IN RE AUTUMN L.

02/08/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 7, 2019
IN RE AUTUMN L. ET AL.
Appeal from the Chancery Court for Lewis County
No. 2016-CV-45 Michael Binkley, Judge
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No. M2018-01184-COA-R3-PT
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This is a termination of parental rights case involving two minor children. Appellants,
who have custody of the children, appeal the trial court’s denial of their petition to
terminate Mother/Appellee’s parental rights. The trial court found that Appellants met
their burden to show the grounds of persistence of the conditions that led to the children’s
removal from Appellee’s custody and abandonment by wanton disregard by an
incarcerated parent. However, the trial court found that termination of Appellee’s
parental rights was not in the children’s best interests. We affirm the trial court’s
findings as to the grounds for termination but reverse its finding as to best interests. We
remand the case for entry of an order terminating Appellee’s parental rights to the
children.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part, Reversed in Part, and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and W. NEAL MCBRAYER, JJ., joined.
Patricia W. Holder, Centerville, Tennessee, for the appellants, Barry C. and Loreita C.1
Dana Lloyd Dye, Centerville, Tennessee, for the appellee, Lori B.
Joshua L., Hohenwald, Tennessee, appellee, pro se.
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names so
as to protect their identities.
OPINION
I. Background
Autumn L. was born in September 2006 to Lori B. (“Appellee,” or “Mother”) and
Joshua L.2 Max C. (together with Autumn L., “Children”) was born in January 2008 to
Appellee and Douglas C.3 The Department of Children’s Services (“DCS”) became
involved with this family in December 2008 when it received a referral of drug-exposed
children. Susan Franks, a DCS Child Protective Services worker, investigated the
allegations, which involved Lori B. using drugs around the Children and blowing
marijuana in their faces to get them to go to sleep. Meth residue was also discovered in
the home, and Lori B. and Douglas C. admitted to domestic violence issues.
In 2009, Douglas C. filed a petition for custody of the Children in the Juvenile
Court of Lewis County. Douglas C. averred that the Children were dependent and
neglected due to Mother’s drug use. At the time Douglas C. filed his petition, Mother
was not living in his home. According to Ms. Frank’s testimony, Mother and the
Children were living with Mother’s sister. Mother ultimately stipulated to dependency
and neglect, and the juvenile court awarded Douglas C. custody of the Children by agreed
order of August 17, 2009. The juvenile court awarded Mother supervised visitation and
ordered DCS to provide services to Mother.
In August 2011, Douglas C. was arrested on charges of sexual abuse against his
daughter, Max’s half-sister.4 On August 2, 2011, DCS filed a dependency and neglect
petition in the juvenile court to remove the Children from Douglas C.’s custody.
Although there is not an order on the petition in our record, it is undisputed that the
Children were removed from Douglas C.’s custody and placed with Carolyn H., a
paternal great-aunt. The Children remained in Carolyn H.’s custody until 2014.
The Children attended church with Carolyn H. and met Barry and Loreita C.
(together “Appellants”) there. The Children began to sit with Appellants at church. This
progressed to the Children spending time with Appellants outside church. Appellants,
who are both teachers, began to pick the Children up from school. Eventually, the
Children stayed with Appellants on weekends, and the bond between them grew. In
2
Joshua L.’s parental rights were terminated by default pursuant to the trial court’s order of
September 26, 2017. He does not appeal.
3
Douglas C.’s parental rights were terminated by order of May 30, 2018. He then appealed to
this Court; however, Douglas C. subsequently filed a motion for voluntary dismissal of his appeal under
Tennessee Rule of Appellate Procedure 15(a). By order of September 26, 2018, this Court granted
Douglas C.’s motion, thereby dismissing him from the appeal.
4
A jury subsequently convicted Douglas C. of four counts of rape of a child, and he was
sentenced to twenty years on each count to run consecutively. At the time of the hearing, he was
incarcerated.
