014-01651-COA-R3-PT, 2015 WL 3876761 at *6 (Tenn. Ct. App. June 23, 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.”)
(emphasis added) (citing In re K.M.K., 2015 WL 866730 at *7).
The Child was removed from Father‟s home in particular because Father
admittedly could not provide a stable home at the time and had been using marijuana in
the recent past. As examined in the previous section of this opinion, Father‟s ability to
provide a stable home for the Child continued to be in question. Father withdrew from
all contact with DCS and the court for eighteen months of the three years the Child was
in protective custody. At the time of the final hearing, Father had been incarcerated for
six weeks due to his inability to purge a civil contempt sanction for failure to pay child
support. His only proof of employment was through a temporary staffing company,
although he maintained that he would have additional work upon his release from jail.
When not incarcerated or residing out of state, Father had resided for several years with
Paternal Grandmother and other relatives in an apartment with Paternal Grandmother‟s
and Father‟s names on the lease. However, Father‟s testimony that Paternal Grandmother
welcomed the Child in the home conflicted with his testimony that Paternal Grandmother
was “mad” at him for failing to obtain a paternity test and that she wanted no “drama”
with Mother over the Child.
In addition, Father acknowledged that he refused a drug screen requested by DCS
in February 2014, stating that he asked a DCS staff person to contact his probation officer
for results of recent drug screens. Ms. Dyer testified that she did not pursue the matter
after Father‟s probation officer did not return a phone message. Father apparently made
no further effort to assure DCS and the trial court that he had tested negative for
controlled substances.
The evidence also demonstrated that continuation of the parent-child relationship
would greatly diminish the Child‟s chances of integration into a safe, stable, and
permanent home. We conclude that the trial court properly terminated Father‟s parental
rights based on clear and convincing evidence of this statutory ground.
B. Mother
As the trial court noted at the close of the termination proceeding, Mother
adamantly denied at trial that there existed any basis for DCS to be involved in this
matter and denied knowing any reason why DCS would ever have considered her home
unsuitable for the Child. On appeal, Mother bases her argument that the trial court erred
20
by finding clear and convincing evidence of this statutory ground primarily on her
assertion that she had obtained and maintained stable housing by the time of trial.
In its April 2012 order adjudicating the Child dependent and neglected, the trial
court found that Mother had a “history of unstable and unsuitable housing.” The court
specifically found that Mother had been “residing with various family members and
friends” and that she had been living in residences considered unsuitable by DCS due to
“roaches, unsanitary conditions, and safety hazards.” As discussed in a previous section
of this opinion, Mother‟s housing situation had stabilized somewhat by the time of trial in
that she was residing with Maternal Grandmother and Mother‟s sister and nieces.
However, further testimony demonstrated that the home was small for the number of
people living there, that Mother was vague in terms of her plans to make space for the
Child, that Mother had only recently begun to earn an income, and that Mother continued
to resist removing an environmental hazard.
Regarding the environmental hazard, Ms. Angel testified that when she
transported the Child for visitation a few months before trial, she had observed
“a lot” of broken glass in the yard of the home, near children‟s toys and a bicycle. Ms.
Angel informed Ms. Dyer of the concern. According to Ms. Dyer, after Mother denied at
a previous court hearing that there was broken glass in her yard, Ms. Dyer drove by
Mother‟s house immediately and observed a “15-foot path” of broken glass. The debris
appeared to have originated from a broken mirror, lying near children‟s toys and a
bicycle in Mother‟s yard. During trial, Mother asserted that the glass was not in her yard
but on a public walkway and thus that it was not her responsibility to clear the hazard.
When questioned regarding this assertion, Ms. Dyer confirmed that the broken glass was
definitely inside Mother‟s yard and, in fact, near a child‟s bicycle. We emphasize that the
trial court‟s determinations regarding witness credibility are afforded great weight on
appeal. See Jones, 92 S.W.3d at 838.
