In Re: Johnny J.E.M.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 3, 2012
IN RE JOHNNY J.E.M.
Appeal from the Circuit Court for Polk County
No. CV-11-009 J. Michael Sharp, Judge
No. E2011-02192-COA-R3-PT-FILED-MAY 29, 2012
This is a termination of parental rights case with respect to Johnny J.E.M. (“the Child”), the
minor son of Amanda M. (“Mother”) and Joshua D. (“Father”). The Department of
Children’s Services (“DCS”) removed the Child from Mother’s home as a result of “serious
environmental neglect.” The Child was adjudicated dependent and neglected in Mother’s
care; he had no relationship with Father, who was serving a lengthy prison sentence
throughout these proceedings. After taking the Child into custody, DCS soon placed him
with Janice M. (“Foster Aunt”) and her husband, Sonny M. (collectively “Foster Parents”),
the prospective adoptive parents, where he remained for a year and a half before DCS sought
to permanently sever the rights of the biological parents to the Child. Following a bench
trial, the court granted the petition to terminate based on its dual findings, by clear and
convincing evidence, that multiple grounds for termination were established as to both
parents, and that termination was in the best interest of the Child. Mother and Father,
represented by separate counsel, appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Sarah E. Coleman, Cleveland, Tennessee, for the appellant, Amanda M.
Wilton Marble, Cleveland, Tennessee, for the appellant, Joshua D.
Robert E. Cooper, Jr., Attorney General and Reporter, Marcie E. Greene, Assistant Attorney
General, Office of the Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.
No appearance by Guardian ad Litem.
OPINION
I.
Trial was held in August 2011. Mother appeared in person, while Father participated
by telephone from prison. He was represented in court by counsel. The proof showed that
Father and Mother met in high school. Mother became pregnant when she was 21 and Father
was 17; a paternity test established that Father was the Child’s biological parent. Mother and
Father did not continue their relationship, but Mother sent him pictures of the Child and,
according to Father, Mother allowed him to see the Child before he was incarcerated for his
most recent convictions.
DCS’s involvement with Mother and her family reached back to cases involving
Mother and her sister, Rosemary, while they were minors in the care of their mother, Mary
M. (“Maternal Grandmother”). DCS became involved with Mother on that earlier occasion
because she was not attending grade school; Maternal Grandmother explained she just
“didn’t like to go.”
In November 2008, DCS was summoned by police to the mobile home where Mother
and the Child lived with other family members including Maternal Grandmother and
Mother’s brother. On that night, Mother was arrested for vandalism after breaking a window
during an altercation with her brother. DCS case notes indicate that the “inside of the home
was dirty, there was spoiled food sitting out, the bedroom was in [dis]array, a dog was
sleeping in [the Child’s] bed with mud all over it, and roaches were everywhere. . . .” The
case worker further noted, “[t]his is not the first time the police have been out to the home
for domestic disputes . . . [and] no one has any regard for [the Child] seeing all of this.” The
case worker monitored the removal of the roaches and Mother’s brother moved out. On
follow-up visits, the worker found the home clean and free of cockroaches. She closed the
case.
In April 2009, DCS Investigator, Nancy Findley, opened the current case after DCS
was summoned to Mother’s home because of a lack of supervision and environmental neglect
of children who lived there – the visit was prompted by calls to police reporting nude
children playing in a sprinkler outside the home in cool weather. According to Mother, the
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children involved were her sister Rosemary’s and not Mother’s responsibility. Findley
observed many dogs that apparently had ripped open garbage bags and strewn garbage all
around. Maternal Grandmother reported they were strays that “just wandered into the home.”
Further, there was a cord running between Mother’s trailer and Maternal Grandmother’s
trailer next-door by which they shared electricity. At this time, Maternal Grandmother
reported that the family had no rent money and were close to eviction. Broken glass
remained in the house from the November 2008 altercation, spoiled food was sitting out, and
there were “roaches everywhere.” Findley said Mother told her that she had a TennCare card
but was not receiving other assistance such as “Families First,” social security disability or
food stamps. Maternal Grandmother claimed everyone, except the Child, as dependents and
was receiving food stamps for the whole family. Findley noted that Mother relied on
Maternal Grandmother to manager her finances and to dole out any assistance the family
received. DCS provided pest control supplies and Findley took Maternal Grandmother to
obtain SETHRA1 assistance; paid Mother’s past-due rent; and instructed Mother where and
how to apply for disability benefits based on Mother telling her she had been a special
education student and did not understand things very well.
As Findley monitored the case, the yard and home were cleaned, dogs were removed,
and there was food in the home for a few months until July 2009, when DCS was called
back. On this occasion, Findley saw that dogs – and this time more of them – lived inside
and outside the house. The dogs obviously carried fleas; both Mother and the Child were
flea-bitten. The home had no electricity and the roaches were “thick again.” The only food
was a jar of peanut butter, a few canned goods, a pack of hamburger meat, and a box of
cereal. Findley organized church resources to supply Mother with cleaning supplies and pest
control. Mother had started receiving food stamps. Mother was again urged to apply for
social security disability. Findley referred Mother for in-house adult services and assistance,
located churches and a food bank to provide more food and clothing, and DCS provided cash
to pay the electric bill and to restore power to the home.
