In Re: Zachary G.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 1, 2012 Session
IN RE ZACHARY G., ET AL.
Appeal from the Juvenile Court for Campbell County
No. JUV2010-508 Hon. Joseph M. Ayers, Judge
No. E2011-01246-COA-R3-PT - Filed March 2, 2012
This is a termination of parental rights case in which the Tennessee Department of Children’s
Services (“DCS”) removed Zachary G. and Kaleb M. (collectively the “Children”) from
Heather M. (“Mother”) and Elmus G. (“Father”).1 The Children were adjudicated dependent
and neglected and placed with Rhonda S. (“Grandmother”). Years later, the Children were
placed in foster care and two new permanency plans were entered. DCS then petitioned to
terminate Mother’s parental rights. Following a hearing, the court terminated Mother’s
parental rights, finding that Mother had abandoned the Children, that Mother had failed to
substantially comply with the permanency plans, and that termination of Mother’s parental
rights was in the best interest of the Children. Mother appeals. We affirm the decision of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.
Lauren R. Biloski and Kevin C. Angel, Oak Ridge, Tennessee, for the appellant, Heather M.
Robert E. Cooper, Jr., Attorney General and Reporter, and Shanta J. Murray, Assistant
Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.
1
Father was referred to as Travis G. in various parts of the record. However, the petition for termination
listed Father’s name as Elmus Travis G.
Darren Fred Mitchell, LaFollette, Tennessee, guardian ad litem for the minors, Zachary G.
and Kaleb M.
OPINION
I. BACKGROUND
Alexis G., Zachary G., and Kaleb M. were born to Mother and Father (collectively the
“Parents”) on July 31, 2003, March 26, 2006, and June 19, 2007, respectively. Alexis G. was
not included in the petition to terminate parental rights that is at issue in this case. Father
voluntarily surrendered his rights to Zachary G. and Kaleb M. Therefore, the factual
background will mostly contain information pertaining to Mother.
Prior to Kaleb M.’s birth, DCS petitioned the court for removal and temporary custody
of Alexis G. and Zachary G., alleging that the Parents had been arrested. DCS asserted that
Alexis G. and Zachary G. had been found in a dwelling that contained a methamphetamine
lab. Alexis G. and Zachary G. were subsequently found to be dependent and neglected and
were placed with Grandmother. A permanency plan was implemented for each child that
included the dual goals of reunification with the Parents or placement with relatives. The
plans included a section advising the Parents on the criteria and procedures for termination
of parental rights. The Parents signed the plans and the listing of the criteria and procedures
for termination. Pursuant to the plans, Mother was instructed to “provide a safe [and] stable
drug-free home - that [wa]s free of any domestic violence” and “to live a life that [wa]s free
of criminal court involvement.” Mother was advised, in pertinent part, that she needed to
1. Follow all recommendations of the alcohol and drug assessment.
2. Submit to random drug screens.
3. Attend a mental health assessment to work on depression from the past four
years, past anger issues, and to deal with past domestic violence and follow
recommendations from the assessment.
4. Provide proof of stable housing, live at that residence for at least four
months, and provide proof of legal income to DCS case manager.
5. Resolve all legal issues.
On May 31, 2007, the court reviewed and approved the permanency plans. The court
found that DCS was making reasonable efforts to reunify Alexis G. and Zachary G. with the
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Parents but that the Parents were not in compliance with the plans. Two months later, DCS
petitioned the court to include Kaleb M., who had just been born, in the petition for removal
and custody. DCS alleged that the conditions that led to removal still existed and that Kaleb
M. should also be removed. The trial court agreed and designated Grandmother as the legal
and physical custodian of all three children.
In April 2009, Grandmother kept Alexis G. but gave the Children to her sister,
Suzanne S. Two months later, Suzanne S. was granted custody of the Children. Three
months later, Suzanne S. returned the Children to Grandmother. Citing problems with her
health, Grandmother gave the Children to the paternal grandfather (“Grandfather”). DCS
petitioned the court for an immediate protective custody order providing placement of the
Children with Grandfather.
