In Re H. S.

03/20/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 1, 2019
IN RE H.S.
Appeal from the Juvenile Court for Williamson County
No. 35799 Sharon Guffee, Judge
___________________________________
No. M2019-00808-COA-R3-PT
___________________________________
The Department of Children’s Services filed a petition to terminate the parental rights of
E.R. (mother) and T.S. (father) with respect to H.S. (the child). The trial court found
clear and convincing evidence to terminate mother and father’s parental rights on
multiple grounds. By the same quantum of proof, the court determined that termination
of mother and father’s parental rights is in the best interest of the child. Only mother
appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court in which CARMA DENNIS
MCGEE, J., joined. ANDY D. BENNETT, J., filed a separate opinion concurring in part and
dissenting with respect to Part IV.C of the majority opinion.
Jennifer L. Honeycutt, Franklin, Tennessee, for the appellant, E.R.
Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, Tennessee, for the appellee, Tennessee Department of Children’s
Services.
Karen Johnson, Brentwood, Tennessee, Guardian Ad Litem.
OPINION
I.
A bench trial took place on February 11, February 13, March 25, and April 17,
2019. The court heard testimony from mother, father, foster mother, Tamera Stamps (a
DCS family service worker), Katie Nabors (a DCS social services team leader), Amy
Finnegan (a court-appointed special advocate), and Khylee Harshman (a resource
coordinator for Omni Visions, which provided supervised visitation).
At the time of trial, mother and father had known one another for about eleven
years. They were romantically involved “for a while” but experienced several break-ups.
H.S. is the youngest of their four children.1 Last year, this Court affirmed the termination
of mother and father’s parental rights with respect to the three older children. In re Trey
S., No. M2018-01979-COA-R3-PT, 2019 WL 2539204 (Tenn. Ct. App., filed June 20,
2019).
In June 2016, before H.S. was born, DCS received a referral stating that the three
older children were exposed to drugs and suffering from various kinds of neglect. At the
time, mother and the three older children were living in a domestic violence shelter.
According to Ms. Finnegan, mother said that she and father “had a history of fighting”
and “that there were several black eyes.” Mother said that she checked into the shelter
after father pushed her down and her face hit the footboard of their bed. At the shelter,
mother tested positive for methamphetamine, amphetamine, and buprenorphine. Mother
admitted to using cocaine a few weeks earlier.
On June 20, 2016, the three older children were removed from mother and father’s
custody and placed in a foster home. Mother and father entered into a permanency plan
with DCS. For several months, they completed many of the plan’s requirements. Both
parents were passing drug screens. In December 2016, mother began treatment at a
Suboxone clinic in order to eliminate her dependence on opiates.
H.S. was born on May 16, 2017. Just a couple of weeks later, the three older
children were returned to mother and father for a trial home placement. During the trial
home placement, mother inadvertently called Ms. Finnegan and left a message on her
phone. According to Ms. Finnegan, mother was screaming and swearing at the children.
When Ms. Finnegan visited the home the following day, mother stated that she was
“super anxious and overwhelmed” because she was not getting enough help from family
members. Mother also expressed concern that father may have been using drugs.
Everyone in the home had lice. The three older children were fighting with one another.
Ms. Finnegan testified that she had “just never seen them act that way when they were in
their resource home.” Social workers tried to help mother enroll the three older children
in a summer day camp. Before that could be arranged, the trial home placement was
terminated due to parents’ criminal behavior. Father was arrested for manufacturing
large quantities of controlled substances. Mother tested positive for methamphetamine.
On July 6, 2017, all four children were removed from parents’ custody. The three
older children returned to the foster home. The foster parents initially declined to accept
1
Mother also has two adult sons.
-2-
custody of H.S. because they were concerned about not having enough space. Pursuant
to an “immediate protection agreement,” H.S. was placed with father’s eighteen-year-old
cousin, who was living with another relative.
On July 11, 2017, DCS filed a petition to adjudicate dependency and neglect.
Mother and father waived the preliminary hearing. On July 20, 2017, the trial court
entered an order which provided that the immediate protection agreement would remain
in effect pending further orders from the court. The court also instructed the parties to
ensure that the child was safe in her current placement. On September 12, 2017, the child
was adjudicated dependent and neglected because of her proximity to substance abuse
and domestic violence. After the adjudicatory hearing, the child was placed in the same
foster home as her three older siblings.
