In Re Zian L.

12/28/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 1, 2021
IN RE ZIAN L.
Appeal from the Juvenile Court for White County
No. 4930/JV-1801 Sammie E. Benningfield, Jr., Judge
No. M2021-00879-COA-R3-PT
This appeal concerns the termination of a mother’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for White
County (“the Juvenile Court”) seeking to terminate the parental rights of Hope H.
(“Mother”) to her minor son Zian L. (“the Child”). After a hearing, the Juvenile Court
entered an order terminating Mother’s parental rights on three grounds and finding that
termination of Mother’s parental rights is in the Child’s best interest, all by the standard of
clear and convincing evidence. Mother appeals, arguing that the Juvenile Court erred in
its best interest determination. We affirm the judgment of the Juvenile Court in its entirety.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
J. Patrick Hayes, Cookeville, Tennessee, for the appellant, Hope H.
Herbert H. Slatery, III, Attorney General and Reporter; and Jordan K. Crews, Senior
Assistant Attorney General, for the appellee, the Tennessee Department of Children’s
Services.
OPINION
Background
The Child was born to Mother in December 2013.1 On January 31, 2020, DCS
received a report alleging that Mother had exposed the Child to drugs. Mother also was
arrested for harboring a fugitive. While in jail, Mother reported to DCS that she used
methamphetamine two or three days before. Mother took a drug screen, which was positive
for methamphetamine, amphetamine, and ecstasy. On February 4, 2020, the Child entered
state custody pursuant to an order entered by the Juvenile Court upon a petition of
dependency and neglect. On February 10, 2020, the Child took a hair-follicle screen which
was positive for methamphetamine.
In February 2020, a permanency plan was developed for Mother. Mother had a
number of responsibilities under the permanency plan, to wit: refrain from associating with
persons suspected or known to manufacture, sell, or use drugs; not allow any such people
in her home or around the Child; allow random pill counts; submit to an alcohol and drug
assessment and follow recommendations; sign releases of information for DCS so it could
track her progress; comply with random drug screening; complete a psychological
evaluation and follow recommendations; use age-appropriate parenting techniques during
visitation and demonstrate her ability to provide for the Child’s basic needs; complete a
clinical parenting assessment and follow recommendations; maintain a safe home; provide
DCS with proof of residence; allow DCS to make random, unannounced home visits;
resolve criminal charges; refrain from incurring new criminal charges; visit the Child for
four hours per month; notify DCS 24 hours in advance if she were unable to attend a visit;
and make visits with the Child meaningful. Mother’s responsibilities under the
permanency plans remained the same up through the filing of DCS’s petition. On March
17, 2020, Mother signed the Criteria and Procedures for Termination of Parental Rights.
In June 2020, the Juvenile Court entered its adjudicatory and final dispositional
order in which it adjudicated the Child dependent and neglected. In its order, the Juvenile
Court found that the Child was a victim of severe child abuse perpetrated by Mother as
defined at Tenn. Code Ann. § 37-1-102(b)(27). The severe child abuse finding was based
upon the Child having tested positive for methamphetamine and Mother’s admissions
regarding her use of methamphetamine days before the Child’s removal. Mother did not
appeal this order.
1
B.L. was named on the Child’s birth certificate as the Child’s father. B.L. has surrendered his parental
rights to the Child. M.H., the Child’s alleged father, signed a Waiver of Interest and Notice regarding the
Child in August 2020. This appeal concerns only Mother’s parental rights to the Child.
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In August 2020, DCS filed a motion seeking to be relieved of reasonable efforts as
to Mother. DCS cited, among other things, Mother’s failure to participate in any services
despite DCS’s efforts. DCS also cited the fact that the Child had been adjudicated a victim
of severe child abuse. Mother did not contest DCS’s motion. On August 17, 2020, the
Juvenile Court entered an order granting DCS’s motion. Meanwhile, as the case unfolded,
Mother continued to incur criminal charges. On July 17, 2020, Mother pled guilty to
resisting arrest. She was sentenced to five months and 29 days of supervised probation.
On February 26, 2021, Mother’s probation was revoked for failing to report; incurring new
legal charges; and using illegal drugs. Mother was ordered to serve her five-month, 29-
day sentence in jail, with credit given for time served. Mother also pled guilty to possession
of more than 26 grams of methamphetamine for sale or delivery, a Class B felony, and was
sentenced to eight years of supervised probation.
On November 9, 2020, DCS filed a petition in the Juvenile Court seeking to
terminate Mother’s parental rights to the Child. DCS alleged against Mother the grounds
of abandonment by incarcerated parent for failure to support; abandonment by incarcerated
parent for failure to visit; abandonment by wanton disregard; abandonment by failure to
establish a suitable home; substantial noncompliance with the permanency plan; persistent
conditions; severe child abuse; and failure to manifest an ability and willingness to assume
custody. DCS alleged further that termination of Mother’s parental rights would be in the
Child’s best interest. Mother did not file an answer to DCS’s petition. DCS also filed a
motion asking the Juvenile Court to suspend Mother’s visitation with the Child. DCS
alleged that Mother had failed to participate in services; had tested positive for
methamphetamine on September 25; was facing criminal charges; had not maintained
regular visitation with the Child; and behaved inappropriately when she did visit. On
November 16, 2020, the Juvenile Court granted DCS’s motion and suspended Mother’s
visitation with the Child.