In October 2009, the trial court designated Grandfather as the custodian of the
Children, finding that there was “probable cause that the [C]hildren [were] dependent and
neglected,” that it was “contrary to the welfare of the [C]hildren to remain in the custody of
their parents,” and that placement with Grandfather was in the Children’s best interest. In
so finding, the court noted that Mother had been released from jail and placed on probation
but was at a rehabilitation facility receiving treatment for substance abuse issues.
In November 2009, DCS petitioned for review of the case regarding the
appropriateness of the placement with Grandfather, who had been arrested for public
intoxication and had pled guilty to the charge. Two months later, the court affirmed the
continued placement of the Children with Grandfather, citing the fact that DCS approved the
placement because Grandfather was compliant with DCS involvement and was utilizing the
services provided by DCS.
In February 2010, DCS petitioned for removal of the Children, alleging that
Grandfather reported that he was unable to continue caring for them. DCS noted that Father
was in prison serving a sentence for first degree murder and that Mother was residing in a
halfway house. DCS requested an immediate protective order placing custody of the
Children with DCS. The trial court agreed and entered a protective custody order. In the
preliminary hearing order filed approximately one month later, the court found that it was
contrary to the Children’s welfare “to remain in the care, custody, or control of their [P]arents
and legal custodian,” that placement of the Children with DCS was in the best interest of the
Children, “that reasonable efforts were made to prevent removal of the [C]hildren, [and] that
reasonable efforts have been made since removal to reunify the family.”
Permanency plans for the Children were entered on March 16, 2010, providing dual
goals of reunification or placement of the Children with relatives. Mother was instructed that
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the Children needed a “safe [and] stable living environment” and a “safe [and] stable
permanent home.” Mother was advised that in order to regain custody, she needed to
1. Provide a safe and stable drug-free home.
2. Provide verification of rent receipts and legal utilities for three months.
3. Maintain a stable income and provide verification of that income.
4. Maintain reliable transportation.
5. Refrain from illegal activity.
6. Resolve restitution and provide verification that restitution had been
resolved.
7. Remain drug free.
8. Prohibit persons under the influence of illegal drugs or alcohol from coming
near the Children.
9. Verify completion of an eight-week parenting program.
DCS noted that Mother had completed a four-month intensive outpatient program, had
participated in weekly alcohol and drug group counseling, and had attending parenting
classes. Mother signed the permanency plans. Mother also signed the criteria and procedure
for termination of parental rights that were attached to the permanency plans.
In March 2010, April 2010, and May 2010, Jessica Brown, a Family Service Worker
with DCS, submitted affidavits of reasonable efforts, relating that she had been providing
services to Mother and the Children. She alleged that placement of the Children with Mother
would not occur until Mother completed parenting classes, obtained stable housing,
maintained a stable income and transportation, and followed the rules of aftercare relating
to Mother’s alcohol and drug treatment.
On May 13, 2010, a hearing was held at which Mother was present. Following the
hearing, the court adjudicated the Children as dependent and neglected and awarded custody
of the Children to DCS in an order entered on June 24, 2010. Shortly thereafter, the court
approved the March permanency plans and found that the Parents were not in compliance
with the plans. The court listed the services that had been provided by DCS and found that
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DCS was in compliance with plans. However, the court stated that “DCS [was] not making
reasonable efforts toward finalizing the permanency goal(s) by providing the services
referred to” in the list.2
Mother tested positive for opiates on May 24, 2010. Mother’s probation was revoked,
and she was ordered to serve her sentences for one Class D felony, three Class E felonies,
and one Class A misdemeanor. In October 2010, DCS filed a petition to terminate the
parental rights of Mother. DCS contended that Mother had been ordered to serve an
effective five-year sentence3 because she had violated her probation. DCS argued that
termination of Mother’s parental rights was appropriate based upon the ground of
abandonment and substantial noncompliance with the permanency plans.