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2014, Carolyn H. approached Appellants and asked them to take the Children due to
Carolyn H.’s age and health issues.
On August 27, 2014, Appellants filed petitions, in the juvenile court, seeking
custody of the Children. Mother waived an adjudicatory hearing, agreeing that the
Children were dependent and neglected. On December 3, 2014, the juvenile court
entered an adjudicatory order, finding that the Children were dependent and neglected
and placing custody with Appellants; Mother was awarded supervised visitation. The
Children have remained in Appellants’ home since that time.
DCS Family Support worker, Cynthia Primm, was assigned to the Children’s case
to facilitate supervised visitation, drug screens, and other services for Mother. Ms.
Primm was also charged with facilitating mental health evaluations for the Children. Ms.
Primm scheduled a meeting to establish a visitation plan, but Lori B. did not attend. On
February 13, 2015, at a post-dispositional hearing, Ms. Primm attempted to conduct a
drug test on Mother. After Ms. Primm requested the drug test, Lori B. left the courthouse
and did not return. The juvenile court ordered the Children to remain in Appellants’
custody. DCS was granted leave to close its case with no further services to Mother
because of her noncompliance with DCS.
Appellants have been married since 2003. Loreita C. is a second grade teacher,
and Barry C. teaches high school math to special education students. A January 2, 2016
home study, which was filed with Appellants’ petition for termination of parental rights
and adoption, indicates that Appellants have a stable and loving home. The Children are
safe, and all of their needs are met. Since the Children came to live with Appellants,
Loreita C. has given birth to the Appellants’ biological child, who was eight months old
at the time of the hearing. The Children consider the baby to be their brother, and they
call Appellants “mom” and “dad.” The Children are involved in many extracurricular
activities and sports, and they have bonded not only with Appellants but also with
Appellants’ extended family.
The Children’s Mother, Lori B., has a protracted history of drug use and criminal
activity. At the time of the hearing on the petition to terminate her parental rights,
Mother was thirty years old. She candidly admitted to illegal drug use, specifically
methamphetamine and marijuana, since age eighteen. Lori B. and Autumn began living
with Douglas C. in 2006, when Autumn was approximately one month old. They lived
together until approximately 2009, when Mother and the Children moved in with
Mother’s sister and Douglas C. filed his petition for custody of the Children, see supra.
Despite Douglas C.’s arrest on four counts of rape of a child, Lori B. moved back in with
Douglas C. and lived with him from 2011 until April 2014, when she was incarcerated.
Douglas C. was later convicted of the four counts of rape of a child. At the hearing on
the petition to terminate her parental rights, Mother testified that she did not believe
Douglas C. was guilty of the offenses for which he was convicted.
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Concerning Lori B.’s criminal history and incarcerations, on October 4, 2010, she
pled guilty to the charge of promotion of the manufacture of methamphetamine in Maury
County and was placed on diversion. On December 1, 2011, her diversion was revoked,
a four-year sentence was imposed, and she was placed on probation. On December 6,
2012, her probation was revoked and extended for an additional six months; on June 14,
2014, her probation was again revoked and extended. Mother’s repeated revocations
were all due to failed drug tests.
Lori B. testified that by March of 2014, she was in “active addiction.” On March
26, 2014, Mother was arrested, in Lewis County, and charged with possession of drug
paraphernalia, resisting arrest, and assault. In April 2014, Mother was incarcerated in
Maury County; she was released in September 2014. From the time of her release until
approximately January 2015, she lived with a friend. In January 2015, Mother moved in
with her boyfriend, Bob Z. While living with Bob Z., Mother testified that she relapsed
on methamphetamine and alcohol.
Mother’s last supervised visit with the Children occurred on January 11, 2015. On
April 11, 2015, Lori B. went to Appellants’ home, where she had some interaction with
the Children, who were playing outside. Loreita C. testified that Mother threatened to
take the Children and that the Children were very frightened by Mother’s behavior.
Loreita C. called the police, and Lori B. was arrested for aggravated criminal trespass.