In June 2021, a hearing was conducted before the Juvenile Court on DCS’s
termination petition. Mother did not appear at the hearing, although her appointed counsel
was present. First to testify was DCS family services worker Alicia Wright (“Wright”).
Wright first came into contact with the family after the Child entered state custody in
February 2020. Wright testified to her objective when working with the family: “My
primary objective was to restore [the Child] to his mother; provide services to the mother
to stabilize her lifestyle; help her to gain sobriety; help her to gain employment; help her
to gain proper housing; and allow her mental health to be treated properly.” Ultimately,
when these efforts did not bear fruit, Wright asked DCS to file a petition to terminate
Mother’s parental rights. DCS initiated the underlying dependency and neglect case when
it “received a referral, alleging drug abuse by [Mother] in the family home, present, when
[the Child] was there. There were also some criminal charges at that time.” According to
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Wright, the dependency and neglect petition was necessitated by parental substance abuse;
inappropriate living conditions; and Mother’s incarceration. Mother had custody of the
Child at the time of his removal. The Child has been in DCS custody continuously since
his removal. Mother never was awarded unsupervised visitation. All told, DCS developed
four permanency plans for Mother. In particular, Wright testified to three ratified
permanency plans dated February 25, 2020; July 1, 2020; and December 16, 2020,
respectively. The goal of the initial plan was return to parent and adoption. The goal of
the second plan also was return to parent and adoption. In the third plan, the goal was
adoption only. Wright testified that DCS offered “substantial assistance” to Mother to help
her complete the permanency plans, although ultimately to no avail. Wright stated:
Well, we had the permanency plan meeting. She did not attend the first one;
however, we did go meet with her, explain the outlines of the responsibilities
of the plan, and we gave her the responsibilities sheet that outlines exactly
what she should do. We also set up those appointments for her, both mental
health treatment, substance abuse treatment, parenting assistance. We also
referred her to the Tennessee Career Center, to gain employment. We did a
lot of things with her.
There’s been a lot of conversations, phone conversations that included
just her, and then also her and her attorney to explain the, what we were
asking her to do to remedy the circumstances that brought [the Child] into
custody.
Wright testified that Mother did not substantially comply with the permanency
plans. Wright stated: “[Mother] has a lack of concern for her child. She had no desire to
complete any of the action steps on the plan, despite being offered substantial assistance to
do so.” Wright testified that Mother failed to complete any of the tasks outlined in the
permanency plans. In Wright’s opinion, Mother would not complete her permanency plan
in the near future:
That’s my opinion, based on the fact that we have offered here, again,
substantial assistance, both transportation; we’ve made phone calls with her;
we’ve set up appointments for her; we’ve provided phone numbers, and all
the things she needed, as well as just support for her and encouragement.
And she’s not taken advantage of any of those things, so I do not see it
changing in the near future.
Continuing her testimony, Wright stated that the Child was the victim of severe
child abuse perpetrated by Mother as reflected in the Juvenile Court’s adjudicatory
dispositional hearing order. That order was not appealed. When asked if Mother had failed
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to manifest an ability to assume legal and physical custody of the Child, Wright answered
in the affirmative:
[Mother], despite, again being referred to, for instance, the Tennessee Career
Center, we also referred her to the Department of Human Services for food
stamps assistance, to apply for insurance and things like that to stabilize her
financially. She did not follow through with any of those and did not gain
employment to be able to provide for [the Child].
Wright testified further that Mother failed to manifest a willingness to assume
custody of the Child, stating:
Again, she’s, she’s just not willing to participate in any of the services to
stabilize her life, and that’s a willingness on her part. There was no barrier
that was ever identified by [Mother] or any member of the team that we could
have assisted her with. And so, in the end, it was [Mother’s] unwillingness
to complete any of the action steps, including gaining sobriety, stabilizing
her mental health, gaining employment, or providing for [the Child] in any
way, emotionally, physically or financially.
Wright testified that Mother, who was absent from the hearing, had full knowledge
of the hearing. In Wright’s view, placing the Child with Mother at this time or in the near
future would “pose a substantial risk to [the Child].” None of the conditions that required
the Child’s removal in the first place had been resolved. Regarding any prospect that
Mother could earn money, Wright testified: “Early in the case, [Mother] reported that she
allows her land to be rented for cattle, but then provided no receipts or payments for that.”
Mother paid no monetary child support to the Child’s foster parents. Mother had not given
the foster parents any non-monetary support such as food, clothes, diapers, etc., either.
Wright testified: “No, [Mother] refused to engage at all with the foster parents, despite the
Department’s attempt at forming that relationship between the two parties.” According to
Wright, Mother was able-bodied and capable of working, as she had “never provided
otherwise….” Wright testified that Mother “never stated otherwise that she was not able
to work or provide any type of financial assistance.” DCS had gone over the Criteria and
Procedures for Termination of Parental Rights with Mother. Wright filed an affidavit of
reasonable efforts in this case and asked the Juvenile Court to adopt the affidavit as her
testimony in regard to DCS’s reasonable efforts.