Relative to abandonment, DCS opined that Mother had been in jail for “part or all of
the four months just before” the petition was filed, that she had been engaged in conduct that
exhibited a “wanton disregard for the [C]hildren’s welfare by violating her probation by
testing positive for opiates . . . and [by] only making one $100.00 payment toward[] her
restitution in 2009[] and one $10.00 payment in 2010.” DCS asserted that Mother’s
“criminal conduct and continued drug use led to her further incarceration, guaranteeing
further estrangement from [the Children].”
Relative to substantial noncompliance with the permanency plans, DCS related that
Mother had been given until September 16, 2010 to satisfy the requirements in the
permanency plans. DCS stated that Mother signed the plans and that the plans were ratified
by the court. DCS argued that Mother failed to remain drug free, failed to refrain from
illegal activity, and failed to maintain a stable and safe drug-free home. DCS contended that
Mother’s incarceration meant that she would be “unable to provide a home for the
[C]hildren” and that she would be unable to “maintain housing, transportation, or
employment.”
DCS asserted that it had made reasonable efforts to assist Mother in reuniting with the
Children but that Mother failed to utilize the services offered by DCS. DCS opined that it
was in the Children’s best interest to terminate Mother’s parental rights because she had not
made changes in her conduct or circumstances. DCS contended that a lasting change in
Mother’s lifestyle or conduct did not appear possible and that Mother’s inability to refrain
2
We believe that this notation was likely a clerical error. This issue will be discussed later in the opinion.
3
Mother alleged that she was ordered to serve a four-year sentence. The record is unclear as to Mother’s
actual sentence.
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from drugs rendered her “consistently unable to care for the [C]hildren in a safe and stable
manner.”
A hearing on the termination petition was held on March 10, 2011. Mother testified
that she had not seen the Children since her visit with them at DCS in May 2010. She
admitted that the Children had not been in her custody since 2006 but asserted that she had
provided for them until she was incarcerated in 2010. She had been on probation since 2007
and had been incarcerated for short periods while on probation. Prior to her 2010 relapse,
she was in a rehabilitation facility for four months and a halfway house for approximately
five months. She recalled that DCS met with her in February 2010 and encouraged her to
remain in the halfway house and complete the program. She remembered that DCS followed
up with the halfway house on her treatment progress and facilitated visitation with the
Children once a week when she came to the offices to take a drug test. She moved out of the
halfway house in April 2010 and tested positive for opiates approximately one month later.
She said that she had remained drug free for approximately one year before her relapse. She
admitted that she had failed some drug tests prior to her year of sobriety. She realized that
failing a drug test could result in her incarceration. She admitted that she had signed
permanency plans that required her to refrain from using drugs but asserted that she did not
realize that failing a drug test could result in the termination of her parental rights.
Mother admitted that once she was incarcerated, she could not provide a stable home
for the Children. She said that she could possibly provide some child support from pay she
received for jobs she held while incarcerated. She had not paid any child support at the time
of the hearing but stated that she did not know “how to do any of that.” She asserted that
since her incarceration, Ms. Brown had not put forth any effort to help her fulfill the
requirements contained in the parenting plans and had not even brought the Children for
visitation. Approximately two weeks before the hearing, she sent Ms. Brown a letter
requesting an address for the Children. She had not called Ms. Brown since her incarceration
because she did not know whether she could call DCS from the prison telephones without
requesting approval.
Mother said that she had served nine months of her four-year sentence and that during
that time, she had completed a parenting class, a substance abuse program, and had started
an intensive drug rehabilitation program. She opined that she would complete the program
before she was eligible for parole in October 2011. She stated that once paroled, she would
move into a halfway house that provided an 18-month program that would help her find
employment and would also provide counseling for her and the Children. She asserted that
while she could not live with the Children during that time, she would have the ability to
contact them and to continue to fulfill the requirements contained in the permanency plans.
She related that once she left the halfway house, she would find a home in which she could
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care for the Children. She said that she did not have to stay at the halfway house for 18
months but that she could stay as long as 18 months if necessary. She insisted that she would
not relapse again because she had “a taste of what life’s supposed to be” and because she did
not want to return to prison.