At trial, foster mother testified that she and her husband moved into a five-
bedroom home that could accommodate all four children. Foster parents “absolutely”
want to adopt H.S. and her siblings. Foster mother testified that the three older children
are “very protective” of H.S. and have a “very deep bond.” The older siblings taught
H.S. to call foster parents “mom” and “dad.” According to foster mother, the older
children “would ask us regularly if [H.S.] was safe[.]” One child said that during the trial
home placement mother and father were fighting and busted down a door that landed next
to H.S.’s bed.
In August 2017, mother tested positive for methamphetamine. She also moved
into a trailer. Aside from the trailer’s close proximity to an abandoned, unfinished home,
there are no environmental concerns. In September 2017, mother and father attended a
county fair with some friends. Afterward, there was a physical altercation, which
resulted in father’s arrest on domestic violence charges.2 Mother drank so much alcohol
that day that she could not remember important details about the incident. In October
2017, mother missed a drug screen. In November 2017, she tested positive for
methamphetamine.
In December 2017, DCS filed a petition to terminate mother and father’s parental
rights with respect to the three older children. Following a bench trial, the court entered
an order terminating mother and father’s parental rights to the three older children. Both
parents appealed, but this Court affirmed. In re Trey S., 2019 WL 2539204, at *21.
DCS filed a petition to terminate mother and father’s parental rights to H.S. on October
24, 2018.
In the months leading up to the filing of the petition, mother made some positive
steps toward regaining custody of H.S. For example, mother obtained stable
2
Those charges were eventually dropped.
-3-
employment, made regular child support payments, attended all supervised visitation,
passed drug tests and pill counts, completed an alcohol and drug assessment, attended
individual counseling, and completed parenting classes.
However, mother did not abstain from alcohol, as recommended by her alcohol
and drug assessment. Instead, mother’s alcohol consumption increased, especially after
the termination of her parental rights with respect to the three older children. Mother
admitted that she began drinking at home whenever she was feeling “upset” and
“defeated.” At times, she “felt like [she] couldn’t breathe.” The frequency and volume
of mother’s alcohol consumption depended on “how bad [she] fe[lt]” on a particular day.
On June 21, 2018, Ms. Finnegan conducted a home visit around 11:00 a.m. Ms.
Finnegan thought she smelled alcohol on mother’s breath. In July 2018, mother appeared
for a court hearing with a blood alcohol content of 0.12. Mother also tested positive for
alcohol at another court hearing in November 2018. Mother admitted that she began
drinking more in the months leading up to trial. When asked if she had turned to alcohol
as a coping mechanism, mother responded, “I don’t even know how I’m coping. . . . I
don’t think I’m coping at all, but I’m just trying to get through it.” Mother said her
doctor was more concerned about her mental health than her consumption of alcohol. At
the time, mother had a prescription for two anti-anxiety medications – Celexa and
Vistaril. Mother testified that she felt like the medication was working, but she admitted
that she still felt “real anxious.” Mother was also still taking Suboxone.
Additionally, mother did not have a reliable form of transportation because her
driver’s license was suspended. Although mother was able to arrange transportation to
work and visits with the children, it is clear that father has been at least one source of her
transportation, because father drove mother to court twice during the trial.
Mother and father never completed couples counseling, which was required by the
permanency plan if mother and father intended to stay together. Several witnesses
characterized mother and father’s romantic relationship as “on-again off-again.”
According to Ms. Stamps, mother “would say that she doesn’t want to be with [father],
but then within the same conversation, she had mentioned, well, she would be open to
doing counseling with him for the kids.” In September 2017, mother and father attended
a county fair together, which led to father’s arrest on domestic violence charges. In
January 2018, at a foster care review board meeting, father expressed his desire to reunite
with mother; mother was “noncommittal.” Ms. Finnegan testified that in January 2019,
mother’s Facebook account indicated that father was “spending the night [with mother]
just recently until she found out that he was cheating on her again[.]” Mother denied it,
claiming that her Facebook account was hacked. Father admitted that he and mother
have had sex “a few times” since H.S. was removed, but he denied spending the night
with mother shortly before trial. Father also testified:
-4-
I’m always going to be in her life. I mean, whether together
or not, I’m going to help her if I can. It doesn’t mean we’re
in a relationship, but if she needs my help, I’ll be there for
her.