Turning to the matter of the Child’s best interest, Wright testified that Mother had
not made an adjustment of circumstances so as to make it safe for the Child to be in
Mother’s home:
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[Mother] continues to participate in a criminal lifestyle, including
methamphetamine use and other criminal acts. She also still lives in the
removal home and none of the situations in the removal home have been
remedied. [Mother] also continues, again, to be incarcerated. She’s been
incarcerated several times throughout the life of the case in different
counties. Even when [Mother] was visiting, she, she doesn’t have patience
with [the Child]. She’s very short on her, I guess, her anger level with him.
And then, she also would always end the visits early, despite the fact that the
Department was giving her a substantial amount of visits for the month. She
would always end them early.
Mother did not attend all of the Child’s medical appointments. The last appointment
Mother attended was for the Child’s dental surgery; Mother “became angry and frustrated
because she was asked to wear a mask during the pandemic, by the provider, and felt she
was being disrespected. And so, never attended another visit after that point.” As
explained by Wright, keeping up with medical and dental appointments was especially
crucial for the Child given his history:
When [the Child] entered custody, he had, his front part of his teeth were
rotted almost to the gum, so they had to be surgically removed. And he also
had a broken thumb that the pediatrician felt had been broken for several
weeks with no medical attention, that was also infected that required care.
So, [the Child] had to have substantial medical appointments in the
beginning, both dental and then also to treat his finger, including to see an
orthopedist.
Mother reported that she had not taken the Child—who entered state custody at age
six—to a physician since he was two or three months old. In addition, the Child had never
been to the dentist. In Wright’s estimation, Mother was in substantially the same position
on the day of the hearing that she was when the Child was removed into state custody.
With respect to visitation, Wright testified that from February through May of the
previous year, Mother visited the Child just a few minutes per visit. When pandemic
restrictions were lifted in August, in-person visits resumed. Mother cancelled two visits
and tended to cut visits short when she did make them. Wright described Mother’s
behavior during both her video and in-person visits:
[Mother’s] conduct during visitation, through the video visits, she would
become very frustrated with [the Child]. She would try to force him to
engage with her, by demanding that he tell her about his day. But it wasn’t
in a motherly-type way. When she didn’t receive the answer that she desired,
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she would then say, [w]ell, you can just go play. And then would end the
call or end the video visit.
Same with the in-person visits. Our very first one, she engaged for
about an hour. The foster mom had came to check on [the Child], just to
make sure he was doing okay, and at that point, [Mother] wanted to end the
visit. But I asked her to continue, since they hadn’t had in-person contact for
a while. She did then end the visit still 17 minutes early. Her contact, she’s
able to manage [the Child] for very few minutes during the visits before
becoming overly frustrated with him and asking to end the visit with him.
Asked if the Child had a meaningful relationship with Mother, Wright answered
bluntly: “[The Child] is terrified of his mother…[s]o, no, there’s no meaningful
relationship.” On Mother’s last visit, the Child had a “meltdown” while clinging fearfully
to his pet cat and screaming that he did not want to see Mother. At that juncture, DCS
asked for the visits to stop. Wright testified that Mother had sacrificed reunification with
the Child for methamphetamine. In Wright’s view, a change of caretaker would have a
negative effect on the Child’s well-being:
When [the Child] entered custody, he was not potty trained, and again, we’ve
touched on the medical neglect, but again, he was, his entire frontal teeth
were rotted out. Again, he was not potty trained. He would hold his bowel
movements out of fear. He was not able to verbalize, like a child his age
would. Developmentally, he was behind. The foster parents have worked
diligently to potty train the six year old that came to their home, have enrolled
him in school where he’s excelled. He is emotionally bonded with this
family, and all of his needs are met there. And he’s an integral part of their
family.
Wright stated that Mother’s home was unhealthy and unsafe for the Child. In
addition, there was ongoing criminal activity in Mother’s home. On a home visit, the
Child’s room looked “like a construction site.” The entire house, except for the living
room, was in “disarray.” Wright testified: “[Mother] has housing. She lives with her
mother. But her mother is mentally unstable, as is [Mother]. And the physical living
condition of the home was not appropriate for a child.” DCS had a negative history with
Pamela V., the Child’s maternal grandmother. DCS had explored placing the Child with
Pamela V. but determined that she was not a feasible option. Wright testified further that
Mother reported having mental health needs, but Mother refused any services aimed at
addressing those needs.
When the Child initially entered state custody, he had a heart arrhythmia. Wright
stated, however, that “[s]ince he’s been stable in the foster home and now is no longer
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exposed to drugs, there’s no more concern with that.” Asked if Mother had contributed
anything to the Child’s physical care, Wright stated: “She’s not. She’s not provided
anything other than when she came to visits a couple of times. She did bring a little
Lunchable.” Regarding the Child’s current home life, Wright stated he had been with his
foster family since he first entered state custody in February 2020. The foster parents have
a biological child and two adopted children. Wright testified that the foster parents are
ready, willing, and able to adopt the Child. Wright stated:
[S]o all of the children are around the same age, with [the Child] being the
oldest, and the youngest is about two years old. And they all play just like
natural biological siblings. I know, I observed them just a couple of weeks
ago at the park and they were all playing in the sand box together, and sliding
on the slides. So, [the Child] is an integral part; he’s fully acclimated into
this family, and even within the sibling group.
