In Re Seth B.

09/14/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 1, 2017
IN RE SETH B., ET AL.
Appeal from the Juvenile Court for Sevier County
No. 16-000175, 16-000176, 16-000178, 16-000179 Dwight E. Stokes, Judge
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No. E2017-00173-COA-R3-PT
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This is a termination of parental rights case. Mother/Appellant appeals the termination of
her parental rights to the minor children on the grounds of: (1) abandonment by an
incarcerated parent by wanton disregard; (2) abandonment by willful failure to provide a
suitable home; (3) failure to substantially comply with the reasonable requirements of the
permanency plan; and (4) persistence of the conditions that led to the children’s removal
from Mother’s home. Mother also appeals the trial court’s finding that termination of her
parental rights is in the children’s best interests. Father/Appellant appeals the termination
of his parental rights to the minor children on the grounds of: (1) abandonment by willful
failure to provide a suitable home; (2) failure to substantially comply with the reasonable
requirements of the permanency plan; and (3) persistence of conditions that led to the
children’s removal from Father’s home. Father also appeals the trial court’s finding that
termination of his parental rights is in the children’s best interests. Because grounds for
termination of both Mother’s and Father’s parental rights are met by clear and convincing
evidence, and there is also clear and convincing evidence that termination of Mother’s
and Father’s parental rights is in the best interests of the children, we affirm.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and W. NEAL MCBRAYER, JJ., joined.
Robert L. Huddleston, Maryville, Tennessee, for the appellant, Antwoine O.; and
Elizabeth A. Brady, Sevierville, Tennessee, for the appellant, Elizabeth E.
Herbert H. Slattery, III, Attorney General and Reporter; and Brian A. Pierce, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Background
This case concerns four minor children, Seth B. (d.o.b. January 2003), Darius E.
(d.o.b. May 2005), Damian O. (d.o.b. March 2008) and Seriah O. (d.o.b. January 2011)
(together “the Children”).1 Elizabeth E. (“Mother”) is the mother of all four children.
Antwoine O. (“Father”) is the father of Damian O. and Seriah O. Mother and Father
were never married,2 but Father is listed on Damian O.’s and Seriah O.’s birth certificates
and has held himself out as their father.3 Mother and Father have been in an on-again-
off-again relationship for eleven (11) years. Although Seth B. and Darius E. are not
Father’s biological or adopted children, he considers himself to be their father.4 As
discussed, infra, all of the children have behavioral issues, which require individual
therapy.
The Department of Children’s Services’ (“DCS” or “Appellee”) removed the
Children from Mother and Father’s custody on November 5, 2014. When Child
Protective Services (“CPS”) investigators arrived at the motel where the family was
living, they observed unsuitable living conditions. Mother tested positive for
methamphetamine, suboxene, and marijuana. Father was not present when investigators
arrived, but, when CPS investigators were able to drug test him, he had a clean screen.
By order of November 7, 2014, the Sevier County Juvenile Court (“trial court”) granted
temporary custody of the Children to DCS.
By order of December 17, 2014, the trial court adjudicated the Children to be
dependent and neglected, finding, in relevant part, that:
Upon the evidence presented, statements of counsel and the record as a
whole, the [c]ourt finds that clear and convincing evidence has been
established pursuant to T.C.A. § 37-1-129(c) to show that the [C]hildren are
dependent and neglected within the meaning of the law; that removal of the
1
In termination of parental rights cases, it is the policy of this Court not to use the last names of
minor children and other parties in order to protect their identities.
2
The record demonstrates Mother may still be married to a man she married in 2001, though
there is only brief mention of this marriage in the record.
3
Neither Father nor Mother ever filed a petition to establish Father’s parentage to either child.
However, Father is listed on Damian O.’s and Seriah O.’s birth certificates. He also held himself out as
their father, and he entered into a permanency plan regarding both of the children, which establishes him
as the putative biological father of Damian O. and Seriah O. See Tenn. Code Ann. § 36-1-117(c)(4)-(6);
see also Tenn. Code Ann. § 36-2-304(a)(4).