Moreover, Mother‟s refusal to acknowledge responsibility for the duty to clear a
safety hazard from the Child‟s path, even if it were slightly off her property, is indicative
of a pattern in her testimony of failing to acknowledge responsibility for the situation
giving rise to the Child‟s removal from her care and continuing to keep the Child in
protective custody. When questioned regarding whether she accepted any fault for the
Child‟s removal, Mother answered in the negative and stated: “[T]he people that took
my children, they took my children because of money situation and because they are
lowdown people and because we just didn‟t get along.” In its remarks articulated at the
close of trial, the court noted Mother‟s “deni[al] that there was any reason for DCS to be
involved” and found that Mother had failed to take seriously the process of “working the
permanency plan and meeting goals and expectations.”
21
As with Father, the evidence also demonstrated that continuation of the parent-
child relationship between Mother and the Child would greatly diminish the Child‟s
chances of integration into a safe, stable, and permanent home. We conclude that the trial
court properly terminated Mother‟s parental rights based on clear and convincing
evidence of this statutory ground as well.
VII. Best Interest of the Child
When a parent has been found to be unfit by establishment of at least one statutory
ground for termination of parental rights, as here, 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 838, 877 (Tenn. Ct. App. 2005); see also In re Arteria H., 326 S.W.3d at 175 (“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.”),
overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015).
Tennessee Code Annotated § 36-1-113(i) (2014) provides a list of factors the trial court is
to consider when determining if termination of parental rights is in the child‟s best
interest. This list is not exhaustive, and the statute does not require the court to find the
existence of every factor before concluding that termination is in a child‟s best interest.
In re Audrey S., 182 S.W.3d at 878 (“The relevancy and weight to be given each factor
depends on the unique facts of each case.”). Further, the best interest of a child must be
determined from the child‟s perspective and not the parent‟s. White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004).
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
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;
22
(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.
At the conclusion of trial, the trial court considered a recommendation from the
guardian ad litem that it would be in the Child‟s best interest to terminate the parental
rights of Father and Mother. The court subsequently analyzed the best interest factors,
specifying in its final judgment the following findings of fact in relevant part:
Pursuant to T.C.A. § 36-1-113(i), it is for the best interest of the
subject child and the public that all of the parental rights of Respondents,
[Mother and Father], to the child . . . be forever terminated and that the
custody, control and complete guardianship of said child should now be
awarded to the State of Tennessee, Department of Children‟s Services with
the right to place said child for adoption and to consent to any adoption in
loco parentis, in that
Respondents, [Mother and Father], failed to make any adjustment of
circumstance, conduct or conditions to make it safe and in the child‟s best
23
interest to be placed in the care of said Respondents. The continuation of
the parent and child relationship greatly diminishes the child‟s chances of
early integration into a safe, stable and permanent home.
Respondents, [Mother and Father], failed to make a lasting
correction of their circumstances after [DCS] has made reasonable efforts
to help them for such duration of time that lasting adjustment does not
reasonably appear possible.
There is no meaningful relationship between the Respondents and
child.
A change of caretakers and home is likely to have a highly negative
effect on the child. The child is placed in a stable home and has adjusted to
the current placement. [The Child] has established a strong bond with her
foster family . . . .
(Paragraph numbering omitted.) The trial court therefore concluded that it was in the
Child‟s best interest to terminate Father‟s and Mother‟s parental rights. Upon careful
review, we agree with this conclusion. We will address the best interest analysis
regarding each parent in turn.
A. Father
In support of his contention that the trial court erred by finding that it was in the
Child‟s best interest to terminate his parental rights, Father argues that the court failed to
properly weigh the factor of his having made a lasting change in his circumstance such
that he could provide a safe and stable home. See Tenn. Code Ann. § 36-1-113(i)(1). We
disagree. As explained in previous sections of this opinion, we have determined that the
evidence does not preponderate against the trial court‟s finding that Father was not in a
position at the time of trial to provide a safe and stable home for the Child. Therefore, we
further determine that the evidence does not preponderate against the court‟s finding that
Father failed to make an adjustment of circumstance, conduct, or conditions as to make it
safe and in the Child‟s best interest to be in his home. See id.
