In Re Gabriel B.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 10, 2013 Session
IN RE GABRIEL B. ET AL.
Appeal from the Juvenile Court for Monroe County
No. J12-171 J. Reed Dixon, Judge
No. E2013-01581-COA-R3-PT-FILED-MARCH 28, 2014
This is a termination of parental rights case, focusing on Gabriel B., Gracie B., and Zachary
B., the minor children (“Children”) of Donna B. (“Mother”) and Richard B. (“Father”). The
Children were taken into protective custody by the Tennessee Department of Children’s
Services (“DCS”) on June 9, 2011, after they had been found in the care of an inappropriate
caregiver while Mother was out of state. On April 19, 2012, DCS filed a petition to
terminate the parental rights of Mother and Father. Father subsequently surrendered his
parental rights to the Children and is not a party to this action. Following a bench trial held
on November 9, 2012, and January 4, 2013, the trial court granted the petition upon its
finding, by clear and convincing evidence, that (1) Mother had abandoned the Children by
failing to provide a suitable home, (2) Mother had failed to substantially comply with the
permanency plans, (3) the conditions causing the removal of the Children into protective
custody persisted, and (4) Mother’s mental condition was impaired to the point of being
unable to provide for the further care and supervision of the Children. 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. Discerning no error, 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 D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Steven B. Ward, Madisonville, Tennessee, for the appellant, Donna B.
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
DCS initially became involved with the Children through an anonymous referral
alleging abuse and neglect in May 2011. At the time, Gabriel was five years old, Gracie was
three years old, and Zachary was eleven months old. DCS investigated the circumstances
and worked with Mother in her home for two to three weeks to ensure proper care of the
Children. Mother and the Children had moved from Florida to Tennessee in early May 2011
and were living in an apartment in Madisonville. On June 6, 2011, Mother informed her
DCS case manager, Jodi Skiles, that she was traveling to Florida and taking the Children with
her. Mother, however, left the Children with a neighbor, S.D., in the apartment complex
when she left for Florida.
On June 8, 2011, at nearly midnight, S.D. contacted Monroe County law enforcement
officials to report that Mother had abandoned the Children. S.D. sent a text message to
Mother, stating that she had reported Mother to the police. Calling from the road, Mother
spoke with a police officer who was at S.D.’s apartment. The officer informed Mother that
S.D. had left the Children in the care of an apartment complex maintenance worker who was
a registered sex offender. Mother then contacted Ms. Skiles and asked her to check on the
Children, stating that she was traveling on the highway at the Georgia-Florida border. Ms.
Skiles investigated the situation, brought the Children to the DCS office, and called Mother.
Mother assured Ms. Skiles that she would return to Tennessee immediately. By 11:00 a.m.
the next day, Mother had not returned and had provided no definite arrival time. DCS
petitioned the trial court for an emergency protective custody order, which the court granted
on June 9, 2011.
Mother arrived at the DCS office in Monroe County in time to attend a child and
family team meeting and participate in the development of an initial permanency plan on
June 10, 2011. Having driven a rental truck, she slept in the vehicle in the DCS parking lot
for two nights, with DCS personnel providing her food and a medical referral. According
to DCS personnel, Mother gave various reasons for her failure to arrive earlier to retrieve the
Children, including that her vehicle had broken down, that a female traveling companion,
M.F., had refused to return to Tennessee, and that she had been kidnapped by M.F. At trial,
Mother testified that M.F. had disappeared in Georgia with the truck and Mother’s cellular
telephone for a period of four hours and that Mother was only able to contact DCS and drive
back to Tennessee after M.F. returned. Mother told DCS personnel that she was traveling
to Florida to help Father and that she left the Children in Tennessee because she did not want
to take them into a “bad situation.”
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Following Mother’s initial nights sleeping in the rental truck after the Children’s
removal, she agreed to stay in a shelter in Knoxville for one night. She then traveled to
Indiana where her own foster parents lived. Jessica Buckner, who became the Children’s
DCS case manager upon their removal into protective custody, testified that she informed
Mother of the process for obtaining an Interstate Compact on the Placement of Children
(“ICPC”) report on the home where Mother was living in Indiana. Mother testified that she
declined the ICPC process because she was living with a friend in Indiana and the home was
not suitable for the Children.
When Mother returned to Madisonville in September 2011, she began residing with
Randall A., a man she had met during the month she previously lived in Tennessee with the
Children. Mother and Randall A. lived in three different locations between September 2011
and the beginning of trial in November 2012. At trial, Mother presented a lease, signed on
April 27, 2012, for her most recent residence, a house off Highway 411 in Madisonville. Ms.
Buckner testified that DCS did not learn of the most recent housing situation until September
2012, five months after Mother and Randall A. had executed the lease. A DCS investigation
in October 2012 concluded that the home itself presented no safety concerns. Ms. Buckner
testified, however, that DCS conducted a background check regarding Randall A. that
revealed he was the father of a child not in his custody and had been arrested for DUI.