4
At the time of trial, the State believed Seth B.’s father was Aaron B. Even though Aaron B. was
listed in the termination petition, he had not been served at the time of the final hearing, and DCS did not
pursue termination of his parental rights at that time. The only parties to the termination at issue on
appeal are Elizabeth E. and Antwoine O.
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[C]hildren is required pursuant to T.C.A. § 37-1-114(2); that there is no less
drastic alternative to removal; that it is contrary to the [C]hildren’s welfare
to remain in the care, custody or control of the parent(s); and that clear and
convincing evidence has been established to show that that [sic] the
[C]hildren are dependent and neglected for the following additional
reasons: at the time of the removal, all four of the children were in the care
and custody of their mother, [Elizabeth E.], and [Antwoine O.], the father
of Damian & [sic] Seriah. On 11-5-2014 [sic], the Department’s case
managers, Bree McGrane and James Bradley arrived at the family home . . .
responding to a referral of drug exposed child(ren). Mother, who appeared
disoriented at the time of the interview, met the case managers and
acknowledged that she would test positive on a drug screen for Suboxene.
[Mother] submitted to a urine drug screen and did test positive for Meth,
Suboxene, and THC. [Mother] informed the case managers that [Father]
had been using Meth and Suboxene with her.
Mother had recently been admitted in-patient to Peninsula for five days to
address her mental health needs.
[Father] had recently lost his job but as of November 5, 2014 he was
working with a friend, cleaning cabins. The case manager(s) spoke to him
on the telephone and he acknowledged that if he took a drug screen he
would test positive for THC and maybe a pain pill. When he did arrive at
the home and consent to a drug screen, his urine was clear and he tested
negative for all substances.
The case managers observed the home to be in poor conditions; [sic] i.e. the
home was filled with roaches, dirty dishes, limited food for the [C]hildren,
and refuse lying about the home.
During the pendency of this case, there were two DCS case managers assigned to
the family, Maureen DiRoma and Katie Rudder. Ms. DiRoma was the initial case
manager, and Ms. Rudder took over as case manager when Ms. DiRoma left DCS in
April 2016. DCS worked with Mother and Father to establish two permanency plans.
The first permanency plan was entered on December 2, 2014, and the second permanency
plan was entered on August 10, 2015. Both plans were later ratified by the trial court.
Concerning the services DCS provided, the record shows that DCS contracted
with Holston Home in July 2015 to provide services to the parents and the Children.
Tommy Delbridge was the caseworker from Holston Home assigned to the family. DCS
also assisted Mother and Father in obtaining a suitable home in August 2016, but the
parents were soon evicted from this home for failing to pay rent. Both parents lived a
transient lifestyle during the pendency of this case, and neither parent could provide
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evidence that he or she was able to maintain stable, legal employment for more than a
few consecutive weeks. Throughout these proceedings, Mother has continued to struggle
with her drug addiction. Father has left Mother on occasion only to return. He has
continued to give Mother money to support her drug habit. Father testified that after
receiving a settlement in a personal injury case, he gave the money to Mother, and she
used it to buy drugs.
On February 4, 2016, DCS filed its petition to terminate Mother and Father’s
parental rights. DCS sought termination of Mother’s parental rights on the grounds of:
(1) abandonment by wanton disregard by an incarcerated parent; (2) abandonment by
incarcerated parent by failure to support;5 (3) abandonment by failure to provide a
suitable home; (4) substantial noncompliance with the permanency plan; and (5)
persistence of conditions. DCS sought termination of Father’s parental rights on the
grounds of: (1) abandonment by failure to provide a suitable home; (2) substantial
noncompliance with the permanency plan; and (3) persistence of conditions.
Mother’s drug addiction and unaddressed mental health issues and Father’s
inability to separate himself from her for the benefit of the Children are the primary
concerns in this case. Even after filing the petition to terminate parental rights, DCS
continued to work with the Appellants. Mother was in rehab four (4) times during the
pendency of this case. At the time of trial, Mother