Thereafter, Mother committed several additional criminal acts in Lewis County. On
April 17, 2015, she broke windows out of two vehicles, for which she was charged with
vandalism over $1,000. On April 19, 2015, Mother committed aggravated burglary of a
home. She stole the homeowner’s vehicle, for which she was charged with theft over
$10,000. At the time of her arrest, Lori B. was also charged with driving on a suspended
license. She was remanded to jail on April 20, 2015. On July 15, 2015, Lori B. pled
guilty to all of the Lewis County charges and was incarcerated until July 2017.
While incarcerated, Lori B. sent letters to the Children and called them. The
Children, however, have expressed their desire to have no further contact with her. At
the September 2017 hearing, Mother testified that she is still an addict, but she is in
recovery. On or about July 21, 2017 (approximately one month before the hearing), Lori
B. entered a rehabilitation program. At the time of the hearing, she was living in a “re-
entry” facility and testified that the facility would not allow children to live there.
Mother further testified that she attended at least four NA/AA meetings per week, along
with counseling and therapy. Mother testified that she was on “Step 2” of her twelve-step
program, and she expected to complete the program on January 21, 2018. At the time of
the hearing, Mother had passed all drug tests administered as part of her recovery
program. There is no evidence concerning whether Mother, in fact, completed the
program successfully. The trial court’s final order notes that no motion was filed to
reopen proof on this question.
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While Mother was incarcerated in Lewis County, on April 28, 2016, Appellants
filed their initial petition for termination of her parental rights and for adoption.
Appellants were granted leave to file an amended petition on August 21, 2017. As
grounds for termination of Mother’s parental rights, Appellants alleged: (1) abandonment
by willful failure to visit and support; (2) persistence of the conditions that led to the
Children’s removal from Mother’s custody; and (3) abandonment by an incarcerated
parent by wanton disregard. Counsel was appointed to represent Mother, and a guardian
ad litem was appointed for the Children.
The hearing on Appellants’ petition took place on September 26 and 27, 2017. By
order of May 30, 2018, the trial court found that Appellants had met their burden to
show, by clear and convincing evidence, the grounds of persistence of the conditions that
led to the Children’s removal and abandonment by an incarcerated parent by wanton
disregard. Although the trial court found grounds for termination of Mother’s parental
rights, the court ultimately held that termination of her rights was not in the Children’s
best interest and denied Appellants’ petition. They appeal.
II. Issues
There are two dispositive issues:
1. Whether the trial court erred in finding that Appellants met their burden to prove at
least one ground for termination of Appellee’s parental rights.
2. Whether the trial court erred in finding that Appellants failed to meet their burden to
show that termination of Appellee’s parental rights is in the children’s best interest.
III. 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, 651 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. 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 W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). 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).
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Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest 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. at 653.
In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial 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 trial 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).
IV. Grounds for Termination of Parental Rights
As noted earlier, the trial court found that Appellants met their burden to show two
statutory grounds for termination of Appellee’s parental rights: (1) persistence of the
conditions that led to the Children’s removal from Appellee’s custody, Tenn. Code Ann.
§ 36-1-113(g)(3); and (2) abandonment by an incarcerated parent by wanton disregard,
Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv). Although only one ground
must be proven by clear and convincing evidence in order to terminate a parent’s rights,
the Tennessee Supreme Court has instructed this Court to review every ground relied
upon by the trial court to terminate parental rights in order to prevent “unnecessary
remands of cases.” In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010).
Accordingly, we will review both of the foregoing grounds.
A. Persistence of the Conditions that Led to the Children's Removal
Tennessee Code Annotated Section 36-1-113(g)(3) provides that termination of
parental rights may be based on persistence of conditions. Persistence of conditions is
defined as:
(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:
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(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 an
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.
The purpose behind the “persistence of conditions” ground for terminating
parental rights is “to prevent the child’s lingering in the uncertain status of foster child if
a parent cannot within a reasonable time demonstrate an ability to provide a safe and
caring environment for the child.” In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct.