Despite requests from DCS and inclusion of Randall A. in the most recent permanency plan,
Randall A. had failed to submit to an alcohol and drug assessment or offer documentation
explaining why he did not have custody of his own child by the time of trial.
Following a hearing conducted on October 20, 2011, the trial court adjudicated the
Children as dependent and neglected as to Mother and entered a written order to that effect
on November 4, 2011.1 DCS developed three permanency plans for the Children. The first
permanency plan was established on June 27, 2011, and ratified by the trial court on October
20, 2011. Under the plan, Mother’s requirements were that she undergo a psychological
evaluation and follow all resultant recommendations, establish a sufficient income, establish
reliable transportation, establish stable housing, and pay court-ordered child support. The
permanency plan was revised in December 2011 and ratified by the trial court on February
2, 2012. In addition to the initial requirements, the revised plan required Mother to undergo
a mental health assessment intake, participate in the Children’s Individualized Education
Plan (“IEP”) meetings and medical appointments, complete parenting classes and
demonstrate learned parenting skills during visitation with the Children, resolve her
outstanding criminal warrants in Indiana, and resolve outstanding bills and debts. In June
2012, two months after the petition for termination had been filed, DCS developed a third
1
The trial court adjudicated the Children dependent and neglected as to Father in an order entered
July 5, 2012.
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permanency plan with Mother’s participation. In addition to the previous requirements, this
plan required Mother to pay $100 a month in child support and ensure that Randall A. submit
to an alcohol and drug assessment and follow any resultant recommendations. The third
permanency plan was not reviewed for ratification by the trial court prior to trial.
Mother underwent a psychological evaluation in Indiana but was dismissive of the
results in speaking to DCS personnel afterward. After initially resisting a second
psychological evaluation in Tennessee, Mother submitted to one in December 2011.
Although mental health counseling was recommended pursuant to this evaluation, Mother
refused further treatment.
Mother completed in-home parenting classes arranged by DCS, but testimony from
Ms. Buckner and a therapeutic visitation supervisor demonstrated that Mother sometimes
parented inappropriately during visitation with the Children, calling the oldest child
derogatory names, refusing to take the Children to the bathroom until they urinated on
themselves, and leaving early on one occasion because she felt the Children were not paying
her enough attention. She attended one IEP meeting for Gabriel and some medical
appointments for the Children, but testimony established that she was often disruptive at
these appointments. Mother failed to resolve her pending criminal warrants in Indiana.
Mother testified that she was employed through several positions during the time
period the Children were in protective custody, including employment at a Wendy’s
restaurant in Indiana; the CVG factory in Vonore, Tennessee; a Dollar General in Tennessee;
and by the time of trial, Home Healthcare Services in Athens, Tennessee. Mother did not
establish reliable transportation until she and Randall A. purchased a vehicle in March 2012.
Mother did not pay child support at any time while the Children were in protective custody.
On April 19, 2012, DCS filed its petition seeking termination of Mother’s and
Father’s parental rights on the statutory grounds of abandonment by failure to support,
abandonment by failure to provide a suitable home, substantial noncompliance with the
permanency plans, persistence of conditions that led to the Children’s removal into protective
custody, and mental incompetence of Mother to parent. The trial court appointed counsel for
each parent and attorney Judith Hamilton as guardian ad litem (“GAL”) for the Children.
Father surrendered his parental rights to the Children on September 11, 2012.2
2
The petition to terminate parental rights listed the biological father of the two youngest children as
Father’s twin brother, Michael B., whom Mother had told DCS was the father of Gracie and Zachary.
Mother testified at trial that Michael B. was the biological father of all three Children. Michael B. was
deceased by the time the Children were taken into protective custody. Richard B. (“Father”) was still married
to Mother at the time he surrendered his parental rights to all three Children.
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Following a bench trial held November 9, 2012, and January 4, 2013, the trial court
found, by clear and convincing evidence, that (1) Mother had abandoned the Children by
failing to provide a suitable home, (2) Mother had failed to substantially comply with the
permanency plans, (3) the conditions causing the removal of the Children into protective
custody persisted, and (4) Mother’s mental condition was impaired to the point of being
unable to provide for the further care and supervision of the Children. The court further
found, by clear and convincing evidence, that it was in the best interest of the Children to
terminate Mother’s parental rights. The trial court entered its final decree on June 17, 2013.
Mother timely appealed.
II. Issues Presented
On appeal, Mother presents five issues, which we have restated as follows:
1. Whether the trial court erred by finding there was clear and convincing
evidence that Mother had abandoned the Children by failing to establish a
suitable home and terminating her parental rights based on that ground.
2. Whether the trial court erred by finding there was clear and convincing
evidence that Mother had substantially failed to comply with the statements of
responsibilities in the permanency plans and terminating her parental rights on
that ground.
3. Whether the trial court erred by finding there was clear and convincing
evidence that the conditions that led to the Children’s removal into protective
custody persisted and terminating Mother’s parental rights on that ground.
