In Re: Robert D.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Submitted on Briefs October 15, 2013
IN RE ROBERT D. ET AL.
Appeal from the Juvenile Court for Cumberland County
No. 2012-JV-2914 Larry M. Warner, Judge
No. E2013-00740-COA-R3-PT-FILED-JANUARY 17, 2014
This is a termination of parental rights action focusing on the two minor children (“the
Children”) of mother, Sandra W. (“Mother”). A termination petition was filed by the
Tennessee Department of Children’s Services (“DCS”) after the third custody proceeding
involving the Children. The petition alleges the statutory grounds of abandonment,
substantial noncompliance with the permanency plans, and persistent conditions. Following
a bench trial, the trial court granted the petition upon its findings, by clear and convincing
evidence, that (1) Mother had abandoned the Children, (2) Mother had failed to substantially
comply with the permanency plans, and (3) the conditions leading to removal still persisted.
The court further found, by clear and convincing evidence, that termination of Mother’s
parental rights was in the Children’s best interest. Mother has appealed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.
John R. Williams, Crossville, Tennessee, for the appellant, Sandra W.
Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Byrd Ferrara, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
OPINION
I. Factual and Procedural Background
Mother is a parent of four minor children who were the subject of a series of three
separate DCS custody proceedings: twin sons Charles and Christopher, now age eighteen;
Savannah, now age fifteen; and Robert, now age fourteen. The prior custody actions
occurred in 2000 and from 2005 through 2007. Mother’s drug use, the Children’s truancy
issues, domestic violence, and environmental issues in the home were the causes of the prior
proceedings.
The most recent custody episode began when Robert was charged with vandalism and
disorderly conduct in December 2010. Robert had previously been charged with truancy,
vandalism, and unruliness at school. DCS scheduled numerous meetings with Mother
concerning the matters. She cancelled, however, giving various reasons. DCS then
petitioned, seeking custody of Robert based upon Mother’s non-compliance and failure to
cooperate.
On April 8, 2011, when Mother appeared before the trial court for a permanency plan
review hearing, the court ordered Mother to submit to both urine and hair follicle drug
screens. Mother refused and was consequently placed in jail for contempt of court. When
Mother eventually complied, the drug screens proved positive for amphetamines, marijuana,
and opiates. A few days later, DCS received a referral regarding Savannah, who was
scheduled for truancy-related court proceedings due to thirty days of unexcused absences.
At that point, DCS petitioned for and was granted custody of the remaining children. Three
permanency plans were developed and ratified by the court during this most recent custody
proceeding.
In the months to follow, Mother was incarcerated on five different occasions, the
longest of which extended approximately four months. Mother failed or refused several drug
screens during the custody proceeding. She was arrested for driving under the influence of
an intoxicant (“DUI”) as recently as September 16, 2012. DCS filed a petition seeking
termination of Mother’s parental rights relative to all four children on August 21, 2012.1 The
older twin sons reached the age of eighteen on June 3, 2013, and were accordingly dismissed
from this action. A bench trial was conducted on February 15, 2013. The trial court granted
the petition upon its findings, by clear and convincing evidence, that (1) Mother had
abandoned the Children, (2) Mother had failed to substantially comply with the permanency
1
DCS also sought termination of the parental rights of the biological father (“Father”) of the
Children in the same petition, which the trial court granted. Father has not appealed.
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plans, and (3) the conditions leading to removal still persisted. The court further found, by
clear and convincing evidence, that termination of Mother’s parental rights was in the
Children’s best interest. Mother timely appealed.
II. Issues Presented
Mother presents the following issues for our review, which we have restated slightly:
1. Whether there was clear and convincing evidence to support termination of
Mother’s parental rights on the ground of abandonment by willful failure to
support.
2. Whether there was clear and convincing evidence to support termination of
Mother’s parental rights on the ground of abandonment by failure to establish
a suitable home.
3. Whether there was clear and convincing evidence to support termination of
Mother’s parental rights on the ground of abandonment by an incarcerated
parent.
4. Whether there was clear and convincing evidence to support termination of
Mother’s parental rights on the ground of substantial noncompliance with the
permanency plans.