App. 2010), overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn.
2015).
In In re Audrey S., this Court held that, “based on the statutory text and its
historical development, [the ground of persistence of conditions found in Tennessee Code
Annotated Section 36-1-113(g)(3)] applies as a ground for termination of parental rights
only where the prior court order removing the child from the parent’s home was based on
a judicial finding of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d 838,
872 (Tenn. Ct. App. 2005). Here, the Children were removed from Mother’s custody in
2009 under an order finding the Children to be dependent and neglected. As discussed
above, the finding of dependency and neglect was based on Mother’s illegal drug use and
inability to provide the Children a suitable and safe home.
Concerning this ground, in its May 30, 2018 order, the trial court found, in
relevant part:
The record here clearly establishes [Mother’s] addiction is significant, as
evidenced by her past relapses. In addition, [Mother’s] living situation in
the recovery facility prevents her from permitting the children [to reside]
with her in her current residence. It appears to this Court, further, the
remaining factors for this particular ground have been satisfied by the
[Appellants]. [Mother’s] continued struggles with her addiction do
constitute a persistence of condition which does not appear to this Court to
be able to be remedied [at] an earlier time to allow the children to return to
[Mother’s] custody. Additionally, the record is clear the children’s current
living situation is in a state of flux, thus preventing the children from
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integration into a safe, stable, and permanent home.
The record supports the trial court’s findings. The Children have been removed
from Mother’s custody since 2009. At the time of removal, Max was one year old, and
Autumn was three. In her testimony, Mother was candid about the fact that she has
abused drugs since at least the age of eighteen. She testified concerning her struggles
with sobriety and relapses. Clearly, Mother’s drug abuse has contributed to the criminal
charges she has accrued since 2010. Mother testified that she was in “active addiction”
when she was arrested on these charges. Through diversion, probation, and incarceration,
she has had many opportunities to address her substance abuse issues so as to be able to
parent these Children. She has been provided services by DCS. The record, however,
clearly shows that during the eight years (at the time of the hearing) the Children had
been in the custody of others, she has shown a pattern of recidivism as to both her
criminal activity and drug use. In fact, the record shows that she has only recently
attempted to seriously address her drug use by entering treatment, on July 21, 2017, after
her release from incarceration. While we certainly give Mother credit for her decision,
there is no evidence to show that Mother’s sobriety is permanent. See, e.g., In re
Victoria H., No. M2017-01162-COA-R3-PT, 2018 WL 1092156, *10 (Tenn. Ct. App.
Feb. 27, 2018) (“Father’s recidivism and frequent returns to jail do not bode well for his
ability to provide a long-term home for the Child.”). Here, Mother has an admitted
history of relapse. Her mother, Crystal B., testified that Lori B. attempted drug rehab in
the past, sometime in 2010 or 2011, but she did not complete the program. Furthermore,
there is no evidence that Mother has successfully completed the program she entered in
July 2017, nor is there any evidence concerning Mother’s current living situation. At the
time of the hearing, she was living in a re-entry facility that did not allow children to
reside there. Mother’s testimony shows that when not incarcerated, her living situation is
rather transient. After release from incarceration in Maury County, she stayed with a
friend and then moved in with Bob Z. before relapsing and incurring more criminal
charges.
Perhaps the most compelling evidence concerning Mother’s inability to
permanently remedy the conditions that led to the Children’s removal comes from the
Children themselves. The Children gave their testimony with only the trial judge and the
attorneys present. Autumn, who was eleven at the time, testified:
A. . . . I don’t think that [Mother] will change because she keeps saying she will,
but she never does. (Gets emotional).
Q. Have you been aware that in the past she’s said she was going to change? Has
she ever said she’s going to change in the past?
A. Yes, she has.
Q. Okay. And you don’t think she ever will?
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A. I don’t think so.
Q. Okay. So it kind of makes it hard to trust this time if she’s going to change?
A. It does.
Q. Would you like to see her change.
A. I would.
(Parenthetical in original).