4. Whether the trial court erred by finding clear and convincing evidence that
Mother’s mental condition was impaired to the point of being unable to
provide for the further care and supervision of the Children and terminating
Mother’s parental rights on that ground.
5. Whether the trial court erred by finding there was clear and convincing
evidence that it was in the best interest of the Children to terminate Mother’s
parental rights.
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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).
“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
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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 Failure to Provide a Suitable Home
The trial court, inter alia, terminated Mother’s parental rights on the statutory ground
that she abandoned the Children by failing to provide a suitable home for 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; . . .
Tennessee Code Annotated § 36-1-102(1)(A) (2010) 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
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parent or guardian toward the same goal, when the parent or guardian is aware
that the child is in the custody of the department; . . . .
The trial court found and Mother does not dispute on appeal that DCS made
reasonable efforts to assist her in establishing a suitable home. In its final judgment, the trial
court included the following specific findings regarding this issue:
As evidenced by all testimony in this case, [Mother’s] transient lifestyle and
the fact that she has not addressed her mental health issues leave this Court no
choice but to find that she has demonstrated a lack of concern for the children
to such a degree that it appears unlikely that they will be able to provide a
suitable home for the children at an early date. While it appears that she has
been in the same living situation for quite some time, she did not make
reasonable efforts to stabilize herself, her home and her personal condition in
the four months after the removal despite assistance from DCS.
The evidence preponderates in favor of the trial court’s factual findings. The
determinative period for this analysis spans the four months beginning with the Children’s
removal into protective custody on June 10, 2011, and ending October 10, 2011. During this
period, Mother was for the first three months living with a friend in Indiana in a home she
admitted was unsuitable for the Children. During the fourth month, Mother moved to
Tennessee and began residing with Randall A., whom she had met during the one month she
had lived previously in Tennessee with the Children. Mother and Randall A. lived together
in three different homes between September 2011 and the first day of trial in November
2012, with the most recent home being the one for which Mother produced a copy of the
lease, dated April 2012, at trial.
In addition to finding that Mother’s lifestyle had been “transient,” the court expressly
found that Mother’s failure to address her mental health issues indicated unlikelihood that
she would be able to provide a suitable home for the Children at an early date. See, e.g., In
re M.F.O., No. M2008-01322-COA-R3-PT, 2009 WL 1456319 at *5 (Tenn. Ct. App. May
21, 2009) (concluding that “matters related to counseling and assessments” are “directly
related” to the ground for termination of failure to establish a suitable home and stating:
“While there is, of course, a physical element to the concept of a ‘suitable home,’ the
problems and conditions for which the various assessment and counseling efforts were
conducted address matters which make the home environment suitable for raising children
and which keep them from becoming dependent and neglected.”).
As DCS notes, Mother does not address directly in her brief on appeal the trial court’s
finding that she abandoned the Children through failure to provide a suitable home. Mother
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does raise the issue, however, of the trial court’s ruling as to all grounds for termination and
argues that she substantially complied with the requirements of the permanency plan, one of
which was to establish a suitable home. Mother’s argument regarding this issue is based on
the undisputed fact that at the time of trial, she was living in a home that DCS had
investigated in October 2012, a month before the first day of trial, and found to be physically
adequate for the Children. Mother’s argument ignores two key facts regarding her living
situation. First, the determinative four-month period ended six months before Mother and
Randall A. procured the home they lived in at the time of trial. Second, despite requests from
DCS and inclusion in the third permanency plan, Randall A. failed to procure an alcohol and
drug assessment or provide DCS or the trial court with documentation as to why he did not
maintain custody of his own child. Moreover, as noted above, Mother’s failure to address
her own mental health concerns was a primary factor in the trial court’s ruling on this ground.
The trial court did not err in terminating Mother’s parental rights based upon this statutory
ground.
V. Substantial Noncompliance with Permanency Plans
The trial court also found clear and convincing evidence that Mother failed to
substantially comply with the reasonable responsibilities set out in her permanency plans.
Tennessee Code Annotated § 36-1-113(g)(2) provides as an additional ground for
termination of parental rights:
(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:
In this case, the Court finds that there is clear and convincing evidence
that [Mother] has not substantially complied with the responsibilities and
requirements set out for her in the children’s permanency plans. The
permanency plans were reasonably related to remedying the reasons that
brought the children into foster care, and were in the children’s best interests.
DCS provided extensive reasonable efforts as detailed above in the
Findings of Fact. [Mother] completed the parenting classes and parenting
assessment but has not demonstrated the learned parenting skills as evidenced
by multiple witnesses about [Mother’s] inappropriate comments and name-
calling of the children during visitations. [Mother] has been resistant to change
her methods of parenting. [Mother] did not fully cooperate with the
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psychological evaluation nor has she submitted to a second mental health
intake. She has not resolved her outstanding warrants and she has not
participated in the medical appointments of the children and disrupted the
appointments in which she did participate.