5. Whether there was clear and convincing evidence to establish that the
termination of Mother’s parental rights was in the best interest of the Children.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
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“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
(1982)). As our Supreme Court has instructed:
In light of the constitutional dimension of the rights at stake in a termination
proceeding under Tenn. Code Ann. § 36–1–113, the persons seeking to
terminate these rights must prove all the elements of their case by clear and
convincing evidence. Tenn. Code Ann. § 36–1–113(c); In re Adoption of
A.M.H., 215 S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to minimize the
possibility of erroneous decisions that result in an unwarranted termination of
or interference with these rights. In re Tiffany B., 228 S.W.3d 148, 155 (Tenn.
Ct. App. 2007); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838,
861 (Tenn. Ct. App. 2005), and eliminates any serious or substantial doubt
about the correctness of these factual findings. In re Valentine, 79 S.W.3d at
546; State Dep’t of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435,
447 (Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Abandonment by Willful Failure to Support
The trial court, inter alia, terminated Mother’s parental rights on the statutory ground
that she abandoned the Children by willfully failing to support them. Tennessee Code
Annotated § 36-1-113(g)(1) (Supp. 2013) provides, as relevant to this action:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred; . . .
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Tennessee Code Annotated § 36-1-102(1)(A) (2010) defines abandonment, in relevant part,
as:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent(s) or guardian(s) of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent(s) or guardian(s)
either have willfully failed to visit or have willfully failed to support or have
willfully failed to make reasonable payments toward the support of the child;
...
(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 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; . .
..
Pursuant to the statute, the court must find that a parent’s failure to visit or support was
willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has
previously explained:
The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
failed to visit or “willfully” failed to support the child for a period of four
consecutive months.
In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005).
Failure to visit or support a child is “willful” when a person is “aware of his or her
duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no
justifiable excuse for not doing so.” Id. at 864.
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This Court further explained:
The willfulness of particular conduct depends upon the actor’s intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a person’s actions
or conduct.
Id. (citations omitted). Further, as Tennessee Code Annotated § 36-1-102(1)(G) expressly
provides: “Specifically, it shall not be required that a parent be shown to have evinced a
settled purpose to forego all parental rights and responsibilities in order for a determination
of abandonment to be made.”
In its final judgment, the trial court included the following specific findings regarding
Mother’s willful failure to support the Children:
The Respondent, [Mother], has been incarcerated during the four consecutive
months prior to the filing of this petition. [Mother] has been incarcerated from
9-17-11 to 9-18-11, from 9-26-11 to 11-9-11, on 1-26-12 and released same
day, from 2-1-12 to 6-12-12 and from 7-19-12 to 7-20-12.
[Mother] willfully failed to support said children for four (4) months
immediately preceding her incarceration. [Mother] has not contributed to the
support of the children since they were placed in custody on 12-20-10 and 4-
15-11. [Mother] is able bodied and capable of working and supporting the
children prior to her incarceration. [Mother] was aware of her duty to support
the children. [Mother] made no attempt to support the children prior to her
incarceration and has provided no justifiable excuse for failing to support the
children.
(Paragraph numbering omitted).
Having carefully reviewed the record in this cause, we conclude that the trial court’s
findings are supported by a preponderance of the evidence. The petition seeking termination
of Mother’s parental rights was filed on August 21, 2012. The proof adduced at trial
demonstrated that Mother had been incarcerated for part of the four months immediately
preceding the petition’s filing and had failed to support or to make reasonable payments
toward the support of the Children for four consecutive months immediately preceding her
incarceration. Mother had, in fact, paid no support whatsoever during the time the Children
had been in state custody, which was approximately two years at the time of trial. There was
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no proof that Mother was incapable of working, as she represented to DCS that she was
employed. Further, all three permanency plans referenced Mother’s duty to pay child support
for the Children, directing both the amount of such support and where it should be sent. The
assigned DCS caseworker also testified that Mother was aware of her duty to pay child
support. There is clear and convincing evidence demonstrating that Mother willfully failed
to support these Children for at least four months prior to her incarceration. The trial court
did not err in terminating Mother’s parental rights based on this statutory ground.