The foster parents also allowed the Child to maintain a relationship with his four older
biological siblings.
Brittany S. (“Foster Mother”), the Child’s foster mother, was the next and final
witness. Foster Mother is a special education teacher. Her husband is a registered nurse
working toward becoming a nurse practitioner. Foster Mother testified to the quality of
interaction between the Child and the other children in their home: “Actually, I think [the
Child] was exactly what our biological son needed. They just connected immediately, as
he connected with us, too. I mean, I’m going to cry, thinking of it. We just love him to
death. And he is learning to be an awesome big brother. He is really great with them.”
Foster Mother ensured that the Child went to all of his medical and dental appointments,
and the Child’s medical and dental needs are all up-to-date. Foster Mother stated that she
is ready, willing, and able to adopt the Child were he to become available for adoption.
Asked in conclusion if there were anything else she wished to add, Foster Mother testified:
“Just that [the Child] has made significant progress. This kid came to us, as a six year old,
who wasn’t potty trained and had never been in school and couldn’t communicate. And
now, he’s making great grades, playing baseball, being a good big brother. I mean, he’s
awesome.”
In July 2021, the Juvenile Court entered its final judgment terminating Mother’s
parental rights to the Child. The Juvenile Court found that the following grounds were
proven by clear and convincing evidence: (1) substantial noncompliance with the
permanency plan; (2) severe child abuse; and (3) failure to manifest an ability and
willingness to assume custody.2 The Juvenile Court also found by clear and convincing
2
At trial, DCS voluntarily dismissed the other grounds it had pled.
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evidence that termination of Mother’s parental rights is in the Child’s best interest. In its
final judgment, the Juvenile Court found, in pertinent part:
THE COURT’S RULING AS TO [MOTHER] ON THE GROUNDS
ALLEGED
Substantial Noncompliance
15. The Court finds by clear and convincing evidence that [Mother] has not
substantially complied with the provisions of the permanency plans in that
the Court ratified the permanency plans and found them to be reasonable,
necessary, and in the best interest of the child; that all of the permanency
plans clearly identify in writing the statements of responsibilities for
[Mother]; that the requirements in the permanency plans were all reasonably
related to remedying the conditions that necessitate foster care; that [Mother]
did not complete the requirements in the permanency plans; that there is little
likelihood that [Mother] will complete the plans in the near future; and that
[Mother] was advised of the Criteria and Procedure for Termination of
Parental Rights and understood the grounds for termination of parental rights.
16. Ms. Wright testified that four (4) permanency plans were developed in
[the] underlying dependency and neglect case.
17. Ms. Wright further testified that the first three (3) plans were ratified by
the Court and found to be reasonable, necessary, and in the best interest of
the child.
18. Regarding compliance, Ms. Wright testified that [Mother] did not
complete any of the requirements in the permanency plans. Thus, the Court
finds that [Mother] has failed to comply with the permanency plans in any
respect.
19. With respect to whether [Mother] knew what to do to be in compliance,
Ms. Wright testified that [Mother’s] requirements were clearly identified in
writing on the plans. Furthermore, Ms. Wright testified that the Department
had met with [Mother] and explained the outline of responsibilities to her.
Ms. Wright also testified that the Department provided [Mother] with a
“responsibilities sheet” of exactly what she was required to do. Moreover,
Ms. Wright testified that … a lot of conversations had taken place between
the Department and [Mother] and between [Mother] and her attorney to
explain [the] plans’ requirements. Thus, the proof before the Court is that
[Mother] knew what was required of her.
20. With respect to future compliance, Ms. Wright testified that [Mother] has
no desire to complete any of the action steps. Ms. Wright further testified
that [Mother] is not likely to complete the plans’ requirements in the near
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[future]. Ms. Wright based her testimony upon the fact that [Mother] had not
taken advantage of the substantial assistance offered by the Department.
Thus, the proof before the Court is that there is little likelihood of [Mother]
complying with the permanency plans in the near future.
21. The record reflects that [Mother] signed the acknowledgment of receipt
of the Criteria and Procedure for Termination of Parental Rights on March
17, 2020, and on September 15, 2020.
22. Therefore, pursuant to Tenn. Code Ann. § 36-1-113(g)(2), the Court finds
by clear and convincing evidence that [Mother] is in substantial
noncompliance with the permanency plans.
Severe Child Abuse
23. The Court finds by clear and convincing evidence that on June 15, 2020,
the Court found [the Child], the child who is the subject of this proceeding,
to be the victim of severe child abuse, as defined at Tenn. Code Ann. § 37-
1-102, perpetrated by [Mother], and that the Adjudicatory and Final
Dispositional Order filed on June 15, 2020, concerning said child is a Final
Order.
24. The record reflects that the action by [Mother] which constitutes severe
child abuse includes exposing the child [to] methamphetamine as evidenced
by the child’s hair follicle drug test and [Mother’s] admission of using the
substance within two (2) days prior to the removal.