These requirements that she failed to complete are a substantial part of
the permanency plan. The failure to meet these requirements means that
[Mother] does not have a home for the children to return to and the children
have been in foster care for twenty months. Thus the Court finds by clear and
convincing evidence that [Mother] failed to substantially comply with the
permanency plans in this case.
Upon careful review, we determine that a preponderance of the evidence supports
these findings. It was undisputed that Mother completed the required parenting assessment
and parenting classes. Her initial permanency plan and each subsequent plan also required,
however, that she demonstrate learned parenting skills. Testimony supported the trial court’s
finding that she had not. Ms. Buckner testified that Mother failed to complete
recommendations made in the parenting assessment that she undergo mental health treatment,
learn age-appropriate child behaviors, and learn the difference between regular and special
needs age-appropriate child behaviors. When questioned regarding how she would expect
Mother to demonstrate learned parenting skills, Ms. Buckner, who had observed most of the
visits between Mother and the Children, explained:
To be appropriate with the children during visits. She has called Gabe
stupid, called him a dummy, not taken them to the bathroom so that they did
urinate on themselves and things like that. She’s not – when they become
upset, she’s not able to comfort them, she’s not able to provide any structure
or discipline during the visits.
The Children’s foster mother testified that she had observed many visitation sessions
between Mother and the Children, usually from a side observation room. She stated that she
had heard Mother call Gabriel a “heathen” and a “moron.” According to the foster mother,
Gabriel was particularly upset after one visit and complained to both her and his teacher that
Mother had called him “stupid.” The foster mother noted that Mother has more trouble
relating to and disciplining Gabriel than the other two children.
Jenna Rejman, a family intervention specialist who supervised Mother’s therapeutic
visitation with the Children from January or February 2012 through August 2012, testified
that she worked with Mother on improving parenting skills during visitation sessions. Ms.
Rejman opined that Mother was resistant to her parenting instruction and often appeared to
be “stuck” on how she remembered being told to address parenting issues in the past rather
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than being open to new information. According to Ms. Rejman, Mother often wanted to
discuss diagnoses she believed the Children had been given in the past rather than address
the Children’s actual behavior during the visitation. A CASA volunteer who also had
observed visitation between Mother and the Children testified that she had seen Mother
ignore Gabriel when he was crying until a DCS caseworker eventually intervened to distract
and calm the child. Mother testified that she felt she was always being corrected in her
parenting during visitation. She believed that ignoring undesirable behavior was the best
way to manage such behavior and that she did not expect more from the Children “than what
they can do.” She denied ever calling any of the Children derogatory names.
The first permanency plan also required Mother to complete a psychological
evaluation and follow the resultant recommendations. It is undisputed that Mother completed
a psychological evaluation at Good Samaritan Center in Vincennes, Indiana, in July 2011.
Good Samaritan’s evaluation raised concerns about Mother’s former juvenile diagnosis of
borderline personality disorder and recommended that Mother seek further mental health
treatment. Mother did not seek further treatment in Indiana. When Mother returned to
Tennessee and reported to DCS that she did not agree with the results of her evaluation at
Good Samaritan, DCS consented to have Mother undergo a new psychological evaluation
in Tennessee, with such evaluation becoming a requirement of the second permanency plan.
Mother completed a psychological evaluation conducted by Dr. James F. Murray,
licensed clinical psychologist, whose deposition testimony was admitted at trial. Dr. Murray
concluded in his evaluation that “the record offers very strong support for a present diagnosis
of severe personality disorder involving aspects of borderline and antisocial personality
disorders.” Dr. Murray stressed in testimony that his role was to evaluate Mother’s mental
status rather than treat Mother. Mother was resistant to the evaluation process and refused
to undergo a mental health assessment intake for treatment. She testified that she knew from
Indiana family services’ involvement with her family that she had been a victim of abuse as
a child and that she did not want to undergo therapy that would make her relive negative
memories she had forgotten.
The requirement that Mother resolve her criminal warrants outstanding in Indiana was
included in the second and third permanency plans. At trial, DCS presented certified
warrants from the Superior Court of Knox County, Indiana, issued against Mother for failure
to appear on charges of check deception and cruelty to an animal. According to the case
history on the warrants, the original summonses were issued and served on Mother in April
2009. The warrants for failure to appear were served on Mother on July 30, 2011, after she
had returned to Indiana. The case history further reflects that Mother entered an appearance
by video on August 3, 2011, pleading not guilty and requesting trial. Mother’s trial on these
charges was set for December 5, 2011, by which time she was again in Tennessee. The Knox
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County, Indiana court subsequently issued warrants for Mother’s failure to appear on
December 5, 2011. DCS obtained certified copies of the active warrants in September 2012.
Ms. Buckner testified that she was informed by the Knox County, Indiana District Attorney’s
Office that Indiana did not extradite on the charges facing Mother but that the warrants were
still active. Mother testified at trial concerning this matter that she was the victim of identify
theft in Indiana in 2009 and that she believed the person who stole her identity was
responsible for the criminal charges against her.