V. Abandonment by Failure to Establish Suitable Home
The trial court found, as an additional statutory ground for terminating Mother’s
parental rights, that she abandoned the Children by failing to establish a suitable home.
Tennessee Code Annotated § 36-1-102(1)(A) also defines abandonment, in relevant part, as:
(ii) The child has been removed from the home of the parent(s) or guardian(s)
as the result of a petition filed in the juvenile court in which the child was
found to be a dependent and neglected child, as defined in § 37-1-102, and the
child was placed in the custody of the department or a licensed child-placing
agency, that the juvenile court found, or the court where the termination of
parental rights petition is filed finds, that the department or a licensed
child-placing agency made reasonable efforts to prevent removal of the child
or that the circumstances of the child’s situation prevented reasonable efforts
from being made prior to the child’s removal; and for a period of four (4)
months following the removal, the department or agency has made reasonable
efforts to assist the parent(s) or guardian(s) to establish a suitable home for the
child, but that the parent(s) or guardian(s) have made no reasonable efforts to
provide a suitable home and have demonstrated a lack of concern for the child
to such a degree that it appears unlikely that they will be able to provide a
suitable home for the child at an early date. The efforts of the department or
agency to assist a parent or guardian in establishing a suitable home for the
child may be found to be reasonable if such efforts exceed the efforts of the
parent or guardian toward the same goal, when the parent or guardian is aware
that the child is in the custody of the department; . . . .
In its final judgment, the trial court included the following specific findings regarding
Mother’s failure to establish a suitable home:
The children were removed from the parents, [Mother] and [Father], as the
result of a Petition filed in Juvenile Court in which the children were found to
be dependent and neglected as defined by Tenn. Code Ann. §37-1-102(12) and
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the children were placed in the Department’s custody. The Juvenile Court
found that the Department made reasonable efforts to prevent removal of the
children or the circumstances of the children’s situation prevented reasonable
efforts from being made prior to the children’s removal.
For a period of four (4) months following the removal of the children from the
parents, the Department has made reasonable efforts to assist the parents,
[Mother] and [Father], to establish a suitable home for the children, but the
parents have made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the children to such a degree that it appears
unlikely that [Mother] or [Father] will be able to provide a suitable home for
the children at an early date. That four month period of time following the
removal for Robert [D.] was from 12-20-10 to 4-20-11 and for Savannah [D.]
from 4-15-11 to 8-15-11.
The reasonable efforts the Department made in the first four months include
making the children available for visitation, arranging supervision for the
visitation, providing transportation for visitation, administering or attempting
to administer drug screens to the parents, home visits to the parents’ homes,
pointing out environmental issues in home and instructing parent on how to
remedy, arranging, paying for and providing transportation to a psychological
intake appointment for the mother, provided information where the parents
could obtain free [alcohol and drug] A&D assessments and paying the
mother’s electric bill.
The parents’ lack of reasonable efforts includes not having suitable housing,
continuing to abuse drugs and not cooperat[ing] with A&D treatment.
(Paragraph numbering omitted.) The trial court concluded that Mother had abandoned the
Children by failing to provide a suitable home pursuant to Tennessee Code Annotated § 36-
1-102(1)(A)(ii).
The evidence preponderates in favor of the trial court’s factual findings. Robert,
having been found to be dependent and neglected by order of the trial court on December 20,
2010, was placed in the custody of DCS. Through that order, the court further found that
DCS had made reasonable efforts to prevent Robert’s removal but that Mother had
continually refused to cooperate with in-home services needed to allow Robert to remain in
her home. Similarly, Savannah was placed into DCS protective custody by the trial court
on April 19, 2011, after Mother failed a court-ordered drug screen. By its order, the court
found that reasonable efforts were made by DCS to prevent removal of the Children or that
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the emergency nature of Savannah’s condition or other circumstances prevented reasonable
efforts prior to the Children’s removal.