On her return to Mother’s home the following month, Findley observed that the
situation was worse. The electricity was turned off again, the cockroaches were “bad,” and
the children were eating with their hands out of old cereal bowls with maggots in them. The
dogs remained and Mother and the Child had infected flea bite sores all over their bodies.
It appeared to Findley that there were six children and three or four adults in the home – the
Child, Rosemary’s five children, Mother, Maternal Grandmother, Rosemary, and Mother’s
brother, the latter having returned. However, both Mother and Maternal Grandmother
testified that Rosemary lived elsewhere and that Maternal Grandmother was raising
1
SETHRA is an acronym for Southeast Tennessee Human Resource Agency.
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Rosemary’s children. None of the adults were employed and Mother relied on food stamps,
friends and food banks to live. DCS decided to remove the Child for his health and safety
and so the department could focus their efforts on Mother. A short time later, Mother agreed
to the placement of the Child with Foster Parents; they, in turn, agreed that Mother could also
come to live with them. After two months, Mother moved out of Foster Parents’ home after
they refused to allow her to take the Child with her to a mental health appointment. From
that time forward, Mother lived with various relatives and moved frequently until the trial
date. At one point, she got her own apartment, but lost it a month later when her disability
benefits were cancelled and she had no other source of income.
Mother agreed that the description of the Child’s living conditions and DCS’s
involvement with her family were “kind of” accurate. She clarified, however, that she herself
applied for food stamps and “Families First” assistance and had been receiving benefits of
$225 a month since the Child was an infant. She conceded there “wasn’t that much” food
in the home. Mother said she spent all the money she had on the Child, while Maternal
Grandmother paid her rent and utilities with the disability benefits that Rosemary’s children
received. Mother, Maternal Grandmother and all six children subsisted on about $800 a
month in benefits. Mother attributed the lack of electricity, running water or food in her
home when the Child was removed to the fact that she was in the process of moving in with
Rosemary.
Mother testified that she had moved into her own two-bedroom home in Copperhill
the day before trial began. She did not know the address, but said she paid $400 a month in
rent and her sister provided furniture. She explained that she had been working full-time
since May 2011, cleaning cabins at a rafting camp called Whitewater Express. Mother said
she earned $1,000 a month and continued to receive food stamps. Mother believed her job
was available year-round and, if the Child lived with her, either Rosemary or Father’s
mother, would babysit while she was at work.
Mother said she had not informed her current case worker, David Griffith, that she
was employed because she did not like him. She said he had not helped her. She testified
that she completed an eight-session parenting class that taught her how to discipline the Child
by using time outs. Mother said she didn’t learn anything that she did not already know. She
conceded that she did not provide DCS with her certificate of completion. Mother
acknowledged that her case manager filled out Mother’s application for disability benefits
with information and answers supplied by Mother. However, she denied the accuracy of
most of the information on the form.
DCS case manager Barbara Mayer initially handled both Mother’s case and
Rosemary’s case after their children were removed from Mother’s home at the same time.
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Mayer noted that Rosemary completed her plan’s requirements, which were essentially the
same as Mother’s, and was reunited with her five children within a few months. Mayer
described Mother’s plan as “the most basic of plans.” Ms. Mayer’s initial “high hopes” that
Mother would complete her required tasks were, according to the manager, never realized.
At the time of trial, the Child had lived with Foster Parents for about two years. Foster
Aunt testified that she and her husband agreed to take the Child and, later, Mother, in the
hope that this would give Mother “time to get her life straightened out to have [the Child]
back.” Mother was not asked to pay rent, or do any chores, but to focus only on caring for
the Child. That said, Mother never offered to do any cleaning or cooking. Foster Parents
talked to Mother about feeding the Child regular, healthy food, but noted that the Child “does
what he wants to with [Mother]. . . . He’s the boss.” Mother insisted that the Child was potty
trained when he came to Foster Parents’ home, but Foster Aunt found this not to be the case.
When Mother moved out, she left no contact information; she would return unannounced to
see the Child. Foster Aunt never observed Mother discipline the Child; Mother simply did
what the Child wanted.
A former neighbor described Mother as “a very good mother” whom the Child
obviously loves. She commented that “[e]verywhere she was he was.” Another neighbor
similarly observed that Mother was always “hovering” over the Child and he appeared
healthy and happy. The witness described their relationship as “just wonderful” and added,
“[i]t’s the kind that made you smile when you saw them because you know it was all good.
. . .” She acknowledged that Mother struggled and had borrowed water from her on
occasion.
David Griffith, DCS case manager, took over the Child’s case in January 2010. At
their meeting, Griffith had no reason to believe he could not work with her. Griffith read the
plan’s requirements “word for word” to Mother, and explained the whole plan and the
termination criteria in simple terms. Mother told Griffith that she understood the need to
complete each requirement, but would not further discuss the plan with him. Griffith
continued the same plan and extended the time for Mother to meet her goals, but never saw
progress. Griffith said Mother refused to confirm her address and did not often call him to
check on the Child or her case. As a result, he was unable to offer more services to her. In
contrary testimony, Mother testified she provided both of her case workers with her address
and always had a working cell phone. Neither of the DCS case workers had any contact
with Father about the Child’s case and no one from Father’s family had sought contact with
the Child.