Meanwhile, the evidence clearly establishes that the Children have, for perhaps the
first time in their lives, found a safe, stable, and permanent home with Appellants. As
discussed in detail below, they have both expressed their desire to no longer have contact
with Lori B. and to remain with Appellants. It is clear from a review of the Children’s
respective testimony, that the prospect of seeing Lori B. causes them worry and stress.
Appellants have petitioned to adopt Max and Autumn. Based on the foregoing
discussion, we agree with the trial court that the continuation of their relationship with
Lori B. will greatly diminish their ability to integrate into Appellant’s home and, as such,
will cause them undue anxiety. Accordingly, we affirm the trial court’s finding that
Appellants have met their burden to show that the conditions that led to the Children’s
removal persist.
B. Abandonment by an Incarcerated Parent by Wanton Disregard
Tennessee Code Annotated Section 36-1-102 defines “abandonment,” in relevant
part as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
***
(iv) A parent ... is incarcerated at the time of the institution of an action or
proceeding to declare a child to be an abandoned child, or the parent ... has
been incarcerated during all or part of the four (4) months immediately
preceding the institution of such action or proceeding, and ... the parent ...
has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child[.]
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Tenn. Code Ann. § 36-1-102(1)(A)(iv). Tennessee Code Annotated Section 36-1-
102(1)(A)(iv) applies only where “the parent ... has been incarcerated during all or part of
the four (4) months immediately preceding the institution of [a parental termination]
proceeding.” See In re Keith W., No. W2016-00072-COA-R3-PT, 2016 WL 4147011, at
*6 (Tenn. Ct. App. Aug. 3, 2016) (holding that the incarcerated parent definitions for
abandonment did not apply because the father was not incarcerated at or in the four
months preceding the filing of the termination petition); In re Navada N., No. M2015-
01400-COA-R3-PT, 2016 WL 3090908, at *14 (Tenn. Ct. App. May 23, 2016)
(describing incarceration within the four months preceding the filing of the termination
petition as a “condition precedent” to the application of the abandonment definitions
under section 36-1-102(1)(A)(iv)). Here, Appellants filed their petition for termination of
Appellee’s parental rights on April 28, 2016. Appellee testified that she was incarcerated
from April of 2015 until July of 2017. Accordingly, the threshold criterion for
application of this ground is met.
Concerning what constitutes wanton disregard, for purposes of this ground, this
Court has explained that:
Incarceration alone is not conclusive evidence of wanton conduct
prior to incarceration. In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct.
App. 2005). Rather, “incarceration serves only as a triggering mechanism
that allows the court to take a closer look at the child’s situation to
determine whether the parental behavior that resulted in incarceration is
part of a broader pattern of conduct that renders the parent unfit or poses a
risk of substantial harm to the welfare of the child.” Id. The statutory
language governing abandonment due to a parent’s wanton disregard for
the welfare of a child “reflects the commonsense notion that parental
incarceration is a strong indicator that there may be problems in the home
that threaten the welfare of the child” and recognizes that a “parent’s
decision to engage in conduct that carries with it the risk of incarceration is
itself indicative that the parent may not be fit to care for the child.” Id.
In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *5 (Tenn. Ct. App.
Dec. 22, 2009). We further note that the ground of abandonment by wanton disregard
does not require that the conduct at issue occur within the four months prior to
incarceration. In re Audrey S., 182 S.W.3d at 865 (“This test has no analog to the first
statutory definition of abandonment, and it is not expressly limited to any particular four-
month period.”). Rather, Tennessee courts may consider the parent’s behavior
throughout the child’s life, even when the child is in utero. See In re A.B., No. E2016-
00504-COA-R3-PT, 2017 WL 111291, at *10 (Tenn. Ct. App. Jan. 11, 2017) (“For a
child in utero, we primarily have found wanton disregard where a parent, after learning of
the pregnancy, commits the crime for which he or she is subsequently incarcerated.”); but
see In re Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn.