During a period of twenty-six months following Robert’s removal and a term of
twenty-two months following Savannah’s removal, DCS made reasonable efforts to assist
the Mother in establishing a suitable home for the Children. DCS visited Mother’s home,
provided information and advice to Mother regarding environmental hazards, and paid
Mother’s utility bill. DCS provided in-home services to Mother, which addressed such issues
as parenting and housekeeping skills. DCS also scheduled a psychological assessment for
Mother, which included paying for same and providing transportation. DCS further provided
Mother with information regarding a free alcohol and drug assessment and obtained a
placement for Mother at a treatment facility, which Mother was unable to attend due to her
subsequent incarceration.
Despite these efforts by DCS, Mother made no reasonable effort to provide a suitable
home for the Children. At the time of trial, Mother was still residing in the same home that
previously presented environmental concerns; the home remained without electricity or
running water. Mother’s only means of heating the home was by use of a kerosene heater,
but when DCS visited the home less than two weeks before trial, Mother was staying with
a neighbor because she had no money to buy kerosene. Despite having completed outpatient
treatment in 2011, Mother experienced a subsequent relapse, continuing to fail drug screens
and incurring a recent DUI charge. Mother had been incarcerated multiple times during the
most recent custody event, and other individuals who appeared to be under the influence of
drugs were staying at her home at various times when DCS visited. Mother’s dearth of effort
demonstrates a lack of concern for the Children to such a degree that it appears unlikely that
she will be able to provide a suitable home at an early date. The efforts of DCS to assist
Mother clearly exceeded the efforts of Mother toward providing a suitable home for the
Children. The trial court did not err in finding that Mother had abandoned the Children by
failing to provide a suitable home and terminating her parental rights based on this statutory
ground.
VI. Abandonment by Exhibiting Wanton Disregard Prior to Incarceration
As previously stated, Tennessee Code Annotated § 36-1-102(1)(A) (2010) defines
abandonment, in relevant part, as:
(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 either
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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;
....
(Emphasis added.) Regarding the ground of abandonment by wanton disregard, the statute
does not limit the parent’s conduct to any particular four-month period prior to incarceration.
In re Audrey S., 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005).
The trial court found in its final decree, inter alia:
The Respondent, [Mother], engaged in such conduct prior to incarceration as
to exhibit a wanton disregard for the welfare of the children. The
Respondent’s conduct in wanton disregard for the welfare of the children was
continued drug abuse, ongoing criminal activity, repeated incarcerations,
violating orders of protection, failure to support the children, neglect of the
children, failing to maintain stable or appropriate housing for the children, not
addressing the children’s truancy issues, refusing services to address these
issues, exposing the children to domestic violence, and exposing the children
to drugs which contributed to the children’s A&D issues.
The evidence adduced at trial preponderates in favor of these findings. There was no
question that Mother continued to use drugs until the time of trial, despite efforts by DCS to
obtain appropriate treatment for her. During the time the Children were in state custody,
Mother failed and refused numerous drug screens and was repeatedly incarcerated for
charges involving drug and alcohol use. Although Mother had recently sought outpatient
treatment, she had not returned to see her drug counselor for five weeks. Mother provided
no explanation. The DCS caseworker testified that the Children had significant truancy
issues while living with Mother and had been exposed to drug use and domestic violence.
At least one child had developed serious drug and alcohol issues himself, requiring two
hospitalizations.
The applicable statute does not define “wanton disregard.” We have previously
explained the purpose behind this statutory section, however, as follows:
Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the commonsense notion
that parental incarceration is a strong indicator that there may be problems in
the home that threaten the welfare of the child. Incarceration severely
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compromises a parent’s ability to perform his or her parental duties. A
parent’s decision to engage in conduct that carries with it the risk of
incarceration is itself indicative that the parent may not be fit to care for the
child. However, parental incarceration is not an infallible predictor of parental
unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s second test
for abandonment does not make incarceration alone a ground for the
termination of parental rights. An incarcerated or recently incarcerated parent
can be found guilty of abandonment only if the court finds, by clear and
convincing evidence, that the parent’s pre-incarceration conduct displayed a
wanton disregard for the welfare of the child. Thus, 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 risk of substantial harm to the welfare of the child.
In re Audrey S., 182 S.W.3d at 866 (internal citations omitted).