Ms. Brown testified that she received Mother’s case when the Children were removed
from Grandfather’s custody in February 2010. She filed the petition to terminate Mother’s
parental rights five months after Mother tested positive for opiates and was incarcerated for
violating her probation. She believed that Mother had exhibited a wanton disregard for the
welfare of the Children by failing a drug screen while “knowing that the consequences would
be a violation of her probation, which would result in incarceration.” She also believed that
Mother had failed to substantially comply with the requirements contained in the permanency
plans, which were developed in March 2010. She recalled that Mother was present when the
permanency plans were developed and agreed to the requirements contained in the plans.
She admitted that Mother attended parenting classes but asserted that Mother failed to
complete several of the requirements, two of the most important being to remain drug free
and to maintain stable housing. She related that Mother left the halfway house and moved
into a transitional living program, where she was supposed to work and save funds to access
housing. Instead, Mother was incarcerated one month later.
Relative to her efforts in assisting Mother, Ms. Brown testified that she developed the
permanency plans with Mother and that she reviewed what services Mother would need in
order to fulfill the requirements. She ensured that Mother had access to those services
through the halfway house and then ensured that the transitional living program provided
services to Mother related to her substance abuse problem. She scheduled Mother’s
visitation with the Children and even provided transportation on one occasion in order to
facilitate Mother’s visitation with the Children. She asserted that all of the requirements
contained in the plan were related to remedying Mother’s substance abuse problem and
avoiding incarceration.
Ms. Brown stated that she visited Mother at the Campbell County Jail, where they
discussed the setbacks they faced because of the probation violation. She recalled that
Mother did not ask about contacting the Children and that she did not advise Mother on how
to submit child support or how to contact the Children. She also did not facilitate Mother’s
visitation with the Children once Mother was incarcerated because she “didn’t feel it was in
the best interest of the [C]hildren” to visit Mother in prison. She explained that facilitating
visitation would have required extensive travel for the Children because Mother was housed
in Nashville, approximately four hours away from the Children. She acknowledged that the
Children would likely have a stronger bond with Mother if she had facilitated visitation. She
admitted that she did not adjust the permanency plan because of Mother’s incarceration. She
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opined that Mother had access to services while incarcerated that would help her fulfill the
requirements and that she told Mother to utilize those services. She acknowledged that
Mother had utilized those services while incarcerated.
Ms. Brown asserted that at the time she filed the petition to terminate Mother’s
parental rights, Mother did not have a close relationship with the Children because the
Children had been residing in a foster home for approximately seven months. She said that
the Children had “developed a bond with [the] foster parent[s]” and were receiving the care
that they needed. She testified that after she filed the petition to terminate Mother’s parental
rights of the Children, Alexis G. was taken into DCS custody. She opined that DCS would
attempt to facilitate visitation between Alexis G. and the Children. She admitted that Alexis
G. had only visited with the Children on one occasion in the past 13 months. She alleged that
she had been unable to facilitate visitation because of Grandmother’s resistance.
Following the hearing, the court held that DCS had met its “burden of proving by
clear and convincing evidence that [Mother] had engaged in conduct prior to incarceration
that exhibited a wanton disregard for the welfare of the [C]hildren and, as a result, that the
[C]hildren [had been abandoned] pursuant to [Tennessee Code Annotated section] 36-1-
102(1)(A)(iv).” In so holding, the court noted that Mother “had been incarcerated on at least
one prior occasion in 2006, that she had a long-standing substance abuse problem, that she
had engaged in criminal behavior, and that she had violated the terms of her probation[.]”
The court also held that Mother had failed to substantially comply with the requirements
contained in the permanency plans. The court found that termination of Mother’s parental
rights was in the best interest of the Children. This timely appeal followed.
II. ISSUES
We consolidate and restate the issues raised on appeal by Mother as follows:
A. Whether there was clear and convincing evidence to establish that Mother
abandoned the Children.
B. Whether there was clear and convincing evidence to establish that Mother
failed to substantially comply with the requirements of the permanency plans.
C. Whether there was clear and convincing evidence to establish that DCS
used reasonable efforts to assist Mother in fulfilling the requirements of the
permanency plans.