At the time of trial, Father was incarcerated on a fifteen-year sentence imposed in
2008. He explained that he was “at the wrong place at the wrong time and . . . got especially
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aggravated robbery and especially aggravated kidnapping charges.” He was also convicted
for a 2005 arson and conspiracy to commit aggravated robbery. Father had an extensive
criminal record that included offenses before and since the Child’s birth. Father had little
knowledge of the Child’s situation, but he said Mother had allowed him and his family to see
the Child before he went to prison. He sent cards for the Child to the paternal grandmother
and assumed she gave them to Mother.
Mother returned to the stand and presented photographs of her new trailer and the
various rooms and furnishings, including a bed, dresser, and toys for the Child. She
reiterated that, after speaking with her boss, she fully expected to continue at her present job
even during the fall and winter months. Asked why the Child should be returned to her,
Mother testified, “[b]ecause he’s my kid. I miss him.” She was confident she could care for
him and planned to rely on her sister if she needed help.
After the hearing, the court concluded that “it is appropriate . . . to permanently
terminate the parental rights of both [Mother and Father] to the [C]hild , . . . and to free him
for adoption.” As to Mother, the court found that termination was supported by clear and
convincing evidence that Mother failed to comply substantially with the terms of the Child’s
permanency plan, and “persistent conditions exist in Mother’s life that prevent the [C]hild
from returning safely to her care.” See Tenn. Code Ann. §§ 36-1-113(g)(2),(3) (2010). As
to Father, the court found, also by clear and convincing evidence, that termination was
warranted on the following grounds: (1) that Father was sentenced to more than 10 years in
prison when the Child was under the age of eight and (2) that Father abandoned the Child by
engaging in pre-incarceration conduct that exhibits a wanton disregard for the Child’s
welfare. See Tenn. Code Ann. §§ 36-1-113(g)(1)(6) and 36-1-102(1)(A)(iv) (2010). Mother
and Father, represented by separate counsel, appeal. They challenge grounds for termination
as well as the trial court’s best-interest analysis.
II.
Mother presents the following issues for our review:
1. The trial court erred in determining that there was clear and
convincing evidence to support the termination of Mother’s
parental rights based upon a persistence of conditions.
2. DCS failed to provide reasonable efforts to assist Mother in
remedying persistent conditions, thereby negating this ground
for termination.
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3. The trial court erred in determining that there was clear and
convincing evidence to support the termination of Mother’s
parental rights based upon substantial noncompliance with the
permanency plan.
4. The trial court erred in determining that there was clear and
convincing evidence to show that termination of Mother’s
parental rights was in the best interest of the Child.
Father presents additional issues as follows:
1. Did the trial court err in finding that Father’s pre-
incarceration conduct exhibited a wanton disregard for the
Child?
2. Does Tenn. Code Ann. § 36-1-113(g)(6), as currently
interpreted by the courts, run afoul of the State of Tennessee and
United States Constitutions?
III.
We employ the following standard of review in cases involving the termination of
parental rights:
[T]his Court’s duty. . . is 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 preponderance of the evidence is otherwise. Id.;
Tenn. R. App. P. 13(d). In weighing the preponderance of the evidence, great weight is
accorded to the trial court's determinations of witness credibility, which shall not be reversed
absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835,
838 (Tenn. 2002). “This is true because the trial court alone has the opportunity to observe
the appearance and the demeanor of the witnesses.” Tenn-Tex Properties v. Brownell
Electro., 778 S.W.2d 423, 426 (Tenn. 1989). Questions of law are reviewed de novo with
no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn.
2002).
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It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and also the government, they are not absolute, and
they may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77
S.W.3d 137, 141 (Tenn. 2002). A parent’s rights may be terminated only upon “(1) [a]
finding by the court by clear and convincing evidence that the grounds for termination of
parental or guardianship rights have been established; and (2) [t]hat termination of the
parent’s or guardian’s rights is in the best interests of the child.” T.C.A. § 36-1-113(c); In
re F.R.R., III, 193 S.W.3d at 530. Both of these elements must be established by clear and
convincing evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). Evidence satisfying the clear and convincing evidence standard establishes that
the truth of the facts asserted is highly probable, State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. M.S., filed August
13, 2003), and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004).
IV.
In the present case, the order terminating Mother’s and Father’s rights implicates
Tenn. Code Ann. § 36-1-113(g) which provides, in pertinent part, as follows:
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;
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency
plan. . . ;
(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:
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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. . . .
* * *
(6) The parent has been confined in a correctional or detention
facility of any type, by order of the court as a result of a criminal
act, under a sentence of ten (10) or more years, and the child is
under eight (8) years of age at the time the sentence is entered by
the court. . . .
Tenn. Code Ann. § 36-1-102(1)(A)(iv), referenced above, defines “abandonment,” in
relevant part, as follows:
A parent or guardian 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 or guardian has been incarcerated during all
or part of the four (4) months immediately preceding the
institution of such action or proceeding, and either has willfully
failed to visit or has willfully failed to support or has willfully
failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding
such parent’s or guardian’s incarceration, or the parent or
guardian has engaged in conduct prior to incarceration that
exhibits a wanton disregard for the welfare of the child. . . .
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V.
A.
Mother challenges the termination of her rights based on the trial court’s finding of
conditions that persisted after the Child’s removal. Mother contends that she has “turned her
life around” and asserts that the conditions that led to the Child’s removal no longer exist.
Mother also asserts that DCS failed in its obligation to make “reasonable efforts” to assist
her to do the things that were necessary for the Child’s return. We address these related
issues in turn.