The trial court‟s analysis indicates that it also explicitly weighed the following
statutory factors against preserving Father‟s parental rights: (2) failure to effect a lasting
adjustment after reasonable efforts by DCS for such a period of time that adjustment does
not reasonably appear possible; (4) lack of meaningful relationship between Father and
the Child; and (5) negative effect a change of caretakers and physical environment is
24
likely to have on the Child‟s emotional, psychological, and medical condition. See Tenn.
Code Ann. § 36-1-113(i).
Father argues that the trial court erred by not properly weighing what he asserts
was DCS‟s failure to extend reasonable efforts to assist him in effecting a lasting
adjustment. See Tenn. Code Ann. § 36-1-113(i)(2). He relies on our Supreme Court‟s
statement in In re Kaliyah S., 455 S.W.3d at 556, that “DCS‟s lack of reasonable efforts
may weigh heavily enough to persuade the trial court that termination of the parent‟s
rights is not in the best interest of the subject child.” But see In re Kaliyah S., 455
S.W.3d at 556 (explaining that “the extent of DCS‟s efforts remain a factor to be weighed
in the best-interest analysis, not an essential element that must be proven in order to
terminate the parental rights of the respondent parent.”).
In the instant action, the trial court found at each stage of the proceedings that
DCS had extended reasonable efforts to assist the parents. Father asserts that because
Ms. Dyer did not know Father‟s level of education and experience in response to a
question at trial and because DCS did not offer another drug screen after Father refused
the screen in February 2014, the trial court should have found that DCS failed to extend
reasonable efforts to assist Father. In contrast, we note, for example, that DCS
maintained contact with Father at all times except when he withdrew from contact;
brought Father back into permanency plan development following his extended absence;
helped Father to access a second domestic violence counselor when Father had difficulty
connecting with the first recommended instructor; arranged supervised visitation with the
Child, including accommodation of Father‟s frequent rescheduling; and conducted a
home visit of Paternal Grandmother‟s home for suitability. The evidence does not
preponderate against the trial court‟s finding that DCS exerted reasonable efforts to assist
Father or the court‟s weighing of this factor against preserving Father‟s parental rights.
In its argument regarding this issue, DCS particularly emphasizes Father‟s lack of
a meaningful relationship with the Child. See Tenn. Code Ann. § 36-1-113(i)(4). The
Child at the time of trial was three and one-half years old, and Father had disappeared
from her life for eighteen months during the time period she had been in protective
custody. Testimony demonstrated that when Father resumed visitation, the Child did not
know him and screamed when she was taken to visit him. By the time of trial, Father was
visiting with the Child for one to two hours a week. Ms. Dyer testified that the Child no
longer screamed when she was taken to visit Father but that she still resisted the visits
and often cried when she thought Ms. Dyer had arrived to take her to see Father.
In addition, the remaining factors cannot be said to weigh in favor of preserving
Father‟s parental rights to the Child. Father had resumed supervised visitation as of
December 2013, but testimony evinced that he cancelled or rescheduled visits frequently.
25
See Tenn. Code Ann. § 36-1-113(i)(3). Concerning additional statutory factors, Father
had been adjudicated neglectful toward the Child (factor 6); he had been incarcerated
through a conviction of reckless endangerment and had incurred additional misdemeanor
charges during the pendency of the proceedings, as well as having admitted to using
marijuana a few weeks prior to the Child‟s removal into protective custody (factor 7); and
he owed a child support arrearage to the extent that he was incarcerated in September
2014 for failing to purge a civil contempt sanction for nonpayment of child support
(factor 9). See Tenn. Code Ann. § 36-1-113(i). Upon a careful and thorough review of
the record, we conclude that there is clear and convincing evidence that termination of
Father‟s parental rights was in the Child‟s best interest.