As for Mother’s participation in the Children’s medical appointments, Ms. Buckner
testified that Mother missed several appointments and was so disruptive during the
appointments she attended that medical providers often had to request that she stop being
disruptive. Ms. Buckner explained that she was present at Gracie’s appointment with an
ophthalmologist in November 2011 when Mother entered late while Gracie was sitting on
the foster mother’s lap and being examined. According to Ms. Buckner, Mother insisted on
holding Gracie and kept talking to her and distracting her during the examination. Mother
then told the doctor that Gracie needed a retina transplant. The ophthalmologist attempted
to explain that there is no such procedure as a retina transplant, and Mother became “very
angry.”
Ms. Buckner and the foster mother testified that Zachary was diagnosed with bilateral
ear infections immediately after being taken into protective custody. He also had a “tongue
tie” that interfered with his developing speech. According to both witnesses, when an ear,
nose, and throat specialist recommended in August or September 2011 that Zachary have
tubes placed in his ears and the tongue tie clipped, Mother refused to give permission, stating
that previous doctors had told her Zachary did not need surgery. DCS petitioned for the trial
court to authorize the procedure, and by the court’s order entered November 4, 2011, the
court authorized the procedure and noted that Mother had agreed to it. Ms. Buckner testified
that Zachary’s eardrum ruptured approximately two weeks before he had the ear surgery.
Zachary’s tongue tie was also clipped during the same procedure, which occurred when he
was sixteen months old.
Mother testified she missed Gracie’s first appointment arranged by DCS because she
could not secure the time off from her employment at CVG. She acknowledged that during
Gracie’s November 2011 appointment with the ophthalmologist, she raised the diagnosis she
had been given by Gracie’s doctor in Florida. She stated that the ophthalmologist explained
there was no retinal transplant available, and she was not aware of any disruption to the
appointment. According to Mother, she attended Gabriel’s dental surgery but was not
informed of his pre-surgical dental appointments. Regarding Zachary’s surgery, Mother
explained that she had been told by a doctor in Florida that clipping the tongue tie might only
be a “cosmetic” option if the condition did not prove to interfere with the child’s speech.
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When DCS requested authorization for Zachary’s surgery, Mother inquired as to whether it
was necessary or cosmetic. She asserted that Zachary had not suffered from ear infections
before being removed into protective custody but that she had not been opposed to the
surgery to have tubes placed in his ears.
Regarding a parent’s substantial noncompliance with a permanency plan, as 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
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. & M.W.S., Jr., 140 S.W.3d 643, 656-57 (Tenn. Ct. App. 2004) (internal citations
omitted).
Although Mother argues that the requirement that she obtain a second mental health
evaluation in Tennessee was not reasonable, she otherwise concedes that her permanency
plan requirements were reasonable and related to the conditions that led to the removal of the
Children. Mother raises no issue regarding the trial court’s finding that DCS made
“extensive reasonable efforts” to assist her in complying with the permanency plans.
Mother’s contention that she substantially complied with the plans, as stated in her brief on
appeal, rests on her argument that she “attempted to do everything that DCS required” but
found it impossible to fully comply with the plan requirements because DCS kept “moving
the goal posts” by requiring her to address concerns regarding her mental condition and
participation in the Children’s medical treatment. We disagree.
Dr. Murray testified that his sessions with Mother served the purpose of providing a
psychological evaluation, not the mental health intake assessment Mother needed to begin
therapeutic counseling and treatment. Dr. Murray’s evaluation and testimony, as well as
testimony from multiple witnesses and Mother herself, whose testimony was often disjointed
and contradictory, demonstrated that the permanency plan requirement of a follow-up mental
health intake assessment was reasonable. As noted above, Mother’s mental condition was
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directly related to her ability to provide a suitable home. See In re M.F.O., 2009 WL
1456319 at *5.
Furthermore, Mother’s ability to appropriately participate in the Children’s medical
care was reasonably related to her ability to care for the Children. The evidence repeatedly
demonstrated that the Children’s medical history as offered by Mother was contradictory,
bizarre, and unsubstantiated, including, for example, her insistence that Zachary must be
watched during his “eighteen-month birthday” to be sure he did not turn into a “vegetable,”
regressing to a “newborn stage,” as she reported Gabriel had at that age. We stress again that
the trial court’s determinations regarding witness credibility are entitled to great weight on
appeal. See Jones, 92 S.W.3d at 838. The trial court did not err in terminating Mother’s
parental rights based upon the statutory ground of substantial noncompliance with the
statements of responsibilities in the permanency plans.