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Ct. App. June 9, 2015) (concluding that father’s actions that led to his incarceration did
not constitute wanton disregard for the child’s welfare because father did not know that
mother was pregnant with his child). “The actions that our courts have commonly found
to constitute wanton disregard reflect a ‘me first’ attitude involving the intentional
performance of illegal or unreasonable acts and indifference to the consequences of the
actions for the child.” In re Anthony R., 2015 WL 3611244, at *3.
The trial court made the following specific findings concerning the ground of
abandonment by an incarcerated parent by wanton disregard:
[Appellee’s] criminal history . . . clearly establishes [that Appellee] has
been given opportunities by the courts to reevaluate her choices, but
instead, fell back into a pattern of drug abuse and criminal activity. This
activity clearly indicates a wanton disregard for the welfare of her children
by her continued, persistent abuse of drugs and by incurring new criminal
charges even after being granted probation.
Therefore, the Court finds this statutory ground for termination of
parental rights has been established by clear and convincing evidence.
The record supports the trial court’s findings. We have previously discussed
Mother’s recidivism and relapse issues. From the record, Mother’s criminal activity
began after the Children were born, i.e., in 2010. By her own testimony, her illegal drug
use also increased after Autumn and Max were born. As noted by the trial court, Mother
has been given ample opportunity to change her life. She was granted diversion, which
was revoked due to drug use. She was granted probation, which was revoked due to drug
use. She was incarcerated in Maury County but accrued additional criminal charges in
Lewis County after her release. Only after her incarceration in Lewis County and the
filing of the petition to terminate her parental rights has Mother attempted to complete a
drug rehabilitation program.
V. Best Interests
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. 2004). As the Tennessee Supreme Court recently explained:
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
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remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child....” Tenn.
Code Ann. § 36-1-101(d) (2017).
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
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, to-wit:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child.
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent's or guardian's home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
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(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 . . . ;
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.
White, 171 S.W.3d at 194.
As set out in its May 30, 2018 order, the trial court considered all of the foregoing
statutory factors except number 8 (which the trial court found inapplicable based on the
lack of evidence concerning Mother’s mental health). The trial court ultimately
concluded that
[a]lthough it is readily apparent to this Court it is not in the best interests of
the children to presently be reunited with their biological parents in a
permanent living environment, the Court is not convinced the termination
of the parental rights of [Mother] is in the children’s best interests. It
appears to this Court [that Mother], although [she has] admittedly made
significant mistakes in her past, is on the road to recovery. The Court notes
the desires of the children to remain with the [Appellants]; however, the
preferences of the children are not the standard required by the statute.
Rather, the Court must make its analysis based upon the clear and
convincing evidence of the best interests of the children. The Court finds
the [Appellants] have not satisfied this incredibly high standard of proof by
proving the best interest of the children are satisfied by the termination of
the parental rights of their biological mother. . . .
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Based on its conclusion that termination of Mother’s parental rights is not in the
Children’s best interests, the trial court denied Appellants’ petition as to Mother.
Turning to the record and the trial court’s specific findings regarding the statutory
factors, we agree with the trial court’s conclusion that Mother has maintained contact
with the Children under factor three. The evidence shows that, during her incarcerations,
Mother continued to contact the Children through calls and letters. After her release, she
attempted to see them, although she was not always successful—either due to timing or
to the Children not wanting to see her. She has provided them with gifts, which appear to
be consistent with her means. Unfortunately, this is the only statutory factor that weighs
in Mother’s favor. Despite Mother’s attempts to remain relevant in her Children’s lives,
the proof shows, under statutory factor four, that no meaningful relationship has been
established between them.
Although, as set out in context above, the trial court gave little consideration to the
Children’s testimony, after review, we conclude that their respective statements are quite
compelling. Max, who was nine at the time of his testimony and one at the time he was
removed from Mother’s custody, testified that, “I don’t think I really ever lived with
[Mother].” He referred to Mother as “Lori” and to Appellants as “mommy” and “daddy.”