B. Mother
In support of her argument that the trial court erred by finding that the best interest
factors weighed against maintaining her parental rights, Mother emphasizes her
testimony at trial that she was prepared to provide a stable home and that she was bonded
to the Child. The trial court‟s findings indicate that it explicitly weighed the following
statutory factors against preserving Mother‟s parental rights: (1) failure to make
adjustment of circumstance, conduct, or conditions as to make it safe and in the Child‟s
best interest to be in Mother‟s home; (2) failure to effect a lasting adjustment after
reasonable efforts by DCS for such a period of time that adjustment does not reasonably
appear possible; (4) lack of meaningful relationship between Mother and the Child; and
(5) negative effect a change of caretakers and physical environment is likely to have on
the Child‟s emotional, psychological, and medical condition. See Tenn. Code Ann. § 36-
1-113(i).
As discussed in previous sections of this opinion, we have determined that the
evidence does not preponderate against the trial court‟s finding that Mother was not
prepared at the time of trial to provide a safe and stable home for the Child. As to the
factor of a meaningful bond between parent and child, the court, in its remarks made at
the close of trial, noted Mother‟s regular visitation with the Child but stated that in the
court‟s perception, “mother‟s basically been a weekly playmate of this child and has a
friend relationship at best.” Mother at the time of trial was enjoying four hours per week
of unsupervised visitation with the Child in Mother‟s home. Ms. Angel, the Child‟s
transporter, acknowledged that the Child knew Mother and had a relationship with her.
Mother does not dispute, however, that the Child resided with her only during the
first four months of the Child‟s life, meaning that by the time of trial, the Child was three
and one-half years old and had only spent the first few months of her infancy in Mother‟s
care. In contrast, she had been in the foster parents‟ care for nearly three years. Ms.
Dyer testified that the Child “clung” to the foster parents and that when the time came to
26
visit Mother, the Child had “made it clear on several occasions that she didn‟t want to
go.” Ms. Dyer also expressed that the Child‟s day care had reported some behavioral
issues after the Child‟s visits with Mother. We emphasize again that the trial court‟s
determinations regarding witness credibility are afforded great weight on appeal. See
Jones, 92 S.W.3d at 838. We determine that although Mother maintained regular weekly
unsupervised visitation with the Child at the time of trial, see Tenn. Code Ann. § 36-1-
113(i)(3), the evidence does not preponderate against the trial court‟s finding that Mother
had failed to maintain a meaningful parent-child relationship, see Tenn. Code Ann. § 36-
1-113(i)(4).
In addition, the remaining applicable statutory factors also cannot be said to weigh
in favor of preserving Mother‟s parental rights to the Child. Mother had been adjudicated
neglectful toward the Child (factor 6); testimony indicated that she had neglected to
remove a safety hazard from her home (factor 7); and she owed a child support arrearage
of $7,000 for this Child at the time of trial (factor 9). See Tenn. Code Ann. § 36-1-113(i).
From a thorough examination of the record before us, we conclude that there is clear and
convincing evidence that termination of Mother‟s parental rights was also in the Child‟s
best interest.
VIII. Conclusion
The decision of the trial court is affirmed in part and reversed in part. We reverse
the trial court‟s findings upon the statutory ground of abandonment through failure to
provide a suitable home as to both Father and Mother. We affirm the trial court‟s
judgment in all other respects, including the termination of Father‟s and Mother‟s
parental rights to the Child. Costs on appeal are assessed equally to the appellants, Allen
C. and Annaliza H., and the appellee, the State of Tennessee, Department of Children‟s
Services. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court‟s judgment terminating parental rights and collection of
costs assessed below.
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THOMAS R. FRIERSON, II, JUDGE
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