The trial court made the following relevant findings:
DCS proved by clear and convincing evidence that persistent
conditions exist in [Mother’s] life that prevent the [C]hild from
returning safety to her care. . . . DCS removed the [C]hild from
[Mother’s] home on August 4, 2009; the [C]hild has been in
foster care for two years. DCS removed the [C]hild from
[Mother’s] home due to his mother’s ability to provide him a
safe environment or to parent him adequately. Those conditions
still exist, although the [C]hild has been in foster care half his
life. Despite her last-minute acquisitions of a job and a home,
[Mother] has provided no evidence that she will keep either the
house or the job long-term. She remains unable to provide the
[C]hild with consistent basic care or competent parenting.
[Mother’s] history of instability and lack of parenting skills have
continued over the [C]hild’s entire life despite DCS’s efforts to
help. The court finds that her lack of judgment provides ample
evidence that she cannot meet the [C]hild’s needs. She testified
that she had no problems or reservations about being with
[Father] who was a convicted felon. She lied on an application
to receive SSI benefits. She fills prescriptions for depression
medication – provided by state funds – and throws the
medication away on a regular basis. She shows no ability to
make decisions that are in her own best interests. The court
finds that she will not make suitable decisions to rear and protect
the [C]hild adequately, now or in the future.
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Lastly, the court found that “continuation of [Mother’s] parental rights to the [C]hild greatly
diminishes his chance to permanently be made part of a safe and stable home.”
The evidence shows that, at the heart of Mother’s problems, which ultimately caused
the Child to be separated from her, is her inability to demonstrate she could provide for the
Child’s basic, everyday needs for any length of time. The trial court’s findings reflect a
complete lack of confidence that Mother’s “last minute and very minimal” actions
represented the long term stability and consistency that the permanency plan was intended
to help her achieve. In our view, the evidence does not preponderate against the trial court’s
assessment. Stated differently, Mother obtained, but failed to show that she could maintain
either housing or employment, and never demonstrated that she could effectively parent the
Child. All the while, the Child remained in foster care for over two years. Given such
evidence, the trial court concluded that the Child deserved a chance at long-term stability in
the safe, loving home that Foster Parents had selflessly provided.
The evidence does not preponderate against the trial court’s finding that the conditions
which led to the Child’s removal essentially persisted at the time of trial, notwithstanding
proof of Mother’s most recent employment and housing. The trial court did not err in
terminating Mother’s rights based on persistent conditions.
B.
The trial court expressly found that DCS established that it made reasonable efforts
to assist Mother in satisfying her obligations under the plan and remedying the conditions
that caused her and the Child to be separated. The court found that DCS worked with Mother
“to set goals and develop tasks” intended to lead to reunification; attempted to help her gain
parenting skills; and assisted her in obtaining social security benefits. The court noted,
however, that, as a result of Mother continually moving and failing to maintain contact with
DCS, her case managers were unable to provide further assistance.
This Court has often acknowledged that “[t]he success of a parent’s remedial efforts
generally depends on the Department’s assistance and support.” In re Giorgianna H., 205
S.W.3d 508, 518 (Tenn. Ct. App. 2006) (citing In re C.M .M ., No.
M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 (Tenn. Ct. App. Mar. 9, 2004); State
Dep’t of Children’s Servs. v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946776,
at *10 (Tenn. Ct. App. M.S., filed Aug. 13, 2003)). DCS certainly had an obligation to
exercise reasonable efforts to assist Mother in working toward reunification. Tenn. Code
Ann. § 37-1-166(a)(2), (g)(2). We have further observed, however, that
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the manner in which the Department renders services must be
reasonable, not herculean. In addition, the Department is not
required to shoulder the burden alone. The parents must also
make reasonable efforts to rehabilitate themselves and to remedy
the conditions that required the removal of the children. The
reasonableness of the Department’s efforts should be decided on
a case-by-case basis in light of the unique facts of the case.
In re Bernard T., 319 S.W.3d 586, 601 (Tenn. Ct. App. 2010)(internal citations omitted;
emphasis added).
In the present case, the proof shows that DCS first tried to work with Mother to help
her provide the Child with a safe, clean living environment so as to prevent his removal.
Several times, DCS provided pest control and cleaning supplies to Mother and provided or
organized other resources to supply the family with food, utility service and rent. In addition,
DCS provided contact information and an itemized list of things Mother would need in order
to apply for disability benefits. Ms. Findley offered to transport Mother and Maternal
Grandmother to submit the application, but Mother never followed through. More than once,
Mother temporarily addressed the living conditions in the home, but then allowed them to
deteriorate again. According to Ms. Findley, “[t]hat was our concern – she would clean up
long enough for us to start to close the case, but we didn’t know how they would survive
after we did . . . because they were refusing to utilize the resources that we had placed in the
home.”
After DCS determined it was necessary to remove the Child, they attempted to work
more closely with Mother to get her “more resources and some independent living skills.”
Both of the Child’s case managers painstakingly reviewed the permanency plan and the
termination criteria with Mother, which she said she understood; DCS also extended the time
for her to complete her responsibilities, all to no avail. An ideal situation seemed to present
itself when Foster Aunt agreed to take Mother, as well as the Child, thus giving Mother time
to learn new skills and find a job or obtain other forms of income. Mother agreed that her
caseworker had worked to make it possible for both Mother and the Child to live with Foster
Parents. Asked what she was supposed to do in their home, however, Mother replied,
“[n]othing.” After a few months, during which time she claimed to learn nothing from Foster
Aunt, Mother not only left the home, but she turned down Foster Parents’ offer to live rent-
free in another home they owned until she “got her feet on the ground.” Instead, Mother
began moving from place to place, living with various relatives for months at a time, and did
not provide her address or maintain regular contact with DCS. According to Ms. Mayer,
Mother’s visits with the Child fell off very quickly and she could not persuade Mother to
work on other aspects of the “most basic” permanency plan; although Mother had no driver’s
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license, she turned down Mayer’s offers to provide transportation to help her look for a job
or accomplish any other task on the plan. Mother reported that she had looked “everywhere”
for a job, but never provided any evidence so Mayer could verify her job search efforts.
When Mayer took Mother to apply for public housing, she discovered that Mother was
ineligible because she had a criminal record. As to sources of income, Mother never
followed through with applying for disability benefits until Mayer sat down with her and
Maternal Grandmother and assisted her in completing the application.
Mayer testified that every time she did see or speak with Mother, she reviewed the
permanency plan requirements, asked what steps Mother had taken, and reiterated what
Mother needed to do. Mayer testified: “it’s part of my job to help the people get their
children back. It’s not part of my job to keep the kids.” She observed that while she made
herself and resources available, she was “only going to do as much as the parent.” As to the
Child, DCS enrolled him in Head Start, obtained basic medical and dental care, and placed
him with Foster Parents in an effort to keep him within his extended family unit.
The evidence does not preponderate against the trial court’s finding that DCS satisfied
its obligation to make “reasonable efforts” to assist Mother toward reunification with the
Child. Despite such efforts, however, Mother made no significant progress until the time of
the termination hearing, when there was some suggestion that she had begun to take steps in
the right direction. Unfortunately, her efforts came too late.
In our view, Mother’s failure to act sooner cannot be attributed to any failure on the
part of DCS. Accordingly, the evidence does not preponderate against the trial court’s
determination that DCS exercised reasonable care and diligence – that is, “reasonable
efforts” – to provide services related to meeting the needs of the child and the family. See
Tenn. Code Ann. § 37-1-166(g)(1) (2010).
VI.
Mother challenges the finding of substantial non-compliance with the permanency
plan as a ground for terminating her parental rights. She contends that she completed most
of the plan’s requirements and DCS failed to present clear and convincing evidence to the
contrary. We disagree.
The initial permanency plan was developed in August 2009 with Mother’s
participation. As the trial court observed, the “plan’s goals were simple, asking only that
[Mother] provide the [C]hild the basic care that the [C]hild needed: – a stable and clean
home, ample food, clothing and other necessities and effective parental care and nurture.”
The plan was updated a year later, but the requirements were the same. Case manager
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Griffith testified he made no changes because he had seen no evidence of progress by
Mother. As accurately summarized by the court, the plan required that Mother
provide the [C]hild a stable and clean home by getting, at least,
a two-bedroom home for herself and her [C]hild only;
maintaining all the home’s utilities; keeping the home clean and
insect-free; and making sure DCS knew where she was living;
get adequate income by applying for and obeying any
requirements of government assistance programs; getting a job;
and learning to live within her means; and
provide the [C]hild appropriate care and nurture by working
with DCS to assess her homemaking skills and increase her skill
level, participating in and completing a parenting class that
included effective discipline techniques, and by demonstrating
the ability to effectively parent her [C]hild. The plan also
required her to pay traffic fines and get back her driver’s license.
The trial court made extensive findings in support of its conclusion that Mother did
not fulfill her obligations. Among the more pertinent findings are the following:
* * *
Housing: [Mother] did not inform her case manager of any of
her addresses. She did not provide any other ways to keep in
touch with her. She did not contact DCS regularly.
[Mother] was still living with [Maternal Grandmother and
Rosemary] on the day that this trial began, however, she
announced on the first day . . . that she had just rented a home of
her own and was moving that day. She was unable to give the
court her new address or a written lease. She testified that the
rental home would cost $400 a month. On the first day of trial,
there was no furniture in the home. By the last day of the trial,
[Mother] provided photographs that she testified depicted the
home with a few pieces of furniture in it. [Mother] said
[Rosemary] gave her the furniture. No one else testified
concerning the home’s condition. DCS was not able to inspect
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the home due to the fact that they were only made aware of the
home during the first day of this trial.
Income: [Mother] testified that she did not know where any of
their money or food stamps went – . . . she relied on [Maternal
Grandmother] to provide for her and the [C]hild.
[Mother] provided the case manager, Barbara Mayer, a list of
places she had applied for jobs from November 2009 until
January 2010.
* * *
The list did not contain most of the information Ms. Mayer
asked [Mother] to provide – telephone numbers and names of
people that [Mother] contacted, so that DCS could verify that
[Mother] actually submitted applications.
After January 2010, [Mother] did not give DCS any other
evidence that she had tried to find a job. The court finds
[Mother’s] testimony concerning her search for a job was not
credible.
* * *
[Mother] got SSI payments based largely on her claimed
depression, which had been diagnosed by her doctor. [Mother]
testified to this Court, however, that she was not depressed at
the time of trial and that she was not depressed when she signed
the SSI application, nor had she ever suffered from depression.
* * *
The court finds that [Mother] was not truthful when she
completed her application nor has she been truthful with her
physicians or otherwise with this court related to the issue of her
depression.
* * *
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[Mother’s] answers on the SSI application will make it difficult
for her to get a job: She testified that she does not like people,
she does not deal well with authority figures, she does not
handle stress well, she gets angry when stressed, she cannot
complete tasks because she cannot follow directions, written and
spoken instructions are difficult for her to follow, and she
cannot do math and cannot keep a checkbook.
[Mother] testified that she now has a job cleaning cabins at a
rafting company. She testified that she got this job in May 2011.
However, she did not tell her case manager that she had a job.
She provided the Court with pay stubs2 showing that she was
earning $1,000 a month. She brought home $425 bi-weekly.
[Mother] testified that she was certain that her job would
continue through the winter months, stating that the rafting
company had programs in cold weather that used the cabins.
Because she did not tell DCS that she had the new job, DCS was
unable to verify how long the job would last. However, the
court takes judicial notice of the fact that the rafting season
comes to a close, for the most part, from September through
May of each year. Therefore, this court does not believe
[Mother’s] job will continue, at least not at the same hours
worked, for the fall and/or winter season.
Effective parenting: DCS arranged for [Mother] to live with
[the Child] at [Foster Parents’] home so that she could learn
parenting skills and so she could bond with her [C]hild. They
required her only to care for the [C]hild and for her to maintain
her room. [Foster Aunt] took care of the rest of the
housekeeping and cooking.
When [Mother] vacated the home, [Foster Aunt] found piles of
soiled diapers wadded up and hidden in the closest of [Mother’s]
room.
[F]or the most part, [Mother] did not help around the home. She
did usually feed the [C]hild, usually . . . potato chips, yogurt and
2
The record contains one pay stub for the two-week period ending on July 23, 2011 in the net amount
of $425.21. The gross “year-to-date” earnings are shown as $1,925.14.
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fruity juices. She allowed him to carry a sippy cup . . . all the
time. Therefore, the [C]hild rarely ate healthy food. [Mother]
testified that she helped with the housecleaning and cooking. .
. . The court heard testimony of [Foster Aunt] that [Mother] did
not assist with cleaning the house, nor did she cook. She
testified that [Mother] never offered to help out in any way. The
court finds that [Mother’s] testimony was not credible on these
issues.
* * *
[Mother] was required to demonstrate her improved parenting
skills after she took the parenting class. She never did so.
* * *
[Mother] testified that . . . she gets angry when stressed. The
court has great concern with her potential anger episodes when
faced with the stresses involved with the full time parenting of
a young small child.
(Bold lettering in original; footnote added.)
As the trial court found, the plan “was designed to help [Mother] learn how to correct
the problems that caused the [C]hild’s removal into foster care.” At trial, however, there was
no evidence that Mother had made lasting, verifiable changes to her situation. As to suitable,
stable housing, the evidence showed that Mother waited literally until the eve of trial to find
a place for her and the Child to live. Before then, Mother moved from place to place and
lived with relatives and failed to furnish DCS with her address or basic contact information.
Mother did not qualify for public housing because of her criminal record and lost the only
home she was able to get on her own because of lack of income after only a few months.
When questioned at trial about the house she had just found, Mother could not provide the
address, but later produced (1) a generic receipt, purportedly for that month’s rent of $400
and (2) photographs. Mother presented no verifiable proof of her search for employment and
nothing to corroborate her testimony that her recently-acquired job was stable. As to her
parenting skills, Mother presented only a certificate showing she had completed a parenting
class. The trial court considered all of the evidence and essentially found that Mother’s
actions were “too little, too late.” The evidence does not preponderate against this clear and
convincing finding of the trial court.
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Mother presented evidence suggesting that, just before trial, long after the Child’s
removal, she had begun to address the plan’s most basic requirements. However, Mother
never kept DCS informed. As a consequence of this failure, DCS was never able to confirm
her new-found housing and recent employment. The trial court discredited much of Mother’s
testimony and remained unconvinced that Mother had made lasting changes. Under similar
factual scenarios, this Court has upheld terminations orders based on the failure to comply
with a permanency plan. In In re J.D.L., No. M2009-00574-COA-R3-PT, 2009 WL
4407786 at *16 (Tenn. Ct. App. M.S., filed Dec. 2, 2009), we concluded:
The court also relied on Mother’s failure to comply with her
plans’ requirements to establish stable income and obtain stable
housing, which the record supports. The determinative question
therefore is whether Mother’s failure to secure stable housing
and income is “substantial” noncompliance. The Tennessee
Supreme Court has defined “substantial” noncompliance as that
“‘[o]f real worth and importance,’”explaining that courts should
determine the real worth and importance of a parent's
noncompliance by considering the degree of noncompliance and
the importance of the disregarded requirement. We focus here
on the great importance of establishing a stable setting in which
to raise and support these children and conclude that Mother’s
failure to make any meaningful attempts to obtain stable income
or housing amounted to substantial noncompliance. Mother’s
belated efforts to find housing and income less than two weeks
before the final termination hearing were “too little, too late.”
(Internal citations omitted.) See also, e.g., In re R.T.S, No. E2002-02227-COA-R3-JV, 2004
WL 73271 at *6 (Tenn. Ct. App. E.S., filed Jan. 16, 2004)(holding that “Mother’s and
Father’s last minute efforts cannot provide the basis for a conclusion that [this] statutory
ground[] ha[s] not been proven”); DCS v. B.L.K., No E2002-01724-COA-R3-JV, 2003 WL
21220830 at *8 (Tenn. Ct. App. E.S., filed May 20, 2003 )(holding that “Mother’s last
minute ability to secure employment two days before the second day of trial began, as well
as the scheduling of a therapy session in the near future is, quite simply, too little too late”).
In the present case, the evidence does not preponderate against the trial court’s
determination that, despite her recent actions, Mother failed to comply substantially with the
requirements of the permanency plan. The trial court did not err in terminating Mother’s
rights on this ground.
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VII.
“The ultimate goal of every proceeding involving the care and custody of a child is
to ascertain and promote the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn.
Ct. App. 2005). Once grounds for termination have been found, the focus of the proceedings
shifts to the best interest of the child. Id. Having concluded that the trial court properly
terminated both Mother’s and Father’s rights, we next consider whether the decision is also
in the best interest of the child.3 We are guided in our review by the relevant statutory factors
set forth in Tenn. Code Ann. § 36-1-113(c).4
3
Although Father does not challenge the trial court’s best-interest determination, we review this issue
as to both Mother and Father.
4
The factors to be considered by us are as follows:
(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 or controlled substances as may render the
parent or guardian consistently unable to care for the child in a safe and
stable manner;
(continued...)
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The trial court set forth its best-interest analysis, as to both parents, as follows:
* * *
The court finds that DCS proved by clear and convincing
evidence that it is in the [C]hild’s best interests for termination
to be granted as to [Mother] because, despite her ability to use
the [C]hild’s two-year stay in foster care to better herself and
despite DCS’s attempts to help her, she has failed to show that
she can make and keep a home or a job. She has not shown that
she can adequately, nor effectively, parent the child. While
[Mother] may have made some very recent changes in her
condition, she waited until just before the trial in this case
began. This was an extremely long time after DCS filed its
petition – to do so. It does not appear that she took the matter to
heart until recently, nor does it appear to the court that the
changes that she made are permanent changes. Her actions in
this matter cause the court to believe she does not recognize a
real need to change. Therefore, the court does not believe that
she will change long term.
DCS proved by clear and convincing evidence that it is in the
[C]hild’s best interests for termination to be granted as to
[Father] because he is in jail and likely to remain there until the
[C]hild is almost an adult. He cannot provide the [C]hild a
home or protect the [C]hild in any way. His violent past shows
that he poses a danger to the [C]hild. Although he knew that the
[C]hild is in foster care, he made no attempt to contact him. The
4
(...continued)
(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.
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[C]hild has never met [Father] – they have absolutely no bond.
DCS also proved . . . that it is in the [C]hild’s best interests for
termination to be granted as to both [Mother and Father]
because changing care givers at this stage of his life will have a
detrimental effect on him. He has made great strides in [aunt
and uncle’s] home, and he calls [aunt and uncle] “mom” and
“dad.” The court finds that this [C]hild has thrived in . . . their
care.
(Internal citations omitted).
At trial, Foster Aunt said they brought the Child into their home with no intention of
adopting him. They testified that they did not need or expect any payment in return. In the
years since then, Foster Parents had bonded with the Child, love him, and wish to adopt him.
Foster Aunt related that the Child was happy, loved playing with other children, loved
school, and loved eating everything except mashed potatoes.
In summary, it is clear to us that the trial court conducted a most thorough analysis and
concluded that all indications pointed to terminating both Mother’s and Father’s rights and
making the Child available for adoption as the best course of action for the Child. Viewing
the situation from the perspective of the Child, as we must, we do not find that the evidence
preponderates against the trial court’s conclusions.
VIII.
Next, we consider the issues presented by Father. Father challenges the termination
of his rights, which termination is based upon the fact that he effectively abandoned the Child
when he “engaged in conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child.” Tenn. Code Ann. 36-1-102(1)(A)(iv). Father asserts that the evidence
in support of this ground was neither clear nor convincing. He concedes he has an extensive
criminal history, but asserts that there was no evidence that he committed any of his offenses
in the Child’s presence or that they had a direct effect on the Child, “other than the fact that
his incarceration meant that [Father] could not be there to visit and support [the Child].”
As we have noted, at the time of trial, Father was in prison pursuant to his guilty pleas
leading to his convictions for committing especially aggravated kidnapping and especially
aggravated robbery in April 2008, conspiracy to commit aggravated robbery in May 2008,
arson in 2006, and violation of probation. The various sentences were ordered served
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concurrently, resulting in an effective 15-year prison sentence.5 Father conceded that his
criminal history included an earlier felony conviction for burglary, numerous misdemeanors,
and repeated probation violations.
With respect to the ground of abandonment by wanton disregard, the statute does not
expressly limit the conduct to any particular four-month period prior to incarceration. See In
re Audrey S., 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005). Neither are the crimes that lead
to the parent’s incarceration the only conduct that the court may consider. This Court has
held that “[e]xamples of wanton disregard might include conduct such as ‘probation
violations, repeated incarceration, criminal behavior, substance abuse, and the failure to
provide adequate support or supervision for a child.’ ” In re D.M., No.
M2009-00340-COA-R3-PT, 2009 WL 2461199 at *4 (Tenn. Ct. App. M.S., filed Aug. 12,
2009)(quoting In re Audrey S., 182 S.W.3d at 867-68).
As to Father, the trial court found that
[b]efore going to jail, [Father] committed a succession of violent
crimes – both before and after the [C]hild’s birth. [Father’s]
history of a series of violent crimes demonstrates his lack of
ability to raise his child in a healthy and moral environment, his
lack of judgment and his lack of concern that committing crimes
might lead to incarceration preventing him from bonding with
or protecting the [C]hild. [Father] is unfit to parent the [C]hild.
Father asserts that the only violent crimes he committed are those for which he is
currently incarcerated. He makes much of the trial court’s reference to a history of violent
crimes. On our review, we agree with Father that his criminal history could have been
presented in a less confused fashion – in chronological order, for instance, and in such a way
that arrests were distinguished from convictions, etc. Presumably, the trial court may have
considered Father’s arrest on two counts of assault in December 2006, in addition to his more
recent offenses, in noting his several “violent” crimes. While the judgments in the assault
case are not before us, the record indicates that those charges were dismissed, but Father’s
probation was revoked as a result of the unreported arrests and he served 90 days in jail. In
any case, Father conceded he had “quite a record” and the record reflects a history of
criminal behavior and a long-standing disregard for the law as he continuously violated the
5
At trial, Father testified that he expected to be released after serving 85% of his sentence. We
observe that the judgment reflects that for the especially aggravated kidnapping, he was sentenced as a
violent offender to serve 100% of his sentence.
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terms of his probation. Notably, it appears that after Father was aware that he had the Child
to consider, the seriousness of his criminal conduct only escalated. Father’s most recent
convictions stemmed from a 2008 robbery and kidnapping in which Father and his partner
admitted, through their guilty pleas, to using a gun and beating the victim. His criminal
conduct aside, the evidence further shows that Father provided no child support and did not
otherwise act with the Child’s best interest in mind.
The evidence does not preponderate against the trial court’s finding that Father’s pre-
incarceration conduct evidenced a wanton disregard for the Child’s welfare. The trial court
did not err in terminating Father’s rights on this ground.
IX.
As to Father, the trial court found the existence of a second ground for termination
pursuant to Tenn. Code Ann. § 36-1-113(g)(6). Again, that section provides for termination
where the “parent has been confined in a correctional or detention facility of any type, by
order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and
the child is under eight (8) years of age at the time the sentence is entered. . . .” Id. As
discussed in the previous section, Father received an effective fifteen-year sentence for his
multiple felony convictions, and judgment was imposed before the Child turned two.
Initially, Father does not contest the evidence terminating his rights pursuant to
Section 36-1-113(g)(6), nor could he successfully do so. The sentencing judgments for his
2008 convictions indisputably establish the existence of this ground. Father instead argues
that the statute, as applied by our courts, is unconstitutional because it employs a bright-line
rule with no regard for whether an incarcerated parent actually serves the sentence imposed.
Father suggests that there would be little harm and would be a potential benefit to instituting
an eighteen-month “waiting period” after entry of judgment before termination could be
pursued.
First, as DCS correctly notes, Father presents this issue for the first time on appeal and
it is thereby waived. “It is axiomatic that parties will not be permitted to raise issues on
appeal that they did not first raise in the trial court.” Black v. Blount, 938 S.W.2d 394, 403
(Tenn. 1996). It is also an established principle of law that constitutional issues need not be
decided where a case can be resolved on non-constitutional grounds. Watts v. Memphis
Transit Management Co., 224 Tenn. 721, 727, 462 S.W.2d 495, 498 (1971). In the present
case, we have already determined that Father’s rights were properly terminated on another,
independent ground. Because the existence of a single ground is all that is required to
support a termination order, we will not dwell on this issue. Suffice it to say, however, that
this Court has previously upheld the constitutionality of Section 36-1-113(g)(6). In Worley
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v. State, No. 03A01-9708-JV-00366, 1998 WL 52098 at *1 (Tenn. Ct. App. E.S., filed Feb.
10, 1998), we observed:
The statute under attack bears a real and substantial relation to
furthering the best interests of children, and such statutes
permissibly afford greater protection to the minor’s interest than
to the rights of a parent. The legislature has expressed as a
compelling state interest that minor children not remain
permanently in foster care. T.C.A. § 36-1-113.
The appellant, by his own acts, has severely diminished, if not
nullified, his ability to discharge his role as a proper parent.
When the parenting role is not or cannot be fulfilled, under the
doctrine of parens patriae the State has a “special duty” to fulfill
that role. The proper parental role in the life of a child under
eight years is crucial to the child’s welfare, and there is a
compelling need for the State to protect the best interests of the
child in this regard. The statute under consideration properly
addresses and furthers that interest. For a parent who is unable
or unwilling to care for the child’s best interest, a statute that
enables the State to terminate parental rights on these grounds
does not violate the process clause of the Constitutions.
(Internal citations omitted; italics in original).
For the foregoing reasons, and each of them, we conclude that the trial court did not
err in terminating Father’s rights pursuant to Section 36-1-113(g)(6). Father is entitled to no
relief on this issue.
X.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Amanda M. and Joshua D. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the court’s judgment and the collection of costs assessed
below.
_________________________________
CHARLES D. SUSANO, JR., JUDGE
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