25. Therefore, pursuant to Tenn. Code Ann. § 36-1-113(g)(4), the Court finds
by clear and convincing evidence that the parental rights of [Mother] should
be terminated.
Failure to Manifest a Willingness and Ability
26. The Court finds by clear and convincing evidence that [Mother] has failed
to manifest, by act or omission, a willingness and ability to personally
assume legal and physical custody or financial responsibility of the child and
that placing the child in the legal and physical custody of [Mother] would
pose a risk of substantial harm to the physical or psychological welfare of the
child.
27. Regarding [Mother’s] failure to manifest a willingness to assume
custody, Ms. Wright testified that [Mother] did not complete any of the
permanency tasks. Furthermore, Ms. Wright testified that no barrier was
identified which would have prevented [Mother] from completing the action
steps. Moreover, Ms. Wright testified that [Mother] is not willing to
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participate in services. Thus, the proof before the Court is that [Mother] has
failed to manifest a willingness to assume custody of the child.
28. With respect to [Mother’s] failure to manifest an ability to assume
custody, Ms. Wright testified that [Mother] did not follow through with any
of the services offered to reunify. Thus, the proof before the Court is that
[Mother] has failed to manifest an ability to assume custody of the children.
29. The Court finds that [Mother] did not appear in defense of her parental
rights and show any interest in the child demonstrating probably more greatly
her failure to manifest a willingness and ability to assume custody.
30. Concerning [Mother’s] failure to manifest a willingness and ability to
assume financial responsibility for the child, Ms. Wright testified that
[Mother] had not shown a sufficient means of income to support the child’s
basic needs. Ms. Wright further testified that [Mother] had refused to gain
employment throughout the underlying dependency and neglect case. Ms.
Wright testified that to her knowledge, [Mother] had not provided any non-
monetary support to the foster parents even though [Mother] was able-bodied
and capable of working and support the child. To that end, the record reflects
that [Mother] has not paid child support. The Court finds that [Mother] is
not financially capable of being responsible for the child, despite being
physically capable of doing so. Thus, the proof before the Court is that
[Mother] has failed to manifest a willingness and ability to assume financial
responsibility for the child.
31. Regarding a substantial risk of harm to the child, Ms. Wright testified
that none of the conditions that required the removal had been resolved and
that placing the child with [Mother] at this time or in the near future would
pose a substantial risk of harm. Thus, the proof before the Court is that
placing the child in the legal and/or physical custody of [Mother] would pose
a risk of substantial harm to the child.
32. Therefore, pursuant to Tenn. Code Ann. § 36-1-113(g)(14), the Court
finds by clear and convincing evidence that the parental rights of [Mother]
should be terminated.
THE COURT’S RULING AS TO [MOTHER] REGARDING THE
BEST INTEREST OF THE CHILD
33. The Court finds by clear and convincing evidence that it is in the best
interest of the child for the parental rights of [Mother] to be terminated.
34. Regarding the best interest of the child, the Court adopts the
comprehensive analysis of the Guardian ad Litem, Macey Gurley.
35. Pursuant to Tenn. Code Ann. § 36-1-113(i)(1), the Court finds that
[Mother] has a lengthy criminal history. [Mother] was recently released from
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incarceration due to methamphetamine charges. When [Mother] was
released, she returned to the same home that the child was removed from.
Criminal activity and substance abuse do not make the home safe and
appropriate. Little to nothing has been done on [Mother’s] end to remedy
the conditions. [Mother] has not even done the bare minimum, which is to
appear today. [Mother] has chosen her drugs of choice over custody of the
child. Thus, the Court finds that [Mother] has failed to make an adjustment
of circumstances, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home with her.
36. Pursuant to Tenn. Code Ann. § 36-1-113(i)(2), the Court finds that
despite the Department’s numerous efforts, [Mother] is at ground zero.
[Mother] has failed to complete any of the necessary steps on the permanency
plans. Every reasonable effort was made on behalf of the Department to
assist in that regard and to achieve the goals; however, [Mother] was not
willing to participate in services. [Mother] is in substantially in the same
position that she was in at the time of the removal. Every step of the way,
[Mother] fought or failed to complete something. Thus, the Court finds that
[Mother] has failed to effect a lasting adjustment after reasonable efforts for
such a duration of time that a lasting adjustment does not reasonably appear
possible.
37. Pursuant to Tenn. Code Ann. § 36-1-113(i)(3), the Court finds that
[Mother] participated in some video calls that were often met with frustration
and anger by [Mother]. When in-person visitation resumed, it was poor.
[Mother] did not engage with the child. [Mother] often became frustrated
and was either late to the visit or ended it early. Visitation ultimately had to
be suspended because of the effect on the child and exhibited behaviors.
Thus, the Court finds that [Mother] has failed to maintain regular visitation
or other contact with the child.
38. Pursuant to Tenn. Code Ann. § 36-1-113(i)(4), the Court finds that at the
last in-person visit that the child was so fearful of [Mother] that he had a
meltdown. Thus, the Court finds that a meaningful relationship has not been
established between the child and [Mother].