Tennessee courts have recognized in numerous cases that a parent’s drug abuse and
criminal activity can constitute a wanton disregard for the welfare of the child. See In re
S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006); In re Audrey S., 182 S.W.3d at 867-68;
In re Daysia D., M2012-00608-COA-R3-PT, 2012 WL 4503202 at *2 (Tenn. Ct. App. Sep.
28, 2012). For example, in Daysia, the mother was convicted of selling drugs within a
school zone. Id. at *3. Mother admitted at trial that she also smoked marijuana at home
while the children were present but in a different room. Id. This Court found that such
behavior constituted a wanton disregard for the children’s welfare. Id.
In the case of In re Chyna L.M.D., E2012-00661-COA-R3-PT, 2012 WL 3776699 at
*1 (Tenn. Ct. App. Aug. 31, 2012), the father was on probation when the child was
conceived. He subsequently violated his probation by failing to appear for court and testing
positive for illegal drugs. Id. The father was offered the opportunity to participate in the
“Community Alternatives to Prison Program” (“CAPP”), which would have allowed him to
complete his sentence in a halfway house and remain in the community with his girlfriend
and child. Id. When the father appeared in court for a hearing, however, he behaved in such
a manner that the CAPP offer of enhanced probation was withdrawn. Id. Consequently, the
father’s probation was revoked, and he was returned to prison. Id. This Court found that
such conduct was sufficient to establish that the father exhibited a wanton disregard for the
welfare of his unborn child. Id. at *5.
Similarly, in the case at bar, Mother continuously engaged in drug use and criminal
behavior, which affected her ability to provide a suitable home for the Children. The
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Children were exposed to drug use and domestic violence in the home. Mother failed to
remedy her drug problem, which had existed for many years. Mother instead chose to
embark upon a course of continuing drug abuse and criminal activity, leading to multiple
incarcerations. We conclude that Mother clearly engaged in conduct prior to her
incarceration that exhibited a wanton disregard for the welfare of the Children. There is
clear and convincing evidence to support the trial court’s termination of Mother’s parental
rights on this statutory ground.
VII. Substantial Noncompliance with Permanency Plans
The trial court also terminated Mother’s parental rights, inter alia, on the ground that
she failed to substantially comply with the reasonable responsibilities set out in her
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) (Supp. 2013) provides,
relevant to this action, as follows:
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency
plan pursuant to the provisions of title 37, chapter 2, part 4.
In its findings regarding Mother’s efforts under the permanency plans, the trial court
stated in relevant portion:
The Respondent, [Mother], has not substantially complied with the provisions
of the permanency plans and therefore her parental rights should be terminated
pursuant to Tenn. Code Ann. § 36-1-113(g)(2).
The initial permanency plan for Robert dated 1-19-11 requires her to submit
to an A&D assessment, follow the recommendations from the A&D
assessment, submit to random urine and hair follicle drug screens, have a safe
and stable home with utilities, have a mental health assessment, follow the
recommendations from the mental health assessment, actively participate in
family counseling with Robert, participate in child’s educational meetings.
The Court ratified the initial permanency plan on 4-8-11 and found that the
plan was reasonable, necessary and in the best interest of the children.
The initial permanency plan for the other children and a revised plan for
Robert dated 5-3-11 requires her to only take medications prescribed to her by
doctor, take medications as prescribed, submit to random urine and hair follicle
drug screens, make prescription medications available to DCS case manager
for pill counts, submit to an A&D assessment, follow the recommendations
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from the A&D assessment until successfully completed, refrain from others
who are known to abuse drugs or alcohol, obtain a mental health assessment,
follow all recommendations from the mental health assessment, sign releases
of information, maintain housing, pay utilities and rent monthly, provide proof
to DCS of paying rent and utilities, obtain and maintain legal means of
support, develop a budget, attend and actively participate [in] family
counseling with Robert, and be involved in children’s education by attending
meetings. The Court ratified the initial permanency plan on 5-27-11 and found
that the plan was reasonable, necessary and in the best interest of the children.