VI. Persistence of Conditions Leading to Children’s Removal
The trial court also found that Mother’s parental rights should be terminated based
upon the statutory ground of persistence of the conditions leading to the Children’s removal
into protective custody. As with the ground of failure to provide a suitable home, Mother
does not address directly in her brief on appeal the trial court’s finding regarding persistence
of conditions. She does, however, raise the issue of the trial court’s ruling as to all grounds
for termination and argues that she substantially complied with DCS’s requirements that she
correct issues of abandonment and lack of housing, two conditions that led to the Children’s
removal. Despite Mother’s failure to address this ground directly in her argument, we will
nonetheless address it in our analysis due to the “importance of permanently placing children
and the just, speedy resolution of cases.” See 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,
therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
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(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:
In this case, the Court finds by clear and convincing evidence that it has
been twenty months since the children were removed from [Mother]; that DCS
removed the children from [Mother] due to her homelessness and her inability
to care for the children; that the conditions that led to the children’s removal
still persist in that the mother has not maintained a stable housing situation;
that there is little chance that those conditions will be remedied at an early date
[so] that the children can be returned to [Mother’s] home; and that the
continuation of the parent/child relationship greatly diminishes the children’s
chances of early integration into a safe, stable and permanent home. Evidence
and testimony show that [Mother] has resided in multiple homes since the time
that [the] children were removed; that she is now residing with her paramour
who has, by his own admission and [Mother’s], failed to comply with the
Department’s request that he submit to an alcohol and drug assessment; and
that evidence and testimony have shown that [Mother] has been unable to
demonstrate during visitations that she would be able to care for the children.
Further, this Court finds that another condition exists which would in all
reasonable probability cause the children to be subjected to further abuse or
neglect in that [Mother] has not addressed her mental health issues. Her
mental health issues existed at the time of the removal and they still exist.
Thus, the Court finds that the State has met the burden of proof on this ground.
Upon a thorough review of the record, we conclude that these findings are supported
by a preponderance of the evidence. The Children were removed for a period of more than
six months, and the predominant conditions leading to removal, namely Mother’s
homelessness, inability to care for the Children, and problematic mental state, still persist.
There is little likelihood that these conditions will be remedied in the near future. The
evidence at trial demonstrated that Mother had failed to establish a suitable home for the
Children, failed to demonstrate that she could properly care for the Children, and failed to
address her own mental health issues. See, e.g., In re M.J.B. & M.W.S., 140 S.W.3d at 658
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(concluding that the mother’s inability to provide and care for her children persisted in part
due to her own psychological difficulties).
Mother emphasizes that she was gainfully employed by the time of trial and had
obtained a physically adequate home. As noted previously, however, Mother, although still
legally married to Father, had established a home with a paramour who had failed to comply
with DCS’s requests for an alcohol and drug assessment or explain why he did not have
custody of his own child. The evidence also demonstrated that continuation of the parent-
child relationship would greatly diminish 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.
VII. Mental Impairment
The final statutory ground upon which the trial court terminated Mother’s parental
rights related to the finding that Mother’s mental condition was impaired to the point of
being unable to provide for the further care and supervision of the Children. Tennessee Code
Annotated § 36-1-113(g)(8) provides in pertinent part as an additional ground for termination
of parental rights:
(8)(A) The chancery and circuit courts shall have jurisdiction in
an adoption proceeding, and the chancery, circuit, and juvenile
courts shall have jurisdiction in a separate, independent
proceeding conducted prior to an adoption proceeding to
determine if the parent or guardian is mentally incompetent to
provide for the further care and supervision of the child, and to
terminate that parent’s or guardian’s rights to the child;
(B) The court may terminate the parental or guardianship rights
of that person if it determines on the basis of clear and
convincing evidence that:
(i) The parent or guardian of the child is incompetent to
adequately provide for the further care and supervision of the
child because the parent’s or guardian’s mental condition is
presently so impaired and is so likely to remain so that it is
unlikely that the parent or guardian will be able to assume or
resume the care of and responsibility for the child in the near
future; and
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(ii) That termination of parental or guardian rights is in the best
interest of the child;
(C) In the circumstances described under subdivisions (8)(A)
and (B), no willfulness in the failure of the parent or guardian to
establish the parent’s or guardian’s ability to care for the child
need be shown to establish that the parental or guardianship
rights should be terminated . . . .
See also State, Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338-39 (Tenn. 1990)
(holding that a parent’s mental disability may be a ground for termination of parental rights
when such termination is in the child’s best interest even when the mentally disabled parent’s
actions are not willful).
In its order terminating Father’s and Mother’s parental rights, the trial court
summarized its findings of fact and conclusions of law regarding mental incompetence as
follows:
In this case, the Court finds that there is clear and convincing evidence
that termination of [Mother’s] parental rights is proper on this ground in that
testimony and evidence have shown that [Mother’s] mental competence is
questionable at best. Dr. Murray’s testimony and evaluation show that
[Mother] is mentally impaired and that this condition is likely to continue.
Further, the evaluation and testimony show that [Mother’s] symptoms are
problematic for adequate parenting. The Court finds by clear and convincing
evidence that the State has met the burden of proof on this ground.
