In Re Serenity W.

02/08/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 3, 2018
IN RE SERENITY W.
Appeal from the Juvenile Court for Cocke County
No. TPR-05451 Steven Lane Wolfenbarger, Judge
___________________________________
No. E2018-00460-COA-R3-PT
___________________________________
A mother appeals the termination of her parental rights to her child. After the mother
tested positive for drugs at a court hearing, the trial court awarded temporary legal and
physical custody of the child to the Tennessee Department of Children’s Services. Over
two years later, the juvenile court found by clear and convincing evidence three statutory
grounds for termination: abandonment by failure to provide a suitable home, substantial
noncompliance with the permanency plans, and failure to manifest an ability and
willingness to assume custody or financial responsibility for the child. The court also
found by clear and convincing evidence that termination of the mother’s parental rights
was in the child’s best interest. We conclude that the evidence was less than clear and
convincing as to two of the statutory grounds but the record contains clear and
convincing evidence to support one ground for termination. But because we also
conclude that the evidence was less than clear and convincing that termination was in the
child’s best interest, we reverse the termination of the mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, J., joined. CHARLES D. SUSANO, JR., J., filed a separate opinion concurring in
part and dissenting in part.
Ryan T. Logue (on appeal), Dandridge, Tennessee, for the appellant, Brittany C.
Herbert H. Slatery III, Attorney General and Reporter, and Erin A. Shackelford, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
A.
Serenity was born in December 2014 to Brittany C. (“Mother”) and Christopher
W. (“Father”). In May 2015, Father physically abused Serenity’s half-sibling while
Mother was away from home. So, at the request of the Tennessee Department of
Children’s Services (“DCS”), the Juvenile Court of Cocke County, Tennessee, issued a
restraining order prohibiting any contact between Father and the children. Although
Mother tested positive for oxycodone, suboxone, and marijuana, DCS did not seek to
remove the children from Mother’s custody at that time.
After the court issued the no-contact order, Mother moved with Serenity and her
half-sibling to her mother’s home. But in June she violated the no-contact order by
allowing Father into the home. And at a subsequent hearing on August 27, 2015, Mother
again tested positive for oxycodone. As a result, the juvenile court issued a bench order
awarding DCS temporary legal and physical custody of Serenity and her half-sibling.
On September 28, 2015, DCS created a permanency plan for Serenity with twin
goals of return to parent or exit custody with relatives. See Tenn. Code Ann. § 37-2-403
(2014). Under the plan, Mother needed to complete a list of responsibilities designed to
enable her to provide a safe home for Serenity. In addition to drug addiction, Mother
reported ongoing mental and emotional issues from past abuse. The plan required
Mother to complete both an alcohol and drug assessment and a mental health assessment
and to follow the resulting recommendations. The plan also required her to sign releases
so that DCS could monitor her progress and to submit to random drug screens and pill
counts. And Mother needed to document completion of parenting and domestic violence
classes. She was granted supervised visitation and was expected to demonstrate
appropriate parenting skills at visitations. Mother also needed to maintain a legal source
of income, provide documentation of both housing and income, and comply with all court
orders. Over the succeeding months, the plan was revised twice, but Mother’s
responsibilities remained largely the same.
Within a couple of months, Mother had completed both parenting and domestic
violence classes and provided the appropriate documentation. And she submitted to the
two required assessments in early January 2016. Based on information that Mother
provided during her assessments, the provider recommended that she complete intensive
outpatient alcohol and drug treatment and individual mental health therapy. The provider
also indicated that Mother would benefit from medication management for any
medication she was prescribed. But Mother did not follow the recommendations. And
2
after a fight with her stepfather, she was asked to leave her mother’s home. She also lost
her job. For most of 2016, Mother remained homeless and unemployed.
At the adjudicatory hearing on March 11, 2016, the court found clear and
convincing evidence that Serenity was dependent and neglected. Mother did not appear
at the hearing. And on April 25, 2016, she tested positive for amphetamine and
methamphetamine. After the positive drug screen, she enrolled in a recovery program,
but dropped out a few months later. At the end of October 2016, she rented a trailer
home, but was evicted after a few months because “[she] let just anybody in [her] house
and the law was there constantly.” After that, she lived either with relatives or on the
streets.