39. Pursuant to Tenn. Code Ann. § 36-1-113(i)(5), the Court finds that the
child’s condition when placed with prospective adoptive parents includes not
being potty trained at six-years-old, speech problems due to rotted teeth, and
severe medical issues. The prospective adoptive parents have addressed all
of that. The child is thriving at school, is potty trained, and the prospective
adoptive parents have worked at length to get the child at the level of learning
and development he needs to be. The child is deeply bonded not only with
the prospective adoptive parents, but also with the other children in their
home and acts like their big brother. Thus, the Court finds that a change of
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caretaker and physical environment is likely to have a negative effect on the
child’s emotional, psychological, and/or medical condition.
40. Pursuant to Tenn. Code Ann. § 36-1-113(i)(6), the Court finds that
[Mother] was recently released from jail, returned to the same home that [the]
child was removed from, and that the maternal grandmother, who lives in the
home, has mental health issues as does [Mother]. The home is in such poor
condition that the child was not only removed due to substance abuse, but
also for medical neglect as previously discussed. In that regard, the maternal
grandmother and [Mother] exhibited such neglect toward the child that it
warranted removal and continues to do so. Thus, the Court finds this factor
weighs in favor of terminating [Mother’s] parental rights.
41. Pursuant to Tenn. Code Ann. § 36-1-113(i)(7), the Court finds that
[Mother] was recently incarcerated due to methamphetamine. [Mother’s]
incarceration indicates that there is still criminal activity to some degree in
the home making it unsafe and inappropriate for the child to return to in a
safe and stable way. Thus, the Court finds that this factor weighs in favor of
terminating [Mother’s] parental rights.
42. Pursuant to Tenn. Code Ann. § 36-1-113(i)(8), the Court finds that
[Mother] failed not only to complete any type of substance abuse treatment,
but also failed to remedy her mental health issues. [Mother] has not appeared
today to argue that her mental and/or emotional status would be sufficient to
raise the child. The child is fearful of [Mother]. [Mother] became frustrated
by that and did not fully utilize what would be available to her, which was
establishing a relationship with the child. Thus, the Court finds that the
mental and/or emotional status of [Mother] would be detrimental to the child
and prevent her from providing safe and stable care and supervision.
43. Pursuant to Tenn. Code Ann. § 36-1-113(i)(9), the Court finds that
[Mother] failed to pay any level of child support. [Mother] is in arrears. The
only thing that [Mother] has provided to the child in foster care is a
Lunchable, which does not even rise to the level of token support. [Mother]
has done nothing to assist and support through the Child Support Guidelines.
[Mother] has not provided other support such as food, clothing, books, or
anything. Thus, the Court finds that [Mother] has failed to support the child.
44. The Court finds that the child is in an extremely good preadoptive home.
The prospective adoptive parents have met every need that the child has. The
child is prospering, doing well, and the prospective adoptive parents are to
be congratulated and appreciated for their efforts.
45. Therefore, the Court finds by clear and convincing evidence that it is in
the best interest of the child for the parental rights of [Mother] to be
terminated.
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Mother timely appealed to this Court.
Discussion
Although not stated exactly as such, Mother raises the following single issue on
appeal: whether the Juvenile Court erred in finding by clear and convincing evidence that
termination of Mother’s parental rights is in the Child’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clauses of the federal and state constitutions.3 Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388.
Termination of parental rights has the legal effect of reducing the parent to
the role of a complete stranger and of “severing forever all legal rights and
obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-
3
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
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113(l)(1); see also Santosky, 455 U.S. at 759, 102 S.Ct. 1388 (recognizing
that a decision terminating parental rights is “final and irrevocable”). In light
of the interests and consequences at stake, parents are constitutionally
entitled to “fundamentally fair procedures” in termination proceedings.
Santosky, 455 U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). “Clear and convincing evidence enables the fact-finder to
form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than not.
In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R.,
183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds4 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
4
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
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at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is separate
from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
Although several factors relevant to the best interests analysis are statutorily
enumerated,5 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n. 15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
5
Tenn. Code Ann. § 36-1-113(i).
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An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97. The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion
of law, which appellate courts review de novo with no presumption of
correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Mother does not challenge any of the grounds for termination of parental rights
found against her. The Tennessee Supreme Court, however, has instructed “that in an
appeal from an order terminating parental rights the Court of Appeals must review the trial
court’s findings as to each ground for termination and as to whether termination is in the
child’s best interests, regardless of whether the parent challenges these findings on appeal.”
In re Carrington H., 483 S.W.3d at 525-26 (footnote omitted). Therefore, we will review
each of the grounds found against Mother.
On November 9, 2020, when DCS filed its petition against Mother, the applicable
grounds for termination of parental rights were set forth by statute as follows:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and nonexclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
***
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(2) There has been substantial noncompliance by the parent or guardian with
the statement of responsibilities in a permanency plan pursuant to title 37,
chapter 2, part 4;
***
(4) The parent or guardian has been found to have committed severe child
abuse, as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against any child;
***
(14) A parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or financial
responsibility of the child, and placing the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child;
Tenn. Code Ann. § 36-1-113(g) (West March 6, 2020 to April 21, 2021).