The revised permanency plan dated 10-24-11 requires her to only take
medications prescribed to her by doctor, take medications as prescribed,
submit to random urine and hair follicle drug screens, make prescription
medications available to DCS case manager for pill counts, submit to an A&D
assessment, follow the recommendations from the A&D assessment until
successfully completed, refrain from others who are known to abuse drugs or
alcohol, not use any illegal drugs, obtain a mental health assessment, follow
all recommendations from the mental health assessment, sign releases of
information, maintain housing, pay utilities and rent monthly, provide proof
to DCS of paying rent and utilities, obtain and maintain legal means of
support, develop a budget, follow all orders of the court, not incur any further
legal charges, attend and actively participate [in] family counseling with
Robert, and be involved in children’s education by attending meetings. The
Court ratified the revised permanency plan on 12-16-11 and found that the
plan was reasonable, necessary and in the best interest of the children.
The requirements in the permanency plans are all reasonably related to
remedying the conditions that necessitate foster care.
[Mother] has not completed the following requirements in the permanency
plans: she has not successfully completed A&D treatment or aftercare, she
continued to test positive for illicit drugs, she has incurred new criminal
charges, she has not followed the recommendations from her mental health
assessment and she does not have appropriate housing with all utilities.
The Department made reasonable efforts to assist [Mother] in complying with
the requirements in the permanency plan by making the children available for
visitation, arranging supervision for the visitation, providing transportation for
visitation, administering or attempting to administer drug screens to the parent,
home visits to the parent’s home, pointing out environmental issues in home
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and instructing parent on how to remedy, arranging, paying for and providing
transportation to a psychological intake appointment for the mother, provided
information where the parent could obtain free A&D assessments, paid the
mother’s electric bill, arranging, paying for and transporting her to a
psychological evaluation, arranging and paying for hair follicle drug screens
and attempting to assist her in obtaining in-patient treatment.
[Mother] was advised on 5-3-11 and 10-26-11 that failure to substantially
comply with the permanency plans was grounds for termination of parental
rights.
(Paragraph numbering omitted.)
Upon careful review, we determine that a preponderance of the evidence supports
these findings. DCS personnel’s testimony established that Mother was living in a home
with no utilities, including no running water. Mother had never provided any proof of her
employment or her prescriptions to DCS. Although Mother had submitted to a few drug
screens, usually not when initially requested, she also had failed or refused numerous other
drug screens. The caseworker testified that during one or two visits to Mother’s home,
another individual was present who appeared to be under the influence of drugs. Mother also
continued to incur criminal charges and was repeatedly incarcerated.
The psychological examiner retained by DCS to perform Mother’s mental health
evaluation testified that Mother suffered from a serious substance abuse problem, such that
it was difficult to discern whether Mother’s symptoms were indicative of mental health issues
or the result of substance abuse. The examiner further testified that Mother needed to be
detoxified and participate in inpatient treatment. He opined that Mother’s prolonged
addiction would be particularly difficult to overcome. The drug counselor who had met with
Mother during three outpatient appointments at the close of 2012 testified that Mother had
not returned for five weeks by the time of trial. Mother had never contacted the counselor
to explain why she had not honored her appointments. The counselor concluded that Mother
was not trying to remedy her drug problem. As the counselor testified, she advised Mother
concerning free Narcotics Anonymous meetings and suggested that Mother attend ninety
meetings in ninety days. Mother, however, failed to attend any such meetings.
Regarding a parent’s substantial noncompliance with a permanency plan, this Court
has previously explained:
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and tittle
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of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-113(g)(2),
the Department must demonstrate first that the requirements of the permanency
plan are reasonable and related to remedying the conditions that caused the
child to be removed from the parent’s custody in the first place, and second
that the parent’s noncompliance is substantial in light of the degree of
noncompliance and the importance of the particular requirement that has not
been met. Trivial, minor, or technical deviations from a permanency plan’s
requirements will not be deemed to amount to substantial noncompliance.
In re M.J.B., 140 S.W.3d 643, 656-57 (Tenn. Ct. App. 2004) (internal citations omitted).