In early November 2016, the court ordered her to submit to a hair follicle test, but
Mother failed to comply by the court imposed deadline. At the review hearing on
December 9, the court suspended her visitation until she appeared for a drug screen.
Mother did not appear until February 2017. She had obtained the requested hair follicle
test, but it was positive for methamphetamine. Even so, the court allowed her to resume
supervised visitation because she passed the court-administered drug screen.
On March 31, 2017, DCS filed a petition to terminate Mother’s parental rights.1
The petition alleged four grounds for termination: abandonment by failure to provide a
suitable home, substantial noncompliance with the permanency plan, persistence of
conditions, and failure to manifest the ability and willingness to parent.
Even after the termination petition was filed, Mother continued to use illegal
drugs. After she missed a scheduled visit with Serenity in late April, the family service
worker or FSW required Mother to submit to a drug screen before rescheduling the visit.
Mother repeatedly failed to appear for the requested drug screen. As a result, she did not
visit with Serenity again until September.
In September 2017, Mother moved in with her grandparents and finally started
working on the recommendations from her assessments. She completed an inpatient
rehabilitation program and began intensive outpatient alcohol and drug treatment four
days per week. In November 2017, she also began to address her mental health issues.
Mother suffered from anxiety and post-traumatic stress disorder from past abuse. On
November 12, she began taking appropriate medication, enrolled in medication
management, and began individual therapy.
1
DCS also petitioned to terminate Father’s parental rights. Father’s rights are not at issue in this
appeal.
3
In December 2017, Mother found a part-time job.2 And in January 2018 she
obtained full-time employment at Taco Bell.
B.
At the termination hearing on February 2, 2018, the court heard testimony from
the FSW, Mother, the foster mother, and Mother’s grandfather. According to the FSW,
Mother’s compliance with the permanency plan was spotty. He acknowledged that she
completed the required assessments and classes. But she never provided documentation
that she followed the recommendations from the assessments, and she failed to maintain
stable employment or housing. Although she passed most of her drug screens, she had
some notable fails.
Serenity had been in the same foster home for over two years. At three, she was
thriving in her current environment. She had formed a strong bond with her foster
parents, who were also her great-grandparents.3 The foster parents desired to adopt her.
According to the FSW, Mother attended approximately sixty percent of her
scheduled visits. Most of her interactions with Serenity were appropriate. Based on the
FSW’s observations, Mother did not appear to have a close relationship with Serenity.
Serenity never mentioned Mother to the foster parents and separated easily when the
visits ended.
For her part, Mother acknowledged her past mistakes. She admitted to using
methamphetamine as recently as September 2017. But she reported that she had been
clean and sober since November 12, 2017, a record for her. All of her previous attempts
to overcome her drug addiction had ended after a month. She was also employed, living
in a stable home with her grandparents, and actively participating in mental health
therapy and intensive outpatient drug treatment. Her outpatient treatment would be
finished at the end of February.
Mother conceded that it had taken her three years to get clean, mainly because she
had been in denial. She credited her grandfather for her new stability. He drove her to all
her appointments and provided needed accountability. According to Mother, “[t]his is
the biggest opportunity that I’ve had in a long time and I’m taking full advantage of it.”
The juvenile court did not find that DCS had proven persistence of conditions by
clear and convincing evidence. But the court found clear and convincing evidence for the
2
Prior to December 2017, Mother had not had stable employment since the end of January 2016.
In early 2017, she worked for approximately three months for Koch Foods.
3
Mother has two sets of grandparents. She lived with one set while Serenity was placed in the
home of the other set.
4
three remaining grounds alleged in the petition and that termination of Mother’s parental
rights was in the child’s best interest. So on February 12, 2018, the juvenile court
terminated Mother’s parental rights.
II.