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D. Whether there was clear and convincing evidence to establish that
termination of Mother’s parental rights was in the best interest of the Children.
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).
While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. 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 interest[]
of the child.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The existence of at least one statutory basis for termination of parental rights will support the
trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct.
App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.
2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
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M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This
evidence also 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); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:
A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
then make its own determination regarding whether the facts, either as found
by the trial court or as supported by a preponderance of the evidence, provide
clear and convincing evidence that supports all the elements of the termination
claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
Appellate courts conduct a de novo review of the trial court’s decisions
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re
Adoption of A.M.H., 215 S.W.3d at 809.
In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).
IV. DISCUSSION
A.
Mother asserts that DCS failed to prove that she exhibited a wanton disregard for the
welfare of the Children. She notes that she had only one set of criminal charges arising from
a single act in 2006 that occurred prior to Kaleb M.’s birth and that she had only failed one
drug screen in the year prior to her incarceration. She argues that the evidence presented
“hardly represent[ed] a pattern of willful conduct” toward the Children when she accepted
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the consequences of her actions and “was doing her best to remedy the situation” by seeking
treatment. DCS responds that Mother’s “conduct prior to incarceration clearly evidenced a
wanton disregard for [the Children’s] welfare” and that termination of Mother’s parental
rights was appropriate based upon that ground.
Relative to Mother’s alleged abandonment of the Children, the Tennessee Code
provides, in pertinent part,
(1)(A) For purposes of terminating the parental or guardian rights of parent(s)
or guardian(s) of a child to that child in order to make that child available for
adoption, “abandonment” means that:
***
(iv) 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 . . . the
parent or guardian has 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). Under this ground of abandonment, the parent’s
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
substantial risk of harm to the welfare of the child.” In re Audrey S., 182 S.W.3d at 866. The
court may consider any relevant conduct that occurred prior to incarceration and is not
limited to reviewing the four months immediately preceding the incarceration. Id. at 870-71.
This court has “repeatedly held that probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for a
child can, alone or in combination, constitute conduct that exhibits a wanton disregard for
the welfare of a child.” Id. at 867-68 (citations omitted).
Mother argues that her case is analogous with this court’s decision in In re Chase
A.C., No. E2009-01952-COA-R3-PT, 2010 WL 3257711 (Tenn. Ct. App. Aug. 18, 2010).
In that case, the trial court terminated father’s parental rights, holding that father had
abandoned the child by failing to provide a suitable home, that termination was warranted
based upon father’s substantial noncompliance with the permanency plan, and that the
conditions which led to removal persisted. Id. at *14-16. This court reversed, holding that
DCS had failed to make reasonable efforts to reunify the child with father. Id. at *24.
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In contrast, the abandonment ground at issue in Mother’s case related to her wanton
disregard for the Children prior to her incarceration. Here, Mother was admitted to probation
approximately three years prior to the filing of the petition to terminate her parental rights
based upon felony and misdemeanor convictions. Mother had not provided the sole support
for Zachary G. since he was approximately seven months old. Additionally, Kaleb M. had
never resided solely in Mother’s care. Mother contended that she provided the primary care
for the Children even though she was on probation and the Children were in the custody of
relatives. However, Mother admitted that while on probation, she had failed drug tests and
was incarcerated periodically “for a month here or there.” Indeed, when asked whether she
was in good standing with her probation from 2007 until 2010, Mother stated that she “didn’t
pass that many” drug tests except for the one year period prior to her incarceration. During
the majority of Mother’s one year of sobriety, she was housed in rehabilitation facilities,
while relatives or foster parents cared for the Children. Once she graduated to the
transitional living program, she ingested an illegal substance, knowing that her actions could
result in the revocation of her probation. Mother also knew that her actions violated the
permanency plans because she had agreed to remain drug free and refrain from illegal
activity.