Max adamantly insisted that he “didn’t want to live with Lori and that [he wanted] her to
leave him alone.” Likewise, Autumn, who was eleven at the time of the hearing and
three when she was removed from Mother’s custody, stated that she did not want any
further contact with Mother “[b]ecause she doesn’t feel like a real mother to me because
she never has been.” The evidence corroborates Autumn’s statement. As discussed
above, the Children were removed from Mother’s custody at an early age and have little
or no memory of living with her. They have had only sporadic contact with her
throughout their lives. As such, they do not have a meaningful relationship with her.
Concerning factor six, whether a person residing with the parent has shown sexual
abuse toward a child, the trial court noted the fact that “[a]lthough [Mother] did not live
with [Douglas C.] at the time of the abuse [i.e., four counts of rape of a child, his own
daughter], she did subsequently move back in with him after her release from custody,
and [Mother] has expressed she believes [Douglas C.] is innocent.” The trial court
simply concludes that these facts “weigh[] against . . .[Mother].” Mother’s statements
raise a more urgent concern in this Court’s mind. The mere allegation of such conduct on
the part of Douglas C., much less the fact that he was convicted of these crimes by a jury,
would raise, in any reasonable parent, an impetus to protect his or her child from this
man. Appellee, however, knowing the allegations against Douglas C., moved into his
home and protests his innocence even at the hearing to terminate her parental rights. So,
while we agree that this factor weighs against her, we further conclude that it shows a
lack of reasoned judgment and protective impulse that a parent must have.
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As to factor seven, concerning Mother’s living situation, and factor nine,
concerning the payment of child support, the trial court correctly concluded that these
factors weigh against Mother. It is undisputed that at the time of the hearing, she was
living in a re-entry facility where the Children could not reside. As discussed in detail
above, Mother’s ability to provide a suitable home has not been shown. It is also
undisputed that Mother has not paid any support for these Children. Mother has had only
sporadic employment, and there is no evidence that she has maintained any job for more
than a few weeks or a month. Nonetheless, when she had employment, she did not
attempt to provide any support. We note that she was employed at a local restaurant at
the time of the hearing on the petition to terminate her parental rights; however, as with
the housing, there is no proof of long-term, stable employment.
After our review of the record, we are most troubled by the trial court’s holdings
regarding statutory factors one and two. As to the question of whether Mother has made
an adjustment of circumstance, conduct or conditions as to make it safe for the Children
to be in her home, the trial court found:
As to [Mother], it appears as though this factor may weigh in her favor. At
the time of the September 2017 hearing, [Mother] was residing in a
recovery facility, addressing her drug addictions, maintaining employment .
. . and developing habits that will, hopefully, address her addiction.
[Mother] admits she is an addict, but she has started the process to make
changes to her lifestyle in order to address the issues. [Mother] attends four
NA/AA meetings a week and goes to four classes during the week for
counseling, therapy and dialectical-behavior therapy. Although there is not
any evidence in the record, [Mother] anticipated completion of her re-entry
program was January of 2018. Although at the hearing [Mother] admitted
she was not yet at a place in her recovery to provide a home for her
children, she has been taking steps to adjust her circumstances in order to
be able to provide a safe and suitable living situation for the children.
Concerning factor two, whether Mother “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,” the trial court’s order states that
“this Court is under the impression [Mother] is making the strides to create a lasting
adjustment to her condition. This is evidenced by the factors discussed above.
Therefore, this fact, again, appears to weigh in her favor.” We disagree.