A parent has a fundamental right, based in both the federal and State constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 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 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d
at 250. Our Legislature has identified those situations in which the State’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting
forth the grounds upon which termination proceedings may be brought. See Tenn. Code
Ann. § 36-1-113(g) (2017).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
First, parties seeking termination of parental rights must prove the existence of at least
one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for
termination are shown, they then must prove that terminating parental rights is in the
child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,
215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). This heightened burden of proof serves “to minimize the possibility of erroneous
decisions that result in an unwarranted termination of or interference with these rights.”
Id. “Clear and convincing evidence” leaves “no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the
fact-finder’s mind regarding the truth of the facts sought to be established. In re Bernard
T., 319 S.W.3d at 596.
On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
5
Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de
novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct.
App. 2007).
III.
Mother appeals from the termination of her parental rights arguing that it was not
in Serenity’s best interest to terminate her parental rights. She presents no argument
challenging the grounds for termination found by the trial court. Nonetheless, we 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 507, 525-26 (Tenn.), cert.
denied sub nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44 (2016).
A. GROUNDS FOR TERMINATING PARENTAL RIGHTS
1. Abandonment
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). The General Assembly has provided
“five alternative definitions for abandonment as a ground for the termination of parental
rights.” In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005); see also Tenn.
Code Ann. § 36-1-102(1)(A) (2017) (defining the term “abandonment”).
A child has been abandoned under the second statutory definition if the child has
been removed from the home of a parent as a result of a petition filed in juvenile court,
which ultimately results in a finding that the child was dependent and neglected, and
for a period of four (4) months following the removal, the department . . .
has made reasonable efforts to assist the parent . . . to establish a suitable
home for the child, but . . . the parent . . . ha[s] made no 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 [the parent] will be able
to provide a suitable home for the child at an early date.
Tenn. Code Ann. § 36-1-102(1)(A)(ii).
A suitable home means more than an adequate living space. In re Hannah H., No.
E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014).
Children also need appropriate care and attention. In re A.D.A., 84 S.W.3d 592, 599
(Tenn. Ct. App. 2002). Thus, a parent’s conduct can render an adequate living space
unsuitable. In re Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at *18
(Tenn. Ct. App. June 16, 2011). A suitable home is free from drugs and domestic
6
violence. In re Hannah H., 2014 WL 2587397, at *9. And the parent’s efforts to comply
with the responsibilities in the permanency plan are directly relevant to the ability to
provide a suitable home. In re Kayla B., No. E2016-01192-COA-R3-PT, 2017 WL
438622, at *6 (Tenn. Ct. App. Feb. 1, 2017).
Here, we are concerned with the evidence of reasonable efforts during the time
period from August 28, 2015, the day following removal, to December 28, 2015. DCS
has the burden of proving that its efforts were reasonable under the circumstances. In re
Hannah H., 2014 WL 2587397, at *9. The proof on this point is sparse. DCS created a
permanency plan and referred Mother to the appropriate providers after verifying that her
insurance would cover the necessary services. The agency also obtained separate funding
for Mother’s hair follicle test. The FSW also administered drug screens and monitored
Mother’s progress in completing her responsibilities.
To meet the requirement of reasonable efforts, DCS must do more than simply
provide a parent with a list of service providers. In re Isobel V.O., No. M2012-00150-
COA-R3-PT, 2012 WL 5471423, at *8 (Tenn. Ct. App. Nov. 8, 2012). Rather, the
agency must use its “superior insight and training to assist parents with the problems . . .
identified in the permanency plan, whether the parents ask for assistance or not.” In re
C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 (Tenn. Ct. App. Mar.
9, 2004), overruled on other grounds by In re Kaliyah S., 455 S.W.3d at 555. But DCS’s
efforts to assist the parent “may be found to be reasonable if such efforts exceed the
efforts of the parent . . . toward the same goal.” Tenn. Code Ann. § 36-1-102(1)(A)(ii).
During the four-month period following removal, Mother completed parenting and
domestic violence classes but made no attempt to address her drug addiction or mental
health issues. She delayed submitting to the required assessments until after the four-
month period. And even after the assessments, she failed to seek the recommended
treatment. Although DCS’s efforts were minimal, in light of Mother’s lack of effort
during this same period, we conclude that DCS’s efforts to assist Mother were
reasonable.