While Mother accepted responsibility for her actions once she was incarcerated, her
behavior prior to her incarceration evidenced a wanton disregard for the welfare of the
Children. With all of these considerations in mind, we hold that Mother’s probation
violation, admitted repeated incarcerations, criminal behavior, substance abuse, and her
continued failure to provide adequate support for the Children supported termination of
Mother’s parental rights based upon the ground of abandonment. Accordingly, we conclude
that the trial court’s finding that Mother abandoned the Children is supported by clear and
convincing evidence. Thus, a statutory ground existed for termination of Mother’s parental
rights.
B.
Mother contends that the trial court erred in finding a ground of termination based
upon her substantial noncompliance with the permanency plans. Mother alleges that she
substantially complied with the requirements. DCS responds that the requirements contained
in the permanency plans were reasonable and that while Mother completed some of the
requirements, she “was in substantial noncompliance with the permanency plans’ central
obligations designed to achieve reunification.”
Tennessee law requires the development of a plan of care for each foster child and
further requires that the plan include parental responsibilities that are reasonably related to
the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of parental
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rights exists when a petitioner proves by clear and convincing evidence that “[t]here has been
substantial noncompliance by the parent or guardian with the statement of responsibilities
in a permanency plan . . . .” Tenn. Code Ann. § 36-1-113(g)(2).
To establish noncompliance, the trial court must initially find “that the requirements
of the permanency plans are reasonable and related to remedying the conditions that caused
the child to be removed from the parent’s custody in the first place.” In re M.J.B., 140
S.W.3d at 656; see In re Valentine, 79 S.W.3d at 547. When the trial court does not make
such findings, the appellate court should review the issue de novo. In re Valentine, 79
S.W.3d at 547. Second, the court must find that the parent’s noncompliance is substantial,
In re M.J.B., 140 S.W.3d at 656, meaning that the parent must be in “noncompliance with
requirements in a permanency plan that are reasonable and related to remedying the
conditions that warranted removing the child from the parent’s custody.” In re Z.J.S., No.
M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003). To
assess a parent’s substantial noncompliance with a permanency plan, the court must weigh
“both the degree of noncompliance and the weight assigned to that particular requirement.”
In re Z.J.S., 2003 WL 21266854, at *12. Conversely, “[t]erms which are not reasonable and
related are irrelevant, and substantial noncompliance with such terms is irrelevant.” In re
Valentine, 79 S.W.3d at 548-49.
Here, Mother was tasked with providing a safe and stable drug-free home, verifying
that she had resided in a stable home for three months by submitting receipts relating to rent
and utilities, maintaining a stable income and reliable transportation, refraining from illegal
activity, resolving restitution from her 2007 convictions, remaining drug free, prohibiting
persons under the influence of illegal drugs or alcohol from coming near the Children, and
verifying completion of an eight-week parenting program. We believe that these
requirements were reasonable and related to remedying the conditions that led to the
Children’s removal from the home. However, Mother simply failed to substantially comply
with these requirements.
We acknowledge that prior to the relapse in 2010, Mother had made substantial
progress and was a short time away from reuniting with the Children and that once
incarcerated, Mother completed several additional programs relating to her addiction. While
we commend Mother for completing various programs relating to her addiction, she simply
failed to comply with the most important aspects of the permanency plans, namely to remain
drug free and put herself in a position where she could adequately care for the Children.
Mother knew that she was tasked with submitting to weekly drug tests to ensure her
compliance with the permanency plans and that if she failed a drug test, her probation could
be revoked, meaning that she would be incarcerated. Mother simply chose to ignore the
potential consequences of her actions and put her desires above the needs of the Children
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when she ingested an illegal substance, resulting in the revocation of her probation and
incarceration. Accordingly, we conclude that while Mother attempted to comply with some
of the requirements enumerated in the permanency plans, the trial court’s finding that Mother
was in substantial noncompliance with the permanency plans is supported by clear and
convincing evidence. Thus, a second statutory ground existed for termination of Mother’s
parental rights.
C.
Mother alleges that her alleged noncompliance with the permanency plans was a result
of DCS’s failure to provide services and assist Mother in her efforts to reunite with the
Children. DCS responds that Ms. Brown ensured that Mother had access to the necessary
programs and followed up with those programs to ensure that Mother received the services
related to her substance abuse problems. DCS notes that Ms. Brown also met with Mother
and discussed the requirements with her.