We first address whether the Juvenile Court erred in finding the ground of
substantial noncompliance with the permanency plan. With respect to what constitutes
substantial noncompliance with a permanency plan, this Court has explained:
Not every failure to comply with a permanency plan will constitute
grounds for termination of parental rights. In re Abigail F.K., No. E2012-
00016-COA-R3-JV, 2012 WL 4038526, at *14 (Tenn. Ct. App. Sept. 14,
2012). As the statute clearly reflects, “noncompliance is not enough to
justify termination of parental rights; the noncompliance must be
substantial.” In re Valentine, 79 S.W.3d at 548. “Determining whether a
parent has substantially complied with a permanency plan involves more
than merely counting up the tasks in the plan to determine whether a certain
number have been completed[.]” In re Carrington H., 483 S.W.3d at 537.
“In the context of the requirements of a permanency plan, the real worth and
importance of noncompliance should be measured by both the degree of
noncompliance and the weight assigned to that requirement.” In re
Valentine, 79 S.W.3d at 548. “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 (Tenn. Ct. App. 2004).
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Although the terms have sometimes been used interchangeably, this
Court has recently clarified that the question is not whether the parent was in
“substantial compliance” with the permanency plan. In re Isaiah B., No.
E2017-01699-COA-R3-PT, 2018 WL 2113978, at *15 (Tenn. Ct. App. May
8, 2018). “Section 36-1-113(g)(2) does not require that a parent
‘substantially comply’ with a permanency plan.” Id. “Rather, the
appropriate standard is whether there has been ‘substantial noncompliance.’
” In re Jaylah W., 486 S.W.3d 537, 555 (Tenn. Ct. App. 2015) (emphasis
added); see also In re Valentine, 79 S.W.3d at 548 (“the noncompliance must
be substantial”).
We also recognize that when analyzing this ground, “[o]ur concern is
with the parent’s efforts to comply with the plan, not the achievement of the
plan’s desired outcomes.” In re Daniel B., Jr., No. E2019-01063-COA-R3-
PT, 2020 WL 3955703, at *5 (Tenn. Ct. App. July 10, 2020) (citing In re
B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *8 (Tenn. Ct.
App. Mar. 2, 2009)) (emphasis added). In other words, “ ‘outcome
achievement is not the measure of compliance.’ ” In re Mya V., No. M2016-
02401-COA-R3-PT, 2017 WL 3209181, at *6 (Tenn. Ct. App. July 28, 2017)
(quoting In re B.D., 2009 WL 528922, at *11).
In re Jaylan J., No. W2019-02025-COA-R3-PT, 2020 WL 7861378, at *14 (Tenn. Ct.
App. Dec. 22, 2020), no appl. perm. appeal filed.
The Juvenile Court found that the permanency plans ratified in this case were
reasonable, necessary, in the Child’s best interest, and contained requirements reasonably
related to the conditions necessitating foster care. The Juvenile Court found further,
however, that Mother “failed to comply with the permanency plans in any respect.”
(Emphasis added). Indeed, the evidence in the record on appeal reflects a less-than-
minimal effort on Mother’s part to try to fulfill any of her responsibilities under her
permanency plans, even with DCS’s substantial assistance. Despite knowing what she
needed to do in order to have a chance at reunification with the Child, Mother’s level of
noncompliance with her permanency plans was substantial. The evidence does not
preponderate against the Juvenile Court’s findings relative to this ground. We find, as did
the Juvenile Court, that the ground of substantial noncompliance with the permanency plan
was proven by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of severe
child abuse. We have previously determined that a prior finding by a juvenile court in
dependency and neglect proceedings can be res judicata in parental rights termination
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proceedings. See In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012). In those
cases, the doctrine of res judicata prevents the issue from being re-litigated in the
subsequent parental rights termination proceeding. Id. In June 2020, the Juvenile Court
entered its adjudicatory and final dispositional order in which it adjudicated the Child
dependent and neglected. In its order, the Juvenile Court found that the Child was a victim
of severe child abuse perpetrated by Mother as defined at Tenn. Code Ann. § 37-1-
102(b)(27). The severe child abuse finding was based upon the Child having tested positive
for methamphetamine and Mother’s admissions regarding her use of methamphetamine
days before the Child’s removal. The record contains no evidence that Mother ever
appealed the finding of severe child abuse. Mother did not challenge the finality or validity
of the order finding severe child abuse either in the proceedings below or on appeal. Res
judicata thus applies to this ground. In view of these facts, we find, as did the Juvenile
Court, that the ground of severe child abuse was proven by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of failure
to manifest an ability and willingness to assume custody. With respect to this ground, our
Supreme Court has explained that “[i]f a person seeking to terminate parental rights proves
by clear and convincing proof that a parent or guardian has failed to manifest either ability
or willingness, then the first prong of the statute is satisfied.” In re Neveah M., 614 S.W.3d
659, 677 (Tenn. 2020) (emphasis in original, citation omitted). The second prong of the
statute requires us to consider whether placing the child in the person’s legal and physical
custody would pose a risk of substantial harm to the physical or psychological welfare of
the child.
Regarding the first prong, the Juvenile Court found that Mother manifested neither
the ability nor the willingness to assume custody or financial responsibility of the Child.