Beyond reasonable efforts by DCS and a lack of reasonable efforts by Mother,
DCS must also show Mother demonstrated a lack of concern for her child such that it
appears unlikely she will be able to provide a suitable home at an early date. See id. By
the time of trial, Mother had completed an inpatient rehabilitation program and
participated in intensive outpatient drug treatment. She had been drug free for several
months. She was also taking medication for her mental health issues and participating in
individual therapy. The trial court did not consider these positive changes because they
occurred outside the four-month period. But in evaluating this element, Mother’s more
recent behavior may be considered. See In re Joshua S., 2011 WL 2464720, at *18.
7
Based on Mother’s efforts at compliance by the time of trial, we cannot say that
there was clear and convincing evidence that Mother exhibited such a lack of concern for
the welfare of her child that it appeared unlikely that she would be able to provide a
suitable home at an early date. See In re Quintin S., No. E2016-02150-COA-R3-PT,
2017 WL 2984193, at *11 (Tenn. Ct. App. July 13, 2017) (concluding that DCS failed to
establish this element of abandonment based on Mother’s positive changes by the time of
trial). Because DCS failed to prove this element by clear and convincing evidence, we
conclude that terminating Mother’s parental rights based on the ground of abandonment
was inappropriate.
2. Substantial Noncompliance with the Permanency Plan
The juvenile court also found Mother was not in substantial compliance with the
requirements of the permanency plan. See Tenn. Code Ann. § 36-1-113(g)(2). Before
analyzing whether a parent complied with the permanency plan, the court must find that
the permanency plan requirements that the parent allegedly failed to satisfy were
“reasonable and are related to remedying the conditions that necessitate foster care
placement.” In re Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. § 37-2-
403(a)(2)(C)). Permanency plan requirements may focus on remedying “conditions
related both to the child’s removal and to family reunification.” Id.
All three permanency plans required Mother to complete both an alcohol and drug
assessment and a mental health assessment and to follow the resulting recommendations;
to sign the appropriate releases; to submit to random drug screens and pill counts; to
document completion of parenting and domestic violence classes; to visit Serenity as
scheduled; and to demonstrate appropriate parenting skills during visitations. Mother
also needed to maintain a legal source of income, provide documentation of housing and
income, and comply with all court orders. We agree with the juvenile court that the
requirements of the permanency plans were reasonable and related to remedying the
conditions that necessitated foster care.
Next, we must determine whether Mother’s noncompliance was substantial in
light of the importance of the requirements to the overall plan. See id. at 548-49.
“Substantial noncompliance is a question of law which we review de novo with no
presumption of correctness.” Id. at 548. A “[t]rivial, minor, or technical” deviation from
the permanency plan’s requirements does not qualify as substantial noncompliance. In re
M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). Our focus is on the parent’s efforts
to comply with the plan, not the achievement of the plan’s desired outcomes. In re B.D.,
No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *8 (Tenn. Ct. App. Mar. 2, 2009).
We review the court’s findings of fact concerning compliance with the requirements of
the permanency plan de novo with a presumption of correctness. See In re Valentine, 79
S.W.3d at 547.
8
Mother attended the required classes and completed her assessments. She also
demonstrated appropriate parenting skills during her visits with Serenity. But her
remaining responsibilities had not been addressed at the time the termination petition was
filed. She had not followed the recommendations from her assessments or maintained
stable employment or housing. We recognize that by the time of trial Mother’s
circumstances had changed. Improvements in compliance “should be considered in a
parent’s favor.” Id. at 549. The trial court found that Mother’s post-petition efforts were
late. And we agree.
Certainly, parents with drug addictions can “have false starts and set backs, as well
as successes and, regrettably, backsliding,” and we should take that into account. In re
M.J.M., Jr., No. M2004-02377-COA-R3-PT, 2005 WL 873302, at *11 (Tenn. Ct. App.