Upon careful and thorough review, we conclude that a preponderance of the evidence
also supports the trial court’s findings on this ground. In his psychological evaluation of
Mother submitted to the trial court, Dr. Murray summarized Mother’s mental condition as
follows:
[Mother’s] history identifies severe disturbance and abuse within her family
of origin and possibly in subsequent situations. She has clearly lived a highly
unstable and chaotic life from childhood through adulthood. It appears very
likely she has become psychiatric-treatment and social-service “savy” [sic]
such that she has learned how to talk about, manipulate, or exploit these
systems. Her own reports of past behavior during childhood and adolescence
is highly consistent with a conduct disorder diagnosis, as well as other severe
psychiatric disorders. Similarly, the record offers very strong support for a
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present diagnosis of severe personality disorder involving aspects of borderline
and antisocial personality disorders. Her evasiveness and other features of her
failure to forthrightly participate in the present evaluation (as well as another
recent evaluation) render confident inclusion or exclusion of Axis I or Axis II
diagnoses problematic. However, her characteristic features of failure to
conform to social norms, deceitfulness, impulsivity or poor planning,
irritability or aggressiveness, disregard for others or irresponsibility, and a
willingness to exploit or manipulate others are obviously problematic
behavioral or personality features with regard to a capacity for adequate
parenting. Other symptoms involving depression and anxiety are also likely
to be problematic for her across a wide range of important areas of adaptive
functioning, including parental functioning.
In addition, testimony from DCS personnel included several examples of bizarre
behavior exhibited by Mother while the Children were in protective custody. Much of this
behavior directly affected the Children, for example, telling the Children to remove all their
clothing while they ate dinner during one visit and declaring that Gracie was having seizures
when the child showed no signs of physical distress and had no documented history of
seizures. As noted previously, Mother was dismissive of the results of her psychological
evaluation and refused to undergo additional mental health assessment and counseling.
In support of her argument that the trial court erred in finding clear and convincing
evidence of mental impairment, Mother relies on this Court’s decision in In re Christopher
S., No. E2012-02349-COA-R3-PT, 2013 WL 5436673 at *17 (Tenn. Ct. App. Sept. 27,
2013), in which we reversed the trial court’s finding that the parents were mentally
incompetent to parent because the evidence demonstrated that the intellectually disabled
parents “could learn to competently parent with intensive, long-term intervention.” Mother
notes our citation in In re Christopher to the earlier case of State, Dep’t of Children’s Servs.
v. Whaley, No. 2001-00765-COA-R3-CV, 2002 WL 1116430 at *14 (Tenn. Ct. App. May
30, 2002), in which this Court reversed the trial court’s finding of mental incompetence when
a mildly intellectually disabled mother “had successfully obtained vocational training,
maintained employment, utilized public transportation, maintained a household, and secured
a competent support system.” See In re Christopher, 2013 WL 5436673 at *17 (citing
Whaley, 2002 WL 1116430 at *14).
We find both In re Christopher and Whaley to be factually distinguishable from the
case at bar. The trial court’s finding as to Mother’s mental state focuses not on intellectual
disability but on Mother’s psychological evaluation describing severe personality disorder
and aspects of borderline and anti-social personality disorders, including her often erratic and
contradictory behavior and self-reported history. The trial court specifically found that
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Mother’s symptoms are “problematic for adequate parenting” and unlikely to be resolved in
light of Mother’s dismissive attitude toward mental health treatment and her refusal to
undergo additional assessment and the treatment that would follow. See, e.g., State Dep’t
of Human Servs. v. Smith, 785 S.W.2d 336, 336-37 (Tenn. 1990) (affirming the trial court’s
termination of the parents’ parental rights upon the ground of the mother’s mental
impairment of schizophrenic disorder, paranoid type, together with the mother’s refusal to
take needed medication or undergo counseling and the father’s refusal to recognize the
seriousness of the mother’s mental condition). The trial court did not err in terminating
Mother’s parental rights on this statutory ground.
VIII. Best Interest of Children
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) (2010) 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
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 substances3 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:
In this case, the Court finds that there is clear and convincing evidence
that termination of [Mother’s] parental rights is in the best interest of the
children in that, in addition to all the reasons set forth in the Findings of Fact
3
Effective July 2012, after the filing of the petition in the instant case, The Tennessee General
Assembly amended Tennessee Code Annotated § 36-1-113(i)(7) to substitute “alcohol, controlled substances
or controlled substance analogues” in place of “alcohol and controlled substances.” See 2012 Pub. Acts ch.
848, § 8.
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above, [Mother] has not made changes in her conduct or circumstances that
would make it safe for the children to go home.
[Mother] has not made lasting changes in her lifestyle or conduct after
reasonable efforts, so that lasting change does not appear possible. Despite all
of the help that was offered to her, [Mother] has been unable to demonstrate
that she can appropriately parent the children. If she cannot succeed under
those circumstances, it appears that she cannot maintain a lifestyle of conduct
for a lasting period of time that would make it safe for the children to return
to her.