Once a child has been removed from a parent’s home, DCS is tasked with making it
possible for the child to return home before instituting termination proceedings. Tenn. Code
Ann. § 37-1-166(a)(2). At the termination proceeding, DCS must prove by clear and
convincing evidence that reasonable efforts were made to reunite the child with the parent.
Tenn. Code Ann. § 37-1-166(b). For purposes of DCS involvement, the term reasonable
efforts refers to “the exercise of reasonable care and diligence by [DCS] to provide services
related to meeting the needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1).
“The reasonableness of [DCS’s] efforts depends upon the circumstances of the particular
case.” In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006).
“While [DCS’s] reunification efforts need not be “herculean,” DCS must do more
than simply provide the parents with a list of services and send them on their way.” Id. DCS
“employees must use their superior insight and training to assist the parents in addressing and
completing the tasks identified in the permanency plan.” Id. These “employees have an
affirmative duty to utilize their education and training to assist parents in a reasonable way
to address the conditions that led to the child’s removal and to complete the tasks stated in
the plan.” In re R.L.F., 278 S.W.3d 305, 316 (Tenn. Ct. App. 2008). In keeping with this
ideal, DCS must provide an affidavit, identifying its reasonable efforts, for the court’s
consideration. Tenn. Code Ann. § 37-1-166(c); see In re R.L.F., 278 S.W.3d at 317. In
determining whether the efforts used by DCS were reasonable, the court should consider the
affidavit and the following factors:
(1) the reasons for separating the parent from his or her children,
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(2) the parent’s physical and mental abilities,
(3) the resources available to the parent,
(4) the parent’s efforts to remedy the conditions that required the removal of
the children,
(5) the resources available to [DCS],
(6) the duration and extent of the parent’s remedial efforts,
(7) the closeness of the fit between the conditions that led to the initial removal
of the children, the requirements of the permanency plan, and [DCS]’s efforts.
In re Giorgianna H., 205 S.W.3d at 519. However, “‘[r]eunification of a family is a two-way
street, and the law does not require [DCS] to carry the entire burden of this goal.” State
Dept. of Children’s Services v. S.M.D., 200 S.W.3d 184, 198 (Tenn. Ct. App. 2006) (quoting
In re R.C.V., No. W2001-02102-COA-R3-JV, 2002 WL 31730899, at *11 (Tenn. Ct. App.
Nov. 18, 2002)). “Thus, parents desiring the return of their children must also make
reasonable and appropriate efforts to rehabilitate themselves and to remedy the conditions
that required [DCS] to remove their children from their custody.” In re Giorgianna H., 205
S.W.3d at 519.
Mother asserts that the court found at a previous hearing that DCS failed to make
reasonable efforts to assist Mother. She believes that this finding was evidence that
termination based upon Mother’s substantial noncompliance with the permanency plans was
erroneous. Having reviewed the document at issue, we believe the notation regarding the
efforts expended by DCS was likely a clerical error. The notation occurred after the court
had listed all of the services that DCS had provided and prior to the court’s finding that DCS
was in substantial compliance with the permanency plans. We therefore reject Mother’s
assertion that the court had found, at one point, that DCS failed to make reasonable efforts
in assisting Mother. Moreover, the issue on appeal is not whether DCS had struggled at one
point in its assistance of Mother but is whether DCS made reasonable efforts in reuniting the
Children with Mother before instituting termination proceedings. Unfortunately, the trial
court failed to make any finding regarding the efforts made by DCS at the termination
proceeding or in the order terminating Mother’s parental rights. Accordingly, we will review
the issue de novo. See In re Valentine, 79 S.W.3d at 547.
The permanency plans at issue in this case were not particularly lengthy or hard to
follow. Ms. Brown advised Mother on the steps she needed to take to reunite with the
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Children. Mother had been provided with resources to help her remain drug free and to
provide for the Children. Additionally, Mother had spent approximately nine months in
programs geared toward assisting her with her addiction and reuniting her with the Children.
Ms. Brown coordinated with these programs to ensure that Mother had access to the
resources she needed. We believe that Ms. Brown did all that she could do to assist Mother
and explain the steps of the permanency plans but that Mother simply failed to comply with
the requirements that would have allowed her to reunite with the Children, namely to remain
drug free and provide a home for the Children. Once Mother was incarcerated, Ms. Brown
could not provide the assistance that Mother needed to provide a stable home for the
Children. Indeed, Mother was tasked with serving a lengthy sentence and would likely need
to endure months of rehabilitation following her release. Accordingly, we conclude that the
record contains clear and convincing evidence that DCS made reasonable efforts to assist
Mother in her attempts to reunite with the Children.
D.
Having concluded that there was clear and convincing evidence supporting each of
the statutory grounds to terminate Mother’s parental rights and that DCS made reasonable
efforts to assist Mother in reuniting with the Children, we must consider whether termination
of Mother’s parental rights was in the best interest of the Children. In making this
determination, we are guided by the non-exhaustive list of factors provided in Tennessee
Code Annotated section 36-1-113:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child . . . the court shall consider, but is not limited to,
the following:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to 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;
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(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;
(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 [section] 36-5-101.
Tenn. Code Ann. § 36-1-113(i). “This list 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 parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when
the best interest[] of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interest[] of the child, which interests are
hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering
a child’s best interest, the court must take the child’s perspective, rather than the parent’s).
In this case, a number of the best interest factors weigh against Mother. Despite her
participation in the creation of several permanency plans, Mother refused to make the
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changes necessary to adequately care for the Children. Tenn. Code Ann. § 36-1-113(i)(1),
(2). The Children presently reside in a safe and stable foster home and have bonded with the
foster parents. Removing the Children from the foster parents and returning them to Mother
when she would be finally able to care for them would likely traumatize the Children. Tenn.
Code Ann. § 36-1-113(i)(5). Questions remain as to whether the physical environment of
Mother’s potential home would even be healthy and safe because Mother’s prior relapse
occurred after she spent approximately nine months in rehabilitation. Tenn. Code Ann. § 36-
1-113(i)(7).
Relative to Mother’s relationship with the Children, Mother has not adequately cared
for the Children since 2006. Zachary G. was approximately seven months old when he was
removed, while Kaleb M. has never resided solely in Mother’s care. Instead, the Children
have been passed from relative to relative until they were eventually placed in foster care,
while Mother was given every opportunity to better herself and provide a home for the
Children. Mother participated in visitation with the Children while in rehabilitation
programs; however, Mother had not seen or contacted the Children since May 2010. Tenn.
Code Ann. § 36-1-113(i)(3), (4). We acknowledge that Mother’s lack of visitation with the
Children since her incarceration was the result of Ms. Brown’s refusal to transport the
Children to the prison. We must also acknowledge that until two weeks before the hearing,
Mother had not contacted Ms. Brown to request visitation or to secure an avenue through
which to contact the Children. Additionally, Mother has not consistently paid child support.
Tenn. Code Ann. § 36-1-113(i)(9).
Mother argues that terminating her parental rights to the Children would result in the
permanent separation of the Children from their sibling, Alexis G., who had just been placed
in foster care. Mother states that the siblings would never be reunited if she were to regain
custody of Alexis G. but lose her parental rights to the Children. We do not wish to discount
the important bond between the Children and Alexis G. However, we cannot speculate as
to whether Alexis G. will ever be returned to Mother, whose abandonment of the Children
and repeated failure to comply with the requirements contained in the permanency plans
provided adequate grounds for termination of her parental rights. Moreover, the evidence
presented at the hearing reflects that the Children had bonded with their foster parents and
had been separated from Alexis G. since April 2009, when Grandmother kept Alexis G. but
sent the Children to live with Suzanne S.
With all of the above considerations in mind, we conclude that there was clear and
convincing evidence to establish that termination of Mother’s parental rights was in the best
interest of the Children. Accordingly, we affirm the decision of the trial court.
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V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Heather M.
______________________________________
JOHN W. McCLARTY, JUDGE
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