Apr. 14, 2005). But “a permanency plan is not simply a list of tasks with boxes to be
checked off before custody is automatically restored. Rather, it is an outline for doing the
things that are necessary to achieve the goal of permanency in children’s lives.” In re
V.L.J., No. E2013-02815-COA-R3-PT, 2014 WL 7418250, at *8 (Tenn. Ct. App. Dec.
30, 2014). Substantial compliance requires parents to “complete their responsibilities in a
manner that demonstrates that they are willing and able to resume caring for their
children in the long-term, not on a month-to-month basis.” Id.
We cannot overlook Mother’s extended period of inaction. Despite her early
progress, Mother made no real effort to address the conditions that prevented
reunification for almost two years. She admitted that she was still using
methamphetamine in September 2017. While her recent efforts are commendable, the
evidence was clear and convincing that Mother did not substantially comply with the
requirements of the permanency plan. See In re Isabella G., No. M2016-02105-COA-
R3-PT, 2017 WL 4407816, at *10 (Tenn. Ct. App. Oct. 3, 2017), perm. app. denied, (Jan.
5, 2018) (finding clear and convincing evidence of substantial noncompliance when
parents waited over a year before making “any serious effort at fulfilling their
responsibilities”); In re Malaya B., No. E2015-01880-COA-R3-PT, 2016 WL 3083045,
at *5 (Tenn. Ct. App. May 24, 2016), perm. app. denied, (Aug. 10, 2016) (finding clear
and convincing evidence of substantial noncompliance when the mother failed to address
her drug addiction and mental health issues until after the termination petition was filed).
3. Failure to Manifest an Ability and Willingness to Assume Legal and Physical Custody
Finally, the court found termination of parental rights appropriate under § 36-1-
113(g)(14). Under this ground, a parent’s rights may be terminated if he or she
[1] 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 [2] placing the child in the person’s legal and physical
9
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 to the first prong, DCS must prove by clear and convincing evidence that
Mother failed to manifest an ability and willingness to personally assume legal and
physical custody of the child or that she failed to manifest an ability and willingness to
personally assume financial responsibility for the child. See In re Amynn K., No. E2017-
01866-COA-R3-PT, 2018 WL 3058280, at *14 (Tenn. Ct. App. June 20, 2018). Ability
focuses on the parent’s lifestyle and circumstances. See In re Maya R., No. E2017-
01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018). When
evaluating willingness, we look for more than mere words. See In re Keilyn O., No.
M2017-02386-COA-R3-PT, 2018 WL 3208151, at *8 (Tenn. Ct. App. June 28, 2018)
(“Although Mother testified that she was both willing and able, her actions proved
otherwise.”). Parents demonstrate willingness by attempting to overcome the obstacles
that prevent them from assuming custody or financial responsibility for the child. See In
re Isaiah B., No. E2017-01699-COA-R3-PT, 2018 WL 2113978, at *18 (Tenn. Ct. App.
May 8, 2018) (focusing on the mother’s lack of effort to remove the threat of domestic
violence); In re Maya R., 2018 WL 1629930, at *7 (focusing on the mother’s lack of
effort to fulfill her responsibilities in the parenting plan).
With respect to the second prong, DCS must establish that placing the child in
Mother’s custody would pose a risk of substantial harm to the physical or psychological
welfare of the child by the same quantum of proof. See In re Maya R., 2018 WL
1629930, at *7. Previously, we have described “a risk of substantial harm” in these
terms:
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 conduct. However,
the use of the modifier “substantial” 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) (footnotes omitted).
We conclude that, prior to the filing of the petition, Mother did not exhibit an
ability and willingness to personally assume legal and physical custody or financial
responsibility for her child. When the termination petition was filed, almost two years
after Serenity entered foster care, Mother had not yet addressed her drug addiction or
10
mental health issues. She also lacked stable employment and housing. Mother’s lack of
effort before the termination petition was filed undercuts any willingness argument. And
her recent positive changes are of too short a duration to demonstrate that she is currently
able to assume custody of her child. See In re M.E.N.J., No. E2017-01074-COA-R3-PT,
2017 WL 6603658, at *7 (Tenn. Ct. App. Dec. 27, 2017) (concluding that the parent must
demonstrate ability and willingness as of the date the termination petition was filed); cf.