[Mother] does not have a meaningful relationship with the children.
Testimony and evidence has shown that the children do not appear to have a
bond with the mother and view her as more of someone they visit with than as
a parent. There is no question to the Court that [Mother] loves her children.
However, she has uprooted them and moved them about in a cavalier fashion.
She has demonstrated to the Court that the Court cannot trust her judgment
when it comes to the medical needs of the children. The main concern to the
Court is that she actually thought her actions were appropriate but in the
Court’s mind they were completely inappropriate. [Mother] leads a bizarre
lifestyle of repeated relationships with men that she does not really know
which the Court does not feel is in the children’s best interest.
By all accounts, the children are thriving in their current environment
and they have developed a strong bond with their foster parents who wish to
adopt them. Thus, the Court finds that the termination of [Mother’s] parental
rights is in the best interest of the children for the reasons set forth above.
The trial court therefore concluded that it was in the Children’s best interest to terminate
Mother’s parental rights. We agree.
Mother contends that the trial court erred by reaching the best interest analysis
because the State failed to prove the statutory grounds for termination of her parental rights
by clear and convincing evidence. Mother offers no further argument to refute the trial
court’s finding that termination of her parental rights was in the Children’s best interest.
Although Mother has essentially conceded this issue on appeal through her lack of supportive
argument, DCS properly has argued the issue. Having found a ground for termination of
parental rights, a trial court is required to consider, as we must on review, whether
termination of those rights is in the Children’s best interest. See Tenn. Code Ann. § 36-1-
113(i); In re Audrey S., 182 S.W.3d at 877.
In analyzing the factors contained in Tennessee Code Annotated § 36-1-113(i), the
trial court emphasized six factors as weighing heavily against maintaining Mother’s parental
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rights: (1) failure to make an adjustment of circumstance, conduct, or conditions as to make
it safe and in the Children’s best interest to be in Mother’s home; (2) failure to effect a
lasting adjustment after reasonable efforts by DCS for such a period of time that adjustment
does not reasonably appear possible; (4) lack of meaningful relationship with the Children;
(5) negative effect a change of caretakers and physical environment would be likely to have
on the Children’s emotional, psychological, and medical condition; and (8) detrimental effect
of Mother’s mental status on the Children and on Mother’s ability to provide safe and stable
care and supervision for the Children. We note also that it is undisputed that Mother paid no
child support while the Children were in protective custody. See Tenn. Code Ann. § 36-1-
113(i)(9); White, 171 S.W.3d at 194 (taking notice of the appellate record in affirming the
trial court’s best interest finding).
The trial court noted Mother’s love for the Children and did not discount the statutory
factor of her regular visitation with them once she returned to Tennessee. See Tenn. Code
Ann. § 36-1-113(i)(3). As the trial court explained, however, testimony from those who
observed Mother’s visitation with the Children, including Ms. Buckner, Ms. Rejman, and the
foster mother, demonstrated that the Children did not display signs of a meaningful bond
with Mother beyond familiarity with her as someone they visited regularly. Gabriel, in
particular, showed signed signs of negative effects from the visitation and from being
characterized by Mother has having greater developmental problems than he actually
suffered.
The foster mother, who had cared for Zachary since the Children were taken into
protective custody and for Gabriel and Gracie since late July 2011, stated that all three
Children had made great strides in their developmental progress while in protective custody.
She and her husband intended to adopt the Children if they become available for adoption.
According to the foster mother and Ms. Buckner, several problems Mother believed the
Children suffered were resolved while they were in foster care. Contrary to Mother’s
original assertion to DCS, Gabriel has been found not to suffer from autism. In addition,
Gabriel’s kindergarten teacher from the 2011 to 2012 academic year and his current first
grade teacher testified that Gabriel’s previously garbled speech had improved dramatically
and that he had become an excellent reader. All three Children were receiving speech and
occupational therapy, the two oldest through school services as well as in-home services.
Ms. Buckner noted that contrary to Mother’s original account to DCS, Gracie was found not
to suffer from any kind of seizure disorder. Gracie was severely cross-eyed at the time of
removal into protective custody and would not talk or smile. Gracie has since undergone
corrective eye surgery, and the foster mother described her as a previously shy child who now
laughs, hugs, and smiles.
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Testimony from Ms. Buckner, Ms. Rejman, and the foster mother demonstrated that
by the time of trial, the Children showed a bond among themselves, particularly between the
older children and Zachary, that was not apparent at the time of removal from protective
custody. Zachary suffered from a “tongue tie” and ear infections at the time of removal, and
these problems were successfully treated. From a thorough examination of the record before
us, we conclude that there is clear and convincing evidence that termination of Mother’s
parental rights was in the Children’s best interest.
IX. Conclusion
The judgment of the trial court terminating the parental rights of Mother is affirmed.
Costs on appeal are taxed to the appellant, Donna B. 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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