In the present action, the Department demonstrated that the requirements of the
permanency plans were reasonable and related to remedying the conditions initially causing
the Children to be removed from Mother’s custody. The evidence also preponderates in
favor of a determination that Mother’s noncompliance with the reasonable requirements in
her permanency plans was substantial, as she never seriously addressed her drug problem,
did not follow the recommendations of her mental health evaluation, continued to incur
criminal charges, associated with others who abused drugs, and did not maintain a suitable
home with utilities to which the Children could return. We therefore conclude that there was
clear and convincing evidence of the statutory ground of Mother’s substantial noncompliance
with the requirements of the permanency plans. The trial court did not err in terminating
Mother’s parental rights based upon same.
VIII. Persistent Conditions
The trial court also found that Mother’s parental rights should be terminated based
upon the statutory ground of persistent conditions. Although Mother did not appeal the trial
court’s determination in this regard, we will nonetheless address this ground in our analysis
due to the “importance of permanently placing children and the just, speedy resolution of
cases.” In re Angela E., 303 S.W.3d 240, 251 n. 14 (Tenn. 2010).
Tennessee Code Annotated § 36-1-113(g)(3) provides, as an additional ground for
termination of parental rights:
The child has been removed from the home of the parent or guardian by order
of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
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therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned
to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable and permanent home; . . . .
The trial court made the following findings with regard to this statutory ground:
The children have been removed from the custody of their parents for more
than six (6) months; the conditions which led to the removal of the children
from the home of [Mother] and [Father] still exist and other conditions exist
which in all probability would cause the children to be subject to further abuse
and/or neglect, making it unlikely that the children could be returned to
[Mother] or [Father] in the near future; there is little likelihood that these
conditions will be remedied at an early date so that the children can be returned
to [Mother] or [Father] in the near future; the continuation of the parent or
guardian and child relationship greatly diminishes the child’s chance of an
early integration into a stable and permanent home and therefore their parental
rights should be terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(3).
The conditions that led to the removal of the children from the homes of
[Mother] and [Father] were drug abuse, mental health issues, poor parenting
including lack of supervision and criminal activity on the part of both parents.
The conditions that prevent the children’s return to the parents’ homes are their
ongoing criminal activity, drug abuse, failure to successfully complete A&D
treatment, her failure to follow mental health recommendations, his failure to
obtain a mental health assessment, their lack of appropriate housing, the lack
of utilities in her home and his lack of income. She attended three A&D
treatment sessions at CPR recently, but then quit going with no explanation.
She refused a drug screen on 2-4-13.
(Paragraph numbering omitted.)
Upon a thorough review of the record, we conclude that these findings are supported
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by a preponderance of the evidence. The Children were removed for a period of more than
six months, and the predominant condition leading to removal, Mother’s drug problem, still
persists. Mother did not comply with treatment recommendations and continued to fail or
refuse drug screens. She accrued drug and alcohol-related criminal charges up to the date
of trial. There is little likelihood that this condition will be remedied in the near future, as
the evidence at trial demonstrated that Mother had battled this issue for at least thirteen years
and was doing little or nothing to address it. The evidence also demonstrated that
continuation of the parent and child relationship greatly diminishes the Children’s chances
of integration into a safe, stable, and permanent home. We conclude that the trial court
properly terminated Mother’s parental rights based on this statutory ground as well.
IX. Best Interest of Children
Finally, Mother contends that there was not clear and convincing evidence that
termination of her parental rights was in the Children’s best interest. We disagree. When
a parent has been found to be unfit by establishment of a statutory ground for termination of
parental rights, as here, the interests of parent and child diverge, and the focus shifts to what
is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877. Tennessee Code
Annotated § 36-1-113(i) (Supp. 2013) provides a list of factors the trial court is to consider
when determining if termination of parental rights is in the child’s best interest. This list is
not exhaustive, and the statute does not require the court to find the existence of every factor
before concluding that termination is in a child’s best interest. In re Audrey S., 182 S.W.3d
at 878 (“The relevancy and weight to be given each factor depends on the unique facts of
each case.”). Further, the best interest of a child must be determined from the child’s
perspective and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in
the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does
not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
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visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment
is likely to have on the child’s emotional, psychological and
medical condition;
(6) Whether the parent or guardian, or other person residing with
the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child,
or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol,
controlled substances or controlled substance analogues as may
render the parent or guardian consistently unable to care for the
child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional
status would be detrimental to the child or prevent the parent or
guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
In determining that termination of Mother’s parental rights was in the best interest of
the Children, the trial court stated:
1. [Mother] and [Father] have not made an adjustment of circumstances, conduct
or conditions as to make it safe and in the children’s best interest to be in the
home of the parent.
2. [Mother] and [Father] have failed to effect a lasting adjustment after
reasonable efforts by available social agencies for such duration of time that
lasting adjustment does not reasonably appear possible.
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3. The physical environment of [Mother] and [Father]’s home is unhealthy and/or
unsafe for the children.
4. There is criminal activity in [Mother] and [Father]’s home.
5. [Mother] and [Father]’s use of alcohol or controlled substances renders them
consistently unable to care for the children [in] a safe and stable manner.
6. [Mother] and [Father]’s mental and/or emotional status would be detrimental
to the children and/or prevent them from effectively providing safe and stable
care and supervision for the children.
7. [Mother] and [Father] have not paid child support consistently with the child
support guidelines promulgated by the Department pursuant to Tenn. Code
Ann. § 36-5-101.
8. [Mother] and [Father] have not paid a reasonable portion of the children’s
substitute physical care and maintenance when financially able to do so. They
have not regularly provided food, clothing, toiletries, school supplies or the
other things the children needed on a daily basis.
9. [Mother] and [Father] continue to make lifestyle choices that prevent them
from being able to parent the children or to provide a home for the children.
10. The children need to be released from the stigma of being foster children.
Thus the Court finds that [DCS] has proven by clear and convincing evidence
that grounds for termination of parental rights exists and has proven by clear
and convincing evidence that it is in the best interest of the children that all the
parental rights of said Respondents to said children be forever terminated; . .
..
Again, we determine that the evidence adduced at trial supports the trial court’s
findings. This was the third custody proceeding involving these Children. At the time of
trial, DCS had been involved with this family for approximately thirteen years. Mother had
failed to make an adjustment of her circumstances or conduct such that it would be safe for
the Children to be returned to her, despite reasonable efforts by DCS. By the time of trial,
the Children had been in state custody for approximately two years. Mother’s drug problem
had persisted for many years without any substantial effort at remedying same by Mother.
An appropriate adjustment does not appear reasonably possible. Although Mother had
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continued visitation with the Children, there was no testimony regarding whether she
maintained a meaningful relationship with them. Testimony was presented evincing that
returning the Children to Mother would be detrimental to them emotionally, psychologically,
and medically. Mother had not attended to the Children’s medical, educational, or emotional
needs while they were in her care, and the testimony established that she was unlikely to do
so in the future.
DCS personnel testified that the Children were doing well in their current placements
and that Robert especially needed significant environmental structure in order for his needs
to be met. DCS employees opined that permanency could be achieved for the Children and
that it was detrimental for the Children to remain in foster care indefinitely. Additional
testimony was presented that Mother had, in recent months, aided one of her older sons in
an attempt to run away from his DCS placement. According to the testimony, Robert was
caught possessing cigarettes after Mother’s visit with him in December 2011.
The DCS employees’ testimony established that Mother had subjected the Children
to an environment of drugs and domestic violence when they were in her home. Mother
continued to test positive for illicit drugs, incur criminal charges, and allow other persons
who were under the influence of drugs to remain in her home. According to the
psychological examiner who assessed Mother, she needed to be detoxified and undergo
serious inpatient drug treatment before her mental status could be accurately evaluated. He
also explained that Mother’s continuing drug use created a risk for the Children. The
evidence supports a determination that Mother’s mental and emotional status would prevent
her from effectively providing safe and stable care for the Children. Finally, Mother had paid
no child support despite being aware of her duty to do so.
Following a thorough review of the record, we conclude that there is clear and
convincing evidence that termination of Mother’s parental rights is in the best interest of the
Children. We discern no error in the trial court’s determination that Mother’s parental rights
should be terminated.
X. Conclusion
The judgment of the trial court terminating the parental rights of Mother is affirmed.
Costs on appeal are taxed to appellant, Sandra W. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of
costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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