In re Maya R., 2018 WL 1629930, at *7 (examining evidence of the mother’s conduct
both before and after the petition was filed).
But the evidence was less than clear and convincing that placing the child in
Mother’s custody would pose a risk of substantial harm to the child’s physical or
psychological welfare. Although Mother used illegal drugs throughout much of this case,
she was drug free at trial. She had completed an inpatient drug treatment program and
was nearly finished with intensive outpatient treatment. She also had strong support from
her grandparents, who were driving her to her appointments and ensuring she complied
with all recommendations. While a relapse was a theoretical possibility, DCS failed to
prove that it was a reasonable probability. So we conclude that terminating Mother’s
parental rights on the ground of failure to manifest an ability and willingness to assume
legal and physical custody was also inappropriate.
B. BEST INTEREST OF THE CHILD
Having determined that one statutory ground for termination was proven by clear
and convincing evidence, we must determine whether termination of Mother’s parental
rights is in the child’s best interest. Because “[n]ot all parental misconduct is
irredeemable,” our parental termination “statutes recognize the possibility that
terminating an unfit parent’s parental rights is not always in the child’s best interests.” In
re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005). Tennessee Code Annotated § 36-
1-113(i) lists nine factors that courts may consider in making a best interest analysis. In
reaching a decision, “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, 682 (Tenn.
2017).
The focus of this analysis is on what is best for the child, not what is best for the
parent. In re Marr, 194 S.W.3d at 499. Needless prolonged placement in foster care is
never in a child’s best interest. Tenn. Code Ann. § 37-2-401(a) (2014). But we cannot
discount the value of the parent-child relationship. Id. § 36-6-401(a) (2017). So the
analysis should also take into account “the impact on the child of a decision that has the
legal effect of reducing the parent to the role of a complete stranger.” In re C.B.W., No.
M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
Although “[f]acts relevant to a child’s best interests need only be established by a
preponderance of the evidence, . . . the combined weight of the proven facts [must]
11
amount[] to clear and convincing evidence that termination is in the child’s best
interests.” In re Carrington H., 483 S.W.3d at 535.
The first two statutory factors look at the parent’s current lifestyle and living
conditions. The first factor focuses on 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 [parent’s] home.” Tenn. Code Ann. § 36-1-113(i)(1). And the second factor
considers the potential for lasting change. See id. § 36-1-113(i)(2) (asking “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.”). Here, the trial court found that Mother’s recent positive
changes were insignificant in light of the length of time Serenity had been in foster care
and that it was too soon to know if her adjustment would last.
We conclude that the evidence preponderates against the trial court’s findings on
the first two factors. At the time of trial, Mother was employed, drug free, and living
with her grandparents. DCS presented no evidence that Mother’s current home was
unsafe. Mother was also participating in intensive outpatient drug treatment, medication
management, and individual mental health therapy. These changes, albeit late in coming,
were significant.
And Mother made these changes with limited assistance from DCS. DCS merely
provided her with a list of service providers, verified her insurance coverage, and then
monitored her progress. We recognize that Mother’s current sobriety is of short duration.
She could relapse; she has done so before. And a relapse would jeopardize all of her
recent progress. On the other hand, Mother has a strong support system with her
grandparents, who are monitoring her progress and providing her transportation and
housing. We cannot say that lasting adjustment did not reasonably appear possible.
Under the third factor, we consider Mother’s track record in visiting Serenity. See
id. § 36-1-113(i)(3). The evidence does not preponderate against the trial court’s finding
that Mother did not visit regularly. She had several gaps in visitation and only attended
sixty percent of her scheduled visits.
The fourth factor considers “[w]hether a meaningful relationship has otherwise
been established between the parent . . . and the child.” Id. § 36-1-113(i)(4). Serenity
lived with Mother for six months before she was placed in foster care. And Mother has
visited Serenity throughout this case. Based on these visits, the court found that Mother
and Serenity may have a meaningful relationship. While there is contrary evidence, the
evidence does not preponderate against the court’s finding.
