In Re: Mya E.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 12, 2013 Session
IN RE MYA E. ET AL.
Appeal from the Juvenile Court for Davidson County
Nos. 2009-7016, 2009-7017 Betty Adams Green, Judge
No. M2012-02323-COA-R3-PT - Filed May 13, 2013
This is a termination of parental rights case involving a set of young twins, Mya E. and
Kaleah E. (“the Children”). The Children were born out of wedlock to Jasmine E.
(“Mother”) and Darius M. (“Father”) on June 1, 2008. The Children, found to be dependent
and neglected by Juvenile Court Order entered January 28, 2011, were placed in the custody
of their maternal grandmother, Olivia E. Olivia E. filed a petition seeking to terminate the
parental rights of Father and Mother on March 30, 2012. The petition alleged as grounds
statutory abandonment and persistence of conditions. Mother later joined in the petition to
terminate her parental rights. Following a bench trial, the trial court granted the petition to
terminate Father’s parental rights upon its finding, by clear and convincing evidence, that
Father had abandoned the Children by willfully failing to visit and support them. The court
also found clear and convincing evidence that the conditions leading to removal persisted and
were unlikely to be remedied in the near future. The court further found, by clear and
convincing evidence, that termination of parental rights was in the Children’s best interest.
Father has appealed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and J OHN W. M CC LARTY, J., joined.
James A. Rose, Nashville, Tennessee, for the appellant, Darius M.
Laura A. Stewart, Nashville, Tennessee, for the appellee, Olivia E.
OPINION
I. Factual and Procedural Background
At the time these Children were born, Mother was seventeen years old and residing
with the maternal grandfather. Although the Children initially lived with Mother, she later
relinquished residential care of them to Olivia E. in May 2009 when the maternal grandfather
moved to another state. In October 2009, Olivia E. filed a petition to terminate the parental
rights of both parents.1 In response, Father filed a counter-petition for custody. In April
2010, the parties participated in mediation and reached an agreement that the Children should
begin having visitation with each parent. Mother was allowed unsupervised visitation with
the Children so long as she did not permit her boyfriend to be present. Mother subsequently
violated the agreement, which resulted in the Children coming to live with Father. In June
2010, the court granted Father temporary legal custody of the Children and established a
visitation schedule with Olivia E.
The guardian ad litem filed a petition seeking to have the Children adjudicated
dependent and neglected on June 17, 2010. In August 2010, the paternal grandmother filed
a similar intervening petition, seeking to have custody of the Children returned to her. The
trial court conducted a hearing on November 29, 2010, on the pending petitions and found
the Children to be dependent and neglected. By Final Order of Adjudication and Disposition
entered January 26, 2011, the Court found, inter alia, by clear and convincing evidence as
follows:
Mya and Kaleah [E.] are dependent and neglected children pursuant to T.C.A.
37-1-102(b)(12)(B, (F), and (G). The perpetrators of the dependency and the
neglect are [Mother] and [Father].
Included in the trial court’s order were extensive findings as follows:
The Court specifically finds that Mya and Kaleah [E.] are dependent and
neglected children pursuant to T.C.A. 37-1-102(b)(12)(B), (F) and (G) because
[Father] has a serious drug problem that is untreated. [Father] has been given
ample opportunity (since the termination of parental rights petition was filed
in October 2009) to show this Court that he could be a parent to his children.
[Father] continues to fail drug screens for this Court and the General Sessions
Court. [Father] has not been honest about his drug problem and has not
1
This petition was voluntarily non-suited when custody of the Children was placed with Father in
June 2010.
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obtained drug treatment even though he had a DCS case manager who could
have arranged treatment for him. The children are also dependent and
neglected by [Father] because he was incarcerated for thirteen days (from
September 29 to October 11, 2010) while the children were in his temporary
legal custody. [Father] did not make any arrangements for the children other
than expecting that his mother would care for the children in his absence.
[Father] did not know how long he would be incarcerated. The Court suspects
[Father] will continue to violate his probation and will be re-incarcerated since
he willfully continues to use illegal substances.
The children are also dependent and neglected because [Father] has no
financial ability to care for his children, no job, and no prospect of a job
because of his chronic substance abuse.
The trial court also made the following significant finding:
It is alarming to the Court to discover the level of deception that has occurred
in this case. If the parties had been told the truth by [Father] or his mother,
Tonya [M.], about [Father’s] failed drug screens in March and April 2010 the
Court would never have placed the children in the temporary legal custody of
[Father] in June 2010.
By its order, the court placed full and sole legal custody of the children with Olivia E. The
court ordered that Father have no visitation with the Children pending further court order and
that Mother be allowed supervised visitation. The court further determined that Father and
Mother owed a legal duty to pay child support for the Children.
On March 30, 2012, Olivia E. filed the instant petition seeking to terminate the
parental rights of both parents. By her petition, she alleged the statutory grounds of
abandonment and persistent conditions. The court held a hearing on the petition on
September 10, 2012. At trial, Mother announced that she was joining in Olivia E.’s petition
to terminate her parental rights.
Following a bench trial, the trial court terminated Father’s parental rights based on
abandonment due to his willful failure to support and failure to visit, as well as persistence
of conditions. The court’s final order terminating parental rights included extensive, specific
findings of fact. The court’s findings included the following:
• [Father] attempted to alter his June 2, 2010 drug screen by diluting it,
used bleach to adulterate his July 9, 2010 drug screen, failed to appear
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for his October 4, 2010 and October 27, 2010 drug screens; failed his
March 2, 2010, April 22, 2010, July 23, 2010, and September 27, 2010
Metro Probation drug screens; and failed his December 28, 2010 and
January 4, 2011 drug screens.
• [Father] violated his probation on more than one occasion.
• [Father] was not truthful to the court during the proceedings taking
place in 2010-2011, which resulted in the January 28, 2011 order.
• [Father] pled guilty to possession or casual exchange of a controlled
substance on 04-20-2012, and stated during the trial on this petition that
a friend had given him the drugs. He could not provide the friend’s
name and simply testified that he would see this friend in “traffic.”
This court finds [Father’s] answer to not be credible.
• The findings of fact in the January 28, 2011 order also included
[Father’s] testimony that he was ADHD, needed to be evaluated for
medication, and that he had made an appointment with Centerstone for
mental health treatment.
• The order entered January 28, 2011 divests legal custody of Mya and
Kaleah [E.] from [Mother] and [Father].
• [Father] has been given services by DCS including parenting classes.
In addition he has been to two drug and alcohol programs. [Father]
specifically admits that he hid his drug problem from DCS thereby
preventing DCS from offering appropriate services to him.
• [Father] has no current employment, has applied to ten jobs in the
eighteen months since Ms. Olivia [E.] received custody of the children.
• [Father] has not paid any child support since February of 2011, at
which point he gave to Ms. Olivia [E.] a $100 money order.
***
• [Father] has no home and is living “pillar to post.”
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The court determined that it was in the Children’s best interest to terminate Father’s parental
rights.2 Father timely appealed.
II. Issues Presented
Father presents the following issues for our review:
1. Whether the trial court erred in terminating the parental rights of Father
based on abandonment for willful failure to support and willful failure
to visit.
2. Whether the trial court erred in terminating the parental rights of Father
based on persistence of conditions.
3. Whether termination of Father’s parental rights is in the Children’s best
interest.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586 (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:
2
The trial court noted that its findings were made pursuant to Tenn. Code Ann. §36-1-113, which
implies that the trial court found the requirement of clear and convincing evidence to be satisfied.
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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
The trial court terminated Father’s parental rights on the ground that he abandoned
the Children. Tennessee Code Annotated § 36-1-113(g)(1) (Supp. 2012) provides, as
relevant to this action, as follows:
(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 . . . .
Tennessee Code Annotated § 36-1-102(1)(A)(i) (2010) defines abandonment, in relevant
part, as:
For a period of four (4) consecutive months immediately preceding the filing
of a proceeding or pleading to terminate the parental rights of the parent(s) or
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guardian(s) of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent(s) or guardian(s) either have
willfully failed to visit or have willfully failed to support or have willfully
failed to make reasonable payments toward the support of the child . . . .
Pursuant to the statute, the court must find that a parent’s failure to visit or support was
willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has
previously explained:
The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
failed to visit or “willfully” failed to support the child for a period of four
consecutive months.
In re Audrey S., 182 S.W.3d at 863.
Failure to visit or support a child is willful when a person is “aware of his or her duty
to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable
excuse for not doing so.” Id. at 864. Further, failure to visit or to support is not excused by
another person’s conduct “unless the conduct actually prevents the person with the obligation
from performing his or her duty, or amounts to a significant restraint of or interference with
the parent’s efforts to support or develop a relationship with the child.” Id.This Court further explained:
The willfulness of particular conduct depends upon the actor’s intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a person’s actions
or conduct.
Id. (citations omitted).
A. Failure to Visit
Father argues that the trial court erred in finding that the statutory ground of
abandonment for failure to visit was proven. Father initially points out that the court had
restricted him from visiting the Children due to his substance abuse issues. He therefore
contends that his failure to visit should not be deemed willful. We disagree.
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The parties do not dispute that Father’s visitation was suspended by the court due to
his drug use until such time as Father could demonstrate that he was free of drugs. During
his testimony, Father made several significant admissions regarding the basis for the trial
court’s suspension of his co-parenting time, as follows: (1) custody of the Children had been
removed from him in 2010 because of his history of drug abuse, arrests, and a failed a drug
test; (2) his use of illegal drugs included marijuana and lortabs, as a method of stress relief;
(3) Father had failed several drug screens, either by testing positive for drugs such as cocaine
and opiates or by having the samples rejected as diluted or adulterated; and (4) he also failed
to appear for several drug screens.
Father further admitted that he knew he could have returned to court and sought
visitation had he been clean and sober, yet he did not. Father completed two drug and
alcohol rehabilitation programs but relapsed both times. By the time of trial, he claimed to
be clean of drugs but stated his longest period of sobriety had been approximately one month.
Father’s admissions at trial also addressed his credibility. He indicated that he was
abusing drugs when he was awarded custody of the Children in 2010 and that he had lied to
everyone, including the trial court, about it. At the time of trial, Father did not believe he had
a drug problem or needed to attend Narcotics or Alcoholics Anonymous meetings. He could
not take care of the Children at that time and stated that it might take him months or even a
year to get to the point where he could do so.
This Court has consistently recognized that a parent’s demeanor and credibility as a
witness “play an important role in determining intent, and trial courts are accordingly in the
best position to make such determinations.” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
Further, as Tennessee Code Annotated § 36-1-102(1)(G) expressly provides: “it shall not be
required that a parent be shown to have evinced a settled purpose to forego all parental rights
and responsibilities in order for a determination of abandonment to be made.” In this case,
the proof is undisputed that Father had not visited with the Children since the trial court
suspended his visitation some eighteen months before the termination of parental rights trial.
Father had also not returned to court, however, to have his co-parenting time with the
Children reinstated.
This Court has often held that when a parent’s visitation has been suspended by the
trial court due to substance abuse issues and the parent has the ability to have visitation
reinstated upon a showing of sobriety but fails to do so, that parent can be found to have
willfully failed to visit. See In re Elijah B., E2010-00387-COA-R3-PT, 2010 WL 5549229at *8 (Tenn. Ct. App. Dec. 29, 2010); Tenn. Dept. of Children’s Serv. v. J.A.H., E2005-
00860-COA-R3-PT, 2005 WL 3543419 at *6 (Tenn. Ct. App. Dec. 28, 2005). As elucidated
in J.A.H., “Father chose not to submit to the testing that was a precondition to further
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visitation . . . . Father’s choice in refusing to cooperate in this regard constituted a willful
decision to discontinue visiting his son.” 2005 WL 3545319 at *6. Similarly, in this case,
Father testified that he knew he could have asked the trial court to reinstate his visitation
upon a showing of sobriety, but he failed to do so at any time during the eighteen months the
Children were in the custody of Olivia E. We conclude that the trial court did not err in
finding by clear and convincing evidence that Father willfully failed to visit the Children.
Father also asserts that he had attempted telephone contact with the Children but that
his efforts were hampered by Olivia E. Olivia E. disputed Father’s testimony, however,
stating that she answered Father’s calls, that she allowed him to talk to the Children, and that
she returned any messages that were left. The trial court found her testimony to be credible.
Father’s argument in this regard is largely irrelevant, since he does not dispute that he never
sought visitation with the Children.
B. Failure to Support
Father further argues that the trial court erred in finding that his failure to support the
Children was willful. His position is premised upon the assertion that he was financially
unable to pay any support due to his lack of employment and income. Father entered into an
agreed order setting child support on October 28, 2011. He paid only $100 total in child
support, however, during the entire eighteen months the Children were in the custody of
Olivia E.
Father testified that he was physically able to work but could not find employment.
He had only applied for nine or ten jobs in eighteen months. Failure to support a child is
deemed “willful” when a person is “aware of his or her duty to visit or support, has the
capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so.”
Audrey S., 182 S.W.3d at 864. Willfulness of particular conduct depends upon the parent’s
intent, and intent must often be inferred from the circumstantial evidence, including a
parent’s actions or conduct. Id.The trial court found that Father’s testimony demonstrated a lack of effort in trying
to find employment. Our review of the record supports that determination. Father’s
submission of applications to ten potential employers in eighteen months translates into an
application about once every six weeks. This conduct demonstrates that Father’s attitude
toward finding employment was, at best, indifferent. The trial court also found that Father’s
testimony about being “given” drugs at the time of his last arrest was not credible, noting that
if Father was able-bodied enough to purchase drugs, he could have found a job. Again, trial
courts are in the best position to make a determination regarding a parent’s intent, based on
the parent’s demeanor and credibility as a witness. D.L.B., 118 S.W.3d at 367.
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Father failed numerous drug screens during the pendency of this case and was found
to have various substances in his system, including cocaine. Father’s claim that he lacked
financial resources when coupled with the fact that he was able to continually acquire drugs
strains credulity. As the trial court determined, if Father had the ability to procure drugs, he
should have had the capacity to provide support. Father presented no justifiable reason for
failing to do so. See Audrey S., 182 S.W.3d at 864. The evidence does not preponderate
against the trial court’s determination, by clear and convincing evidence, that Father had
willfully failed to support the Children.
V. Persistence of Conditions
Tennessee Code Annotated § 36-1-113(g)(3) provides the following as an alternate
ground for termination of parental rights:
(3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent(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 . . . .
By its order terminating Father’s parental rights, the trial court, inter alia, found that
the requirements of this statutory section had been satisfied:
Pursuant to T.C.A. § 36-1-113(g)(3), the conditions, which caused the removal
of these children from [Father’s] home in January 2011, have continued
unabated, and there is little likelihood that his situation would be remedied in
the near future. He is living “pillar to post,” he is not employed, he has
repeatedly been incarcerated; he failed drug tests during the pendency of the
case, and he pled guilty to possession of marijuana since the filing of this
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petition. Nothing has changed since this case began in 2010.
Father admits that he has been caught in a “vicious cycle of unemployment, mental health
issues, and drug addiction.” Despite regaining health insurance and taking his medication,
however, he claims that he has not had sufficient time to turn his life around.
With reference to evidence of his criminal history, Father admitted that he had
incurred charges of theft, alteration of a stolen item, and possession of controlled substances,
as well as probation violations. His most recent incarceration occurred about one month
before trial and was based on a controlled substance charge. He pled guilty to the charge but
indicated he could not remember the circumstances of that arrest. Father was caught in
possession of marijuana but could not remember the name of the friend from whom he said
it had been acquired.
By trial, these Children had been removed from Father’s care for eighteen months, and
the conditions leading to removal, i.e., Father’s drug problem and lack of financial stability,
still persisted. Father’s situation had not demonstrably changed since the dependency and
neglect finding in January 2011. The evidence clearly supports a determination that Father
never truly addressed his drug addiction, as he continued to accrue drug-related criminal
charges and avoid drug tests. Simply stated, he had no job, no home, and no stability of
home environment. Most significantly, Father conceded that at the time of trial, he was still
unable to care for the Children, and knew not when he would be able to provide such care.
Our review of the evidence supports the determination that there was little likelihood
of an early remedy to these conditions so that the Children could be safely returned to Father
in the near future. Notably, Father was in denial regarding his drug problem. Despite
completing two drug treatment programs, he returned to his use of drugs. Father did not
believe that he needed Narcotics or Alcoholics Anonymous meetings. He agreed that his
longest period of sobriety in recent history was about one month.
Father places great reliance upon this Court’s opinion in In re Joshua S.,
E2010-01331-COA-R3-PT, 2011 WL 2464720 (Tenn. Ct. App. June 16, 2011), wherein the
Court refused to find persistence of conditions had been proven because the parents had
successfully completed a substance abuse program and there was no proof that the parents
were still abusing drugs at the time of trial. Father’s reliance is misplaced. In this case,
while Father had attended two drug treatment programs, it was shown that he had returned
to his use of drugs thereafter. Further, there was proof that Father was still using drugs and
incurring criminal charges in relation thereto as recently as one month before trial. Unlike
the parents in Joshua S., who had remained free of illicit drugs for a significant period of
time, Father’s longest period of sobriety in recent years had only been about one month.
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Simply put, the evidence showed that Father had made some progress but fell far short of
remedying the underlying causes for the Children’s removal from his custody. Moreover,
the limited proof gave no indication that the persistent conditions would be remedied at an
early date. The evidence does not preponderate against the trial court’s finding that the
statutory ground of persistence of conditions was clearly and convincingly established.
VI. Best Interest of Children
Finally, Father contends that Olivia E. failed to show by clear and convincing
evidence that termination of his parental rights was in the Children’s best interest. When at
least one ground for termination of parental rights has been established, as here, the petitioner
must then prove by clear and convincing evidence that termination of the parent’s rights is
in the Children’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 1994).
When a parent has been found to be unfit by establishment of a ground for termination, the
interests of parent and child diverge, and the focus shifts to what is in the child’s best
interest. In re Audrey S., 182 S.W.3d at 877.
Tennessee Code Annotated § 36-1-113(i) (Supp. 2012) provides a list of factors the
trial court is to consider when determining if termination 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. Further, the best interest of a child must be determined from the child’s
perspective and not the parent’s. White, 171 S.W.3d at 194.
Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:
(1) Whether the parent or guardian has made such an adjustment
of 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
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established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol or
controlled substances as may render the parent or guardian
consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent’s or guardian’s mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
In the instant action, the trial court considered the above factors and found, inter alia,
as follows:
It is in the children’s best interest for their parent[s’] rights to be terminated.
These children have formed a tight knit family with Ms. Olivia [E.]. The
father has no relationship with his children, has not provided for them, and has
made no adjustment to his circumstances. His claim that he has now been
clean for two months cannot be taken seriously by this court when he has had
eighteen months to demonstrate that his children mean more to him [than] the
drugs. This is especially true considering he failed to appear for two random
drug screens ordered prior to trial. This shows the court he continued to use
illegal drugs. He has failed to take care of his mental health, has continued to
be dishonest with this court, has continued to have periods of incarceration.
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Our review of the record demonstrates that these findings are supported by the
evidence. By trial, Father had made no adjustment of circumstance, conduct, or conditions
so as to make it safe and in the Children’s best interest to be in his home. This was true
despite his having gone through two drug rehabilitation programs and having received other
available social services. Father has been abusing drugs for several years, and a lasting
adjustment does not reasonably appear possible.
Father had not visited with the Children and had only contacted them by phone three
to four times in eighteen months. The proof showed Father had no meaningful relationship
with the Children at the time of trial. Olivia E. testified that the Children did not know who
Father was. As grandmother, she was very bonded to the Children and they were to her as
well. She enjoyed residential care of the Children from May 18, 2009, to April 28, 2010,
and also from January 6, 2011, to the time of trial. Olivia E. testified that she loved the
Children and planned to adopt them as she desired for them to have permanency and security.
Clearly, a change of caretakers at this point would be detrimental to the Children both
physically and emotionally.
The proof further showed that Father had neglected the Children while they were in
his care, due to his substance abuse and criminal problems. He had no home at the time of
trial and was therefore unable to care for the Children or keep them safe. Father’s mental
illnesses impacted his ability to care for himself and the Children. As an additional factor to
be considered, Father had paid virtually no child support. From our examination of the
record before us and consideration of the statutory factors, we conclude that there is clear and
convincing evidence that termination of the Father’s parental rights was in the Children’s
best interest.
VII. Conclusion
The judgment of the trial court terminating the parental rights of Father is affirmed.
Costs on appeal are taxed to appellant, Darius M. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of
costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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