The record bears out this factual finding. With respect to willingness, Mother has taken no
meaningful steps whatsoever to engage with social services. Mother’s visits with the Child
were marred by her inappropriate behavior. She also tended to end the visits early. With
respect to ability, Mother’s circumstances have not changed. The Child entered state
custody due to drug exposure in Mother’s custody, specifically methamphetamine. The
Child was found to be the victim of severe child abuse perpetrated by Mother. There is no
evidence Mother has rectified her drug problem. On the contrary, Mother has incurred
drug charges since the Child’s removal. In addition, there is no hint that Mother can
financially support the Child or provide the Child with suitable housing. The evidence
does not preponderate against the Juvenile Court’s finding that Mother has manifested
neither the willingness nor the ability to assume custody of the Child. Turning to the
second prong, the Juvenile Court found that, as none of the conditions that required the
removal had been resolved, placing the child in the legal and/or physical custody of Mother
would pose a risk of substantial harm to the Child. Given the Child’s condition upon
entering state custody and Mother’s failure to remedy the circumstances that led to the
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Child being neglected and severely abused in the first place, the risk of substantial harm to
the Child’s physical or psychological welfare were he to be returned to Mother’s custody
is clear. The evidence does not preponderate against the Juvenile Court’s findings as to
either prong of this ground. We find, as did the Juvenile Court, that the ground of failure
to manifest an ability and willingness to assume custody was proven by clear and
convincing evidence.
The final issue we address is whether the Juvenile Court erred in finding that
termination of Mother’s parental rights is in the Child’s best interest. When DCS filed its
petition on November 9, 2020, the best interest factors were set out by statute as follows:
(i) In determining whether termination of parental or guardianship rights is
in the best interest of the child pursuant to this part, the court shall consider,
but is not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
(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.
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Tenn. Code Ann. § 36-1-113(i) (West March 6, 2020 to April 21, 2021).
With regard to making a determination concerning a child’s best interest, the
Tennessee Supreme Court has instructed:
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at 861). “After making
the underlying factual findings, the trial court should then consider the
combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interest[s].”
Id. When considering these statutory factors, courts must remember that
“[t]he child’s best interests [are] viewed from the child’s, rather than the
parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. Indeed, “[a]
focus on the perspective of the child is the common theme” evident in all of
the statutory factors. Id. “[W]hen the best interests of the child and those of
the adults are in conflict, such conflict shall always be resolved to favor the
rights and the best interests of the child. . . .” Tenn. Code Ann. § 36-1-101(d)
(2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the
circumstances of a particular child and a particular parent, the consideration
of one factor may very well dictate the outcome of the analysis.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
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But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In her brief, Mother argues that she has a strong bond with the Child and it would
be detrimental to the Child to sever that bond. Mother argues further that her bouts of
incarceration during the custodial episode made it impossible for her to complete the steps
required by her permanency plans. Mother states she should be given more time to work
on her permanency plans. Respectfully, Mother’s arguments lack any support in the
record. Far from a strong bond, the record reflects that Mother and the Child have a fraught
relationship to the extent any relationship still exists at all. The Child is “terrified” by
Mother and even had a “meltdown” on her last visit. For her part, Mother frequently ended
visits early and tended to have visits of poor quality marked by her inappropriate behavior.
Sadly, none of these facts suggest a strong bond exists between Mother and the Child.
Regarding Mother’s assertion that she just needs more time to work on her
permanency plans, the record reflects that Mother never attempted to fulfill her
responsibilities in any sort of meaningful way in the first place. Mother fails to cite any
evidence in the record in support of her contention that her bouts of incarceration prevented
her from attempting to comply with any of the steps on her permanency plans or that, but
for her having been in jail for portions of the custodial episode, she would have made some
effort on the plans. Thus, it is pure speculation to suggest that Mother would act with any
more alacrity were she to be given more time. Mother’s argument also assumes she lacks
any influence or agency on whether she keeps incurring criminal charges and going to jail,
which renders her unavailable to parent or prepare to parent the Child. Mother is mistaken
as it is Mother’s actions that result in her incurring additional criminal charges and going
to jail. Meanwhile, the Child remains in the limbo of foster care awaiting permanency.
What is more, even if we found Mother to be correct about having a strong bond
with the Child and that she had a legitimate excuse for not doing anything required of her
under the permanency plans, which we do not, the great weight of the remaining best
interest factors still would favor termination of Mother’s parental rights. The Child entered
state custody on the basis of exposure to methamphetamine while in Mother’s custody.
Mother severely abused and neglected the Child. Consequently, the Child had special
medical and dental needs, needs which were and are being met by his foster family.
Regrettably, Mother’s circumstances have not improved over the course of the custodial
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episode. Among other things, Mother has been in and out of jail; she has acted
inappropriately on her visits with the Child; she has paid no child support; she has failed
to address her drug problem; and she has failed to remedy her mental health issues. There
simply is no indication that Mother will be in a position to safely parent the Child any time
soon. The Juvenile Court made detailed findings as to each of the statutory best interest
factors applicable to this case. The evidence does not preponderate against these detailed
factual findings. We find by clear and convincing evidence, as did the Juvenile Court, that
termination of Mother’s parental rights is in the Child’s best interest.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, Hope H., and her surety, if any.
D. MICHAEL SWINEY, CHIEF JUDGE
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