The fifth factor evaluates the effect a change in caregivers would have on the
child’s emotional, psychological, and medical condition. See id. § 36-1-113(i)(5).
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Although Serenity has a strong bond with her foster parents, she also has a meaningful
relationship with Mother. DCS did not present any evidence that Mother would be
unable to meet Serenity’s needs. And Serenity should be able to continue her
relationship with her great-grandparents. While any change can be disruptive to a three-
year-old, the evidence does not support the trial court’s finding that a change of
caregivers would be detrimental.
Under the sixth factor, the court determines whether the parent or another person
residing with the parent “has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child” or another person in the home. See id.
§ 36-1-113(i)(6). The trial court found this factor favored Mother, and we agree. Mother
ended her relationship with Father, and there was no evidence of brutality or abuse in her
current home.
The seventh factor focuses on the parent’s home environment and ability to be a
safe and stable caregiver. See id. § 36-1-113(i)(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 [the intoxicants] as may render the parent . . . consistently
unable to care for the child in a safe and stable manner.”). The evidence does not
preponderate against the trial court’s finding that Mother’s current home is healthy and
safe. And, at the time of trial, Mother was drug free.
The eighth statutory factor evaluates the parent’s mental and emotional health,
asking “[w]hether 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.” Id. § 36-1-113(i)(8). Mother has a history
of drug abuse and has been diagnosed with PTSD and anxiety. But at the time of trial,
she was drug free, actively participating in individual therapy, and taking appropriate
medications for her diagnoses. She was excited about resuming her role as a parent.
DCS presented no contrary evidence. The trial court was not convinced that Mother had
overcome her past. The court expressed concern that her “ongoing substance abuse” and
PTSD would hamper her ability to provide appropriate care for Serenity. While we
appreciate those concerns, the evidence does not support those findings.
The ninth factor looks at the parent’s child support history. See id. § 36-1-
113(i)(9). The only evidence on child support was the FSW’s testimony that Mother paid
“some [child support] at some time.”
The trial court determined that the combined weight of the statutory factors
favored termination of Mother’s parental rights. The court focused on Mother’s past
behavior and was unconvinced that her recent adjustment would last. Whether a return to
the parent’s home is likely in the near future is an important consideration. In re C.B.W.,
2006 WL 1749534, at *8. The best interest analysis necessarily involves some prediction
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of future events. Id. at *6. Lacking a crystal ball, we cannot be sure that Mother’s
positive changes will last. But the mere possibility that Mother could relapse and resume
her previous behavior “does not amount to clear and convincing evidence that
termination is in the [child’s] best interests.” In re Gabriella D., 531 S.W.3d at 686.
We conclude that the evidence is less than clear and convincing that termination of
Mother’s parental rights is in the child’s best interest. The best interest analysis involves
“a delicate balance between the substantial need to provide the child stability and the
interest of the child in maintaining a relationship with his or her biological family.” In re
Wesley P., No. W2014-02246-COA-R3-PT, 2015 WL 3430090, at *13 (Tenn. Ct. App.
May 29, 2015). Serenity has been in foster care for over two years. But her foster
parents are her great-grandparents. And she has a meaningful relationship with Mother.
See In re P.G., No. M2017-02291-COA-R3-PT, 2018 WL 3954327, at *17 (Tenn. Ct.
App. Aug. 17, 2018) (“[W]hether a meaningful relationship exists is often a strong factor
in determining the child’s best interests.”). Mother has made significant positive changes
in her lifestyle and living conditions. While she may not be ready to resume her role as
parent today, that is not the issue before us. See In re C.B.W., 2006 WL 1749534, at *8
(explaining that the denial of a petition to terminate parental rights does not automatically
return a child to the parent’s custody). We simply hold that DCS failed to prove, by clear
and convincing evidence, that terminating Mother’s parental rights was in the child’s best
interest.
IV.
Although the evidence supporting one statutory ground for termination was clear
and convincing, we conclude that DCS failed to carry its burden of proving that
termination of Mother’s parental rights was in the child’s best interest by the same
measure of proof. So we reverse the termination of parental rights.
_________________________________
W. NEAL MCBRAYER, JUDGE
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