On March 12, 2019, during the middle of trial, mother checked herself into an in-
patient treatment facility. Mother returned to court on April 17, 2017, for the last day of
trial. Mother testified that she completed the rehabilitation program and would not test
positive for drugs or alcohol. Mother also testified that she had plans to continue
treatment for eighteen months at another facility in Alabama. Mother said that she “just
want[s] to start over” and that she “want[s] to get away from everybody that’s on drugs,
Suboxone, anything.” According to mother, the Alabama treatment facility would allow
her to move into a sober living home after thirty to forty-five days. At that point, she
would be allowed to keep children. Mother testified that maternal grandmother was
willing to keep H.S. until mother could move into the sober living home. Mother also
testified regarding various changes in her medication. She had weaned herself off
Suboxone and had changed her anti-anxiety medications. At the end of trial, mother
testified as follows:
It feels great. Even if – even if I don’t get [H.S.] back or win
the appeal, I mean, I want to be better for them when they – if
they find me when they’re 18 or if I get to see them, if the
[foster parents] decide I get to. I just want to be better,
regardless of the outcome of this.
The trial court commended mother for her progress and encouraged her to
continue seeking appropriate treatment. Ultimately, however, the court entered an order
terminating mother and father’s parental rights. Mother timely appealed.
II.
Mother raises the following issues:
Whether the trial court properly determined that grounds
existed to terminate [m]other’s parental rights.
Whether the trial court properly determined that termination
of [m]other’s parental rights was in the best interest of the
child.
III.
A parent has a fundamental right, based on both the federal and state constitutions,
-5-
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash–Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). Although this right is fundamental, it is not
absolute. The State may interfere with a parent’s rights in certain circumstances. In re
Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which
termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g) (Supp. 2019).
Because termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250;
Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), a parent’s rights may be terminated
only where a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002);
In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).
To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “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 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).
We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
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 interest[ ], regardless of whether the parent challenges
these findings on appeal.”).
The Tennessee Supreme Court has stated our standard of review:
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). Under Rule 13(d), appellate courts review
-6-
factual findings de novo on the record and accord these
findings a presumption of correctness unless the evidence
preponderates otherwise. 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. 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. Additionally, all other
questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of
correctness.
Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).
IV.
The trial court found clear and convincing evidence to terminate mother’s parental
rights on three grounds: (A) abandonment by failure to provide a suitable home; (B)
persistent conditions; and (C) failure to manifest an ability and willingness to assume
custody of the child. We discuss each ground in turn.
A.
Tennessee law allows for the termination of parental rights on the ground of
abandonment. Tenn. Code Ann. § 36-1-113(g)(1). A parent can abandon a child in
several ways, including by failing to provide a suitable home. In order to terminate
mother’s parental rights on this ground, DCS was required to present clear and
convincing evidence of the following elements:
(a) The child has been removed from the home or the physical
or legal custody of a parent . . . by a court order at any stage
of proceedings in which a petition has been filed in the
juvenile court alleging that a child is a dependent and
neglected child, and the child was placed in the custody of the
-7-
department or a licensed child-placing agency;
(b) The juvenile court found . . . 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
(c) For a period of four (4) months following the physical
removal, the department or agency made reasonable efforts to
assist the parent . . . to establish a suitable home for the child,
but that the parent . . . ha[s] not made reciprocal reasonable
efforts to provide a suitable home and ha[s] 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 . . . in establishing a suitable home
for the child shall be found to be reasonable if such efforts
equal or exceed the efforts of the parent . . . toward the same
goal, when the parent . . . is aware that the child is in the
custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii) (effective July 1, 2018 to March 21, 2019).3
With respect to section (a), it is undisputed that, on July 6, 2017, the child was
removed from mother’s custody and placed with a family member pursuant to an
immediate protection agreement. On July 11, 2017, DCS filed a petition to adjudicate
dependency and neglect. The court entered an order on July 20, 2017, which provided, in
part, that “The Immediate Protection Agreement shall remain in effect pending further
orders of the Court.” After an adjudicatory hearing on September 12, 2017, the child
entered DCS custody and was placed in a foster home.
With respect to section (b), the trial court made the following findings:
The Department made reasonable efforts to prevent the
removal of this child by providing services to both parents in
the open case with the child’s older siblings who were on a
trial home placement with both parents at the time of the
removal. Those services included developing permanency
plans, drug screens for both parents, parenting classes,
clinical assessment, and domestic violence classes.
3
We apply the statute in effect when the petition to terminate parental rights was filed.
-8-
Most of the services identified by the court were provided to the parents before H.S. was
born. These services are examples of DCS’s reasonable efforts to prevent the removal of
the three older children, not H.S. Nevertheless, the requirements of section (b) are still
satisfied because father’s arrest and mother’s use of methamphetamine during the trial
home placement constitute “circumstances . . . [that] prevented reasonable efforts from
being made prior to the child’s removal[.]” Tenn. Code Ann. § 36-1-102(1)(A)(ii)(b).
Mother basically conceded this point when she and father entered into an immediate
protection agreement, which allowed a family member to obtain custody of H.S.
With respect to section (c), the trial court made the following findings:
The four month period after the removal of the child is July
18, 2017 to November 18, 2017. The Department made
reasonable efforts to assist the parents in establishing a
suitable home by continuing to drug screen parents, including
providing hair follicle tests, non self-reporting alcohol and
drug assessments, doing pill counts, parenting assessment and
parenting education, individual counseling and clinical
assessment. The department was ready to provide couples
counseling for parents but w[as] unable to determine if the
parents were together throughout the course of this case.
* * *
Mother has made some reasonable efforts to establish a
suitable home for the child during the four month period after
removal in that she has maintained contact with DCS and had
a stable address. She continued her substance abuse
treatment during this time with her suboxone clinic.
However, she tested positive in August and November 201[7]
for meth, began abusing alcohol as evidenced by the incident
at the fair in September 201[7] and continued to increase her
alcohol abuse as this progressed.
Mother’s efforts do not demonstrate a lack of concern for the
child to the same extent as Father but the reality is, Mother’s
alcohol abuse (evidenced by coming to court under the
influence in July 2018 and admitting to increased alcohol
abuse up until the date of trial) has prevented Mother from
providing a suitable home at an early date. Even with
Mother’s recent (during the trial) in-patient treatment, she has
a long way to go to maintain consistent sobriety.
-9-
The Court finds the efforts by the Department exceed those
efforts by Mother towards providing a suitable home.
(Emphasis in original.)
The evidence preponderates in favor of the trial court’s finding that DCS made
reasonable efforts to assist mother in establishing a suitable home during the four-month
period identified by the court.4 Mother offers no argument to the contrary and for good
reason. We have long held that providing drug screens, maintaining consistent
communication with a parent, coordinating alcohol and drug assessments, and offering
counseling services constitute reasonable efforts to assist a parent in establishing a
suitable home. See, e.g., In re Nevada N., 498 S.W.3d 579, 596 (Tenn. Ct. App. 2016).
At the very least, DCS’s efforts “equal or exceed the efforts of [mother.]” See Tenn.
Code Ann. § 36-1-102(1)(A)(ii)(c). From July 18, 2017, to November 18, 2017, mother
failed drug screens, failed to start couples counseling, and continued to associate with
father despite a history of substance abuse and domestic violence. Cf. In re Hannah H.,
No. E2013–01211–COA–R3–PT, 2014 WL 2587397, at *9 (Tenn. Ct. App., filed June
10, 2014) (quoting State v. C. W., No. E2007–00561–COA–R3–PT, 2007 WL 4207941,
at *3 (Tenn. Ct. App. Nov. 29, 2007) (“A ‘suitable home requires more than a proper
physical living location.’ It requires that the home be free of drugs and domestic
violence.”)).
The evidence also preponderates in favor of the trial court’s finding that mother
has made some reasonable efforts to provide a suitable home but has still “demonstrated a
lack of concern for the child to such a degree that it appears unlikely that [she] will be
able to provide a suitable home for the child at an early date.” Tenn. Code Ann. § 36-1-
102(1)(A)(ii)(c). Like the trial court, we commend mother for her recent decision to seek
additional treatment for her substance abuse and mental health issues. Nonetheless, the
court appropriately ruled that mother’s sobriety on the last day of trial is not enough to
show that mother will be able to provide a suitable home “at an early date.” Compare In
re L.J., No. E2014–02042–COA–R3–PT, 2015 WL 5121111, at *7 (Tenn. Ct. App., filed
Aug. 31, 2015) (holding that mother’s ability to obtain housing two weeks before the
final trial date was “too little, too late” and did not demonstrate mother’s ability to
provide a suitable home “at an early date”), with In re Serenity W., No. E2018-00460-
COA-R3-PT, 2019 WL 511387, at *5 (Tenn. Ct. App., filed Feb. 8, 2019) (holding that
mother demonstrated that she could provide a suitable home “at an early date” because
she had completed multiple rounds of rehabilitation, attended counseling, and “had been
4
As we have explained in other cases, the statute under present consideration “does not limit the
window during which DCS may satisfy its obligation to make reasonable efforts to the four-month period
directly following statutory removal.” In re Jakob O., No. M2016–00391–COA–R3–PT, 2016 WL
7243674, at *13 (Tenn. Ct. App., filed Sept. 20, 2016).
- 10 -
drug free for several months”). Accordingly, we hold that there is clear and convincing
evidence to terminate mother’s parental rights on this ground.
B.
Tenn. Code Ann. § 36-1-113(g)(3) provides for the termination of parental rights
on the ground of persistent conditions. When the petition to terminate parental rights was
filed, the statute required a petitioner to present clear and convincing evidence of the
following circumstances:
(A) The child has been removed from the home or the
physical or legal custody of a parent . . . for a period of six (6)
months by a court order entered at any stage of proceedings in
which a petition has been filed in the juvenile court alleging
that a child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent . . .
or other conditions exist that, in all reasonable probability,
would cause the child to be subjected to further abuse or
neglect, preventing the child’s safe return to the care of the
parent . . . ;
(ii) 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 . . . in the near future; and
(iii) The continuation of the parent . . . and child relationship
greatly diminishes the child’s chances of early integration
into a safe, stable, and permanent home;
Tenn. Code Ann. § 36-1-113(g)(3)(A) (effective July 1, 2018 to June 30, 2019). The
purpose of allowing the termination of parental rights under these circumstances is “to
prevent the child’s lingering in the uncertain status of foster child if a parent cannot
within a reasonable time demonstrate an ability to provide a safe and caring environment
for the child.” In re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012) (citations
omitted). “The failure to remedy the conditions which led to the removal need not be
willful.” Id.
It is undisputed that the child has been removed from the home of mother for more
than six months and that removal was due to the child’s proximity to substance abuse and
domestic violence. In her brief, mother argues that “all conditions have been remedied.”
Once again, mother emphasizes the fact that she recently completed in-patient
- 11 -
rehabilitation and was sober on the last day of trial. Mother concedes that she and father
never completed couples counseling. However, mother argues that DCS failed to
produce clear and convincing evidence that mother and father were currently in a
romantic relationship or would likely resume their romantic relationship in the future.
The trial court ruled that “both parents’ substance abuse is the main reason the
child would be subject to further abuse and neglect.” The court’s order sets forth a
detailed summary of mother’s “six year pattern of serious drug use of multiple controlled
substances[,] including cocaine (injected for a year), opiates (oxycodone, opana),
methamphetamine[,] and most recently, alcohol.” After reciting mother’s extensive
history of substance abuse, the court again acknowledged mother’s recent attempts to
achieve sobriety; nevertheless, the court concluded that “it will likely take a long period
of sobriety before [mother] is in a healthy place.”
The trial court stated that “it does not appear the parents are currently together,”
but the court expressed concern that mother and father never completed couples
counseling and continued to associate with one another. Specifically, the court noted the
fact that father has provided mother with transportation. Father also testified that he
would always be in mother’s life.
Finally, the trial court found that continuation of the parent-child relationship
would greatly diminish the child’s chances of early integration into a safe, stable, and
permanent home. The court noted that the child has been in the custody of the foster
parents since she was three months old. Mother has never had unsupervised time with
the child. By all accounts, the child is bonded to her siblings and is thriving in the foster
home. The foster parents already have custody of the siblings and intend to adopt them.
Continuation of the parent-child relationship would deny H.S. the opportunity to enjoy
the same stability as her siblings.
The evidence preponderates in favor of the trial court’s finding that the conditions
which led to the child’s removal still persist. With respect to substance abuse, “Mother
seems to have substituted alcohol for drugs, and Mother has not presented evidence
showing that she has addressed her struggles with alcohol.” In re Trey S., 2019 WL
2539204, at *14. As previously discussed, being sober on the last day of trial is not
enough. With respect to the threat of domestic violence, the evidence is a bit weaker. It
is undisputed that mother and father never attended couples counseling and continued to
be romantically involved during the early stages of this case; however, it is unclear
whether mother and father have been romantically involved in the months leading up to
trial or whether they will resume their relationship in the future. Both parents testified
that they were not in a relationship and that any future contact would not be romantic in
nature. However, it seems that the trial court has made an implicit credibility
- 12 -
determination to the contrary.5 See In re Wyatt S., No. E2012–00539–COA–R3–JV,
2012 WL 5482215, at *9 (Tenn. Ct. App., filed Nov. 13, 2012) (implicit credibility
determination); Taylor v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL
2971767, at *4 (Tenn. Ct. App., filed Aug. 5, 2008) (implicit credibility determination).
Because the trial court had the opportunity to observe the parents’ in-person testimony,
we will not disturb that credibility determination.
For the reasons discussed in the previous section of this opinion, the evidence also
preponderates in favor of the court’s finding that there is little likelihood that these
conditions will be remedied “at an early date” such that it would be safe to return the
child to mother. Given the child’s close bond with the foster parents and her siblings, as
well as mother’s limited interactions with the child, the evidence also preponderates in
favor of the court’s finding that continuation of the parent-child relationship will greatly
diminish the child’s chances of early integration into a safe and stable home.
We hold that the facts found by the trial court amount to clear and convincing
evidence that mother’s parental rights can be terminated on the ground of persistent
conditions.
C.
Finally, the trial court found grounds to terminate mother’s parental rights because
the court determined that there was clear and convincing evidence that mother
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 [mother’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)(14). As we have previously explained,
this ground requires DCS to prove two elements by clear and
convincing evidence. Tenn. Code Ann. § 36–1–113(c)(1),
(g)(14). First, DCS must prove that Mother failed to manifest
“an ability and willingness to personally assume legal and
physical custody or financial responsibility of the child[ren].”
Tenn. Code Ann. § 36–1–113(g)(14). DCS must then prove
5
In the prior termination proceeding involving these parents, the same trial judge made an
express credibility determination: “The Court cannot believe a single word either of these parents say in
regards to their relationship or their substance abuse.” In re Trey S., 2019 WL 2539204, at *13.
- 13 -
that placing the children in Mother’s “legal and physical
custody would pose a risk of substantial harm to the physical
or psychological welfare of the child[ren].” Id.
In re Maya R., No. E2017–01634–COA–R3–PT, 2018 WL 1629930, at *7 (Tenn. Ct.
App., filed Apr. 4, 2018).
With regard to the first element, the trial court determined that “[w]hile Mother
has indicated a willingness to assume custody of the child by visiting and completing
many of the tasks on the permanency plan, she has not shown an ability to assume
custody due to her substance abuse.” (Emphasis in original.) The court reiterated that
mother’s substance abuse, particularly her dependence on alcohol, makes her unable to
assume custody of the child.
There is a split of authority as to whether parental rights can be terminated on this
ground when a parent has manifested a willingness, but not the ability, to assume custody
of a child. Compare In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL
3058280, at *12-14 (Tenn. Ct. App., filed June 20, 2018) (termination allowed), no perm.
app. filed, and In re Neamiah R., No. E2017-02000-COA-R3-PT, 2018 WL 2331868, at
*7 (Tenn. Ct. App. May 23, 2018) (termination allowed), no perm. app. filed, with In re
Ayden S., No. M2017–01185–COA–R3–PT, 2018 WL 2447044, at *7 (Tenn. Ct. App.,
filed May 31, 2018) (termination not allowed), no perm. app. filed. DCS asks us to
follow the holding of In re Amynn K., in which this Court held that parental rights can be
terminated if the petitioner shows that a parent has failed to manifest an ability to assume
custody of a child, despite having a willingness to do so. 2018 WL 3058280, at *12-14.
After careful consideration of the conflicting authorities, we accept DCS’s
invitation to follow the holding of In re Amynn K. In that case, the Court carefully
applied well-established rules of statutory construction. The Court’s interpretation of
Tenn. Code Ann. § 36-1-113(g)(14) also closely parallels the Supreme Court’s
interpretation of Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv), a similarly-worded ground
for terminating a putative father’s parental rights.6 See In re Bernard T., 319 S.W.3d
586, 604-05 (Tenn. 2010) (concluding that the ground was proven where the father had
“manifested a commendable willingness to assume legal custody of all the children” but
did not “presently have the ability to assume legal and physical custody of any of the
children.”).
Returning to the present case, the evidence preponderates in favor of the trial
court’s finding that mother was willing, but not able, to assume custody of the child.
6
Under this ground, a putative father’s parental rights can be terminated when: “The person has
failed to manifest an ability and willingness to assume legal and physical custody of the child[.]” Tenn.
Code Ann. § 36-1-113(g)(9)(A)(iv).
- 14 -
Mother has complied with many requirements of the permanency plan. She even
checked herself into an in-patient treatment facility during the middle of trial. These
actions, as well as mother’s testimony, indicate that she is willing to assume custody of
H.S. Nevertheless, as already discussed in this opinion, mother did not have the ability to
assume custody of the child at the time of trial.
With regard to the second element of this ground, the trial court stated the
following:
“The courts have not undertaken to define the circumstances
that pose a risk of substantial harm to a child. These
circumstances are not amenable to precise definition because
of the variability of human contact. However, the use of the
modifier ‘substantial harm’ indicates two things. First, it
connotes a real hazard or danger that is not minor, trivial, or
insignificant. Second, it indicates that the harm must be more
than a theoretical possibility. While the harm need not be
inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more
likely than not.” Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct.
App. 2001).
The Court has no trouble at all finding that placing the child
in Mother’s legal and physical custody at this time would
pose a risk of substantial harm to the physical or
psychological welfare of the child. Mother does not have a
period of sustained sobriety for many, many years. Even
before her older children were placed in DCS custody in
2016, she was abusing drugs for several years.
Based on Mother’s history of substance abuse and collateral
criminal activity, the likelihood of a relapse is extremely high
and poses a risk of substantial harm to this child. While the
Court is hopeful Mother is able to continue her treatment and
be successful in her sobriety for her own well-being, it is not
likely this will happen in the near future to benefit this child.
Mother’s brief contains the conclusory assertion that DCS failed to prove that
returning the child to mother would pose a risk of substantial harm. No explanation is
provided. In our view, the evidence preponderates in favor of the trial court’s finding
that the child would be at risk of substantial harm because of mother’s pattern of
substance abuse. Additionally, Ms. Harshman, a resource coordinator for Omni Visions,
testified that it would be “traumatic” for the child to be removed from the home of her
- 15 -
foster parents and her siblings. This is the only home H.S. has ever known. The
psychological harm that would result from her removal is at least as important as the
potential physical harm that could be caused by the child’s proximity to substance abuse.
We agree with the trial court that the foregoing facts clearly and convincingly
support termination of mother’s rights pursuant to Tenn. Code Ann. § 36-1-113(g)(14).
V.
A.
Because at least one statutory ground warrants the termination of mother and
father’s parental rights, we now focus on whether termination is in the best interest of
H.S. We are guided by the statutory factors set forth in Tenn. Code Ann. § 36-1-113(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 interests 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
- 16 -
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.
“Ascertaining a child’s best interests does not call for a rote examination of [these] nine
factors and then a determination of whether the sum of the factors tips in favor of or
against the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case.” In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005).
Most importantly, “[t]he child’s best interest must be viewed from the child’s, rather than
the parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)
(citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).
B.
The trial court expressly considered the factors recited above. Because the court’s
findings are supported by the record, we quote at length from the court’s discussion7:
(1) Whether the parent 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.
* * *
MOTHER: While Mother has made some good progress on
the requirements asked of her, she continues to struggle with
substance abuse to the extent that it is unsafe for the child to
be returned to her home. Since this is the paramount reason
7
We omit the court’s consideration of the best interest factors as they relate to father.
- 17 -
the child was placed into foster care, it is the priority outcome
that is missing from Mother’s circumstances. It remains
unclear whether she will be able to make a lasting adjustment
in the near future. This uncertainty is what the child is
trapped in.
The Court places great weight on this factor for finding
termination is in the [child’s] best interest.
(2) Whether the parent 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.
* * *
MOTHER: DCS has assisted with numerous random drug
screens and payment of hair follicle tests and an alcohol and
drug assessment for Mother (September 2017). The
Department provided a clinical assessment for Mother and
parenting assessment. They provided supervised visitation
both through a provider agency and DCS caseworkers for two
and a half years. They have maintained constant contact with
Mother and provided support for her whenever necessary.
Despite all of this, Mother continues to struggle with
substance abuse, substituting alcohol for drugs as recently as
during the trial.
(3) Whether the parent has maintained regular visitation or
other contact with the child.
* * *
MOTHER: Mother has consistently visited with the child
during the entirety of the case. However, Mother has not had
unsupervised visits or overnight visits and there were no
recent recommendations that she have this.
(4) Whether a meaningful relationship has otherwise been
established between the parent and the child.
* * *
- 18 -
MOTHER: While Mother is regularly visiting, it cannot be
said there is a meaningful relationship with the child. She is
very bonded with the foster parents and her siblings.
(5) The effect a change of caretakers and physical
environment is likely to have on the child’s emotional,
psychological and medical condition. BOTH PARENTS:
The Court places great weight on this factor. The only family
this child has known is her foster family. The foster parents
love her unconditionally and want to adopt her and her
siblings. They have dramatically changed their lives for this
child. She is safe and secure. The Court fears the outcome
would be EXACTLY the same as the failed trial home visit if
the [child] w[as] to return home at this point. Mother’s lack
of a sustained period of sobriety prevents a healthy and safe
environment with Mother.
(6) Whether the parent or other person residing with the
parent has shown brutality, physical, sexual emotional or
psychological abuse or neglect toward the child or another
child or adult in the family or household. BOTH PARENTS:
The proof is clear there were many acts of serious domestic
violence in the home between the parents. They fought and
argued a lot. Mother admitted the children saw it.
Fortunately this child was removed before this could have a
lasting effect on her. The Court finds the likelihood the
parents will be or are together to be great without addressing
the underlying issue of domestic assault.
(7) Whether the physical environment of the parent’s home is
healthy and safe. Whether there is criminal activity in the
home, or whether there is such use of alcohol, controlled
substances as may render the parent consistently unable to
care for the child is a safe and stable manner.
* * *
MOTHER: While Mother’s home was physically safe, it is
not just the bricks and mortar. It is the unhealthy
environment Mother is trapped in because of her substance
abuse of (most recently) alcohol. The Court has no trouble
finding Mother is unable to care for this child at this time
after over two years of continuous substance abuse treatment
- 19 -
and recent in-patient treatment.
(8) Whether the parent’s mental and/or emotional status
would be detrimental to the child or prevent the parent from
effectively providing safe and stable care and supervision for
the child.
* * *
MOTHER: Mother has likely been self-medicating for years
due to her anxiety and possibly undiagnosed mental illness.
Even after a year of treatment, she has been unable to
maintain sobriety. Her current regular alcohol use to the
extent that she would come to court under the influence, tells
the Court she is nowhere near ready mentally or emotionally
to provide a safe home for the children.
(9) Whether the parent has paid child support consistent with
the child support guidelines.
* * *
MOTHER: Mother has been paying child support through
wage assignment garnishment and income tax garnishment.
She admits she owes some arrears but the amount is not
significant.
(Emphasis in original.)
Balancing these statutory factors, and considering the situation from the child’s
perspective, the trial court concluded that termination of mother’s parental rights is in the
best interest of H.S.
The court appropriately placed “great weight” on factors (1) and (5). Factor (1)
concerns mother’s failure to make an adjustment of circumstance to the extent that
returning the child would be safe. As the court noted, this factor is particularly relevant
because mother’s substance abuse was one of the primary reasons the child was removed
in the first place. Although mother exchanged drugs for alcohol, mother continued to
struggle with substance abuse throughout this case. Mother only obtained sobriety on the
last day of trial and, at the time, it was unclear whether that adjustment would be a lasting
one.
Factor (5) concerns the effect a change of caretakers would have on the child’s
- 20 -
emotional, psychological and medical condition. The importance of this factor cannot be
understated. H.S. has been in the custody of foster parents since she was three months
old. She has a “deep bond” with her siblings and her foster parents, who she calls “mom”
and “dad.” Mother and father’s parental rights to the three older children have already
been terminated, and foster parents wish to adopt all four children. See In re Mariah H.,
No. E2016–02091–COA–R3–PT, 2017 WL 2829820, at *16 (Tenn. Ct. App., filed June
30, 2017) (holding that a change of caretakers would have an adverse effect on the child
where “[t]he [c]hild has remained in the same foster home with two of her biological
half-siblings since shortly after she was born” and “is bonded to the foster parents, who
have expressed a desire to adopt her.”).
As the trial court noted, the only best interest factors that weigh against
termination of mother’s parental rights are factors (3) and (9). Mother did pay child
support and maintained consistent visitation with the child. However, visitation was
always supervised and there was conflicting testimony as to whether the child recognized
mother as her parent during those visits.
The evidence clearly and convincingly supports a finding that termination of
mother’s parental rights is in the best interest of the child. H.S. needs stability. H.S. also
deserves to be permanently reunited with her three older siblings. We hope that mother
will continue to seek appropriate treatment for her substance abuse and mental health
issues. We also hope that mother will take appropriate steps to protect herself from
domestic violence. It is not in the best interest of H.S., however, for this case to remain
in limbo while mother pursues those goals.
VI.
The judgment of the trial court is affirmed. The costs on appeal are assessed to the
appellant, E.R. The case is remanded for enforcement of the trial court’s judgment.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
- 21 -