As discussed above, in reaching its conclusion that the Appellants met their
burden to show the grounds of persistence of conditions and abandonment by wanton
disregard, the trial court relied on the same set of facts that it relied on in its best interests
analysis. The trial court held that the same facts met the clear and convincing standard
vis-à-vis the grounds for termination but found that these same facts did not provide clear
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and convincing proof that termination of Mother’s parental rights is in the Children’s best
interests. This Court has explained:
The term best interest is not defined by statute. With regard to best interest,
Corpus Juris Secundum: Infants states:
As a general rule, the best interests of the child concerned are
an important consideration where the termination of parental
rights is sought, and, in fact, have been described as the
primary or paramount consideration.... The same factors
which show parental inability may also show that the
termination of parental rights would be in the children's best
interest.
43 C.J.S. Infants § 22 (2012). Thus, the grounds for termination
themselves may also show that termination is in the child’s best interest.
In re Dominique L.H., 393 S.W.3d 710, 717 (Tenn. Ct. App. 2012). As discussed above,
the burden is the ultimately the same for both inquiries, yet the trial court refers to the
standard in its best interest analysis as “incredibly high.” From the conflicting rulings,
we conclude that the trial court applied a higher standard of proof than clear and
convincing to the best interests analysis. Having determined that the trial court’s rulings
regarding the grounds were correct, we now conclude that its rulings regarding best
interests are not.
To put a finer point on it, best interest factors one and two are written as faits
accomplis, i.e., things that have been accomplished and are presumably irreversible.
Specifically, these statutory factors ask the court to consider whether the parent “has
made such an adjustment. . .” and whether the adjustment is permanent. Based on its
statements, supra, it appears that the trial court focused its best interests analysis on
Mother’s recent attempt at sobriety but did not weigh her past behaviors, relapses, and
recidivism. As discussed in detail above, Mother has been given ample opportunity to
change her destructive patterns. Despite these opportunities, the record shows that
Mother’s decision to enter the drug treatment facility was made only after Appellants
filed their petition to terminate her parental rights and only two months before the hearing
thereon. However, the sole evidence of her enrollment in this treatment program is from
Mother’s own testimony, and there was no corroborating evidence. Likewise, there is no
evidence that any recovery she may achieve in the program will be permanent; this is
especially so in view of her admitted relapses after previous attempts at sobriety. In In re
T.G.A., et al., No. E2014-01195-COA-R3-PT, 2015 WL 381478 (Tenn. Ct. App. Jan. 29,
2015), this Court affirmed the termination of a father’s parental rights to two children.
Concerning the children’s best interests, and specifically statutory factors one and two,
this Court noted that
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the proof gave no indication of a lasting adjustment or change of
circumstances on Father’s part with respect to his admitted drug abuse.
Inpatient treatment was not successful and the only “proof” that he recently
ended his drug use was Father’s uncorroborated testimony. Father’s failure
to address his drug problem until the “eleventh hour” left him unable to
provide any evidence that he could do the other things necessary to regain
custody including providing a safe, stable home for the Children and an
income to support the Children’s needs.
In re T.G.A., et al., 2015 WL 38178, *5. The same is true here.
While Mother has relapsed and accrued more criminal charges, the Children have
been moved from home to home—first with Douglas C. and then with Carolyn H. Now,
in Appellants’ home, they have found stability and safety. Appellants want to adopt these
Children, and both Children testified that they wish to stay with Appellants permanently.
They consider Appellants to be their parents, and they are bonded with their new brother
and their extended family. They are adamant that they want no further contact with Lori
B., and it is clear from their testimony that contact with Lori B. causes them anxiety.
These Children deserve a peaceful home, which they have found with Appellants. To
make any change to that situation would clearly cause them emotional and psychological
damage. Accordingly, we reverse the trial court’s holding that termination of Lori B.’s
parental rights is not in the Children’s best interests, and we remand the case for entry of
an order terminating her parental rights.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s holdings as to the grounds of
persistence of the conditions that led to the Children’s removal and abandonment by
wanton disregard. We reverse the trial court’s holding that termination of Appellee’s
parental rights is not in the Children’s best interests. The case is remanded for entry of an
order terminating Appellee’s parental rights to the Children and for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the
appeal are assessed to the Appellee, Lori B., for all of which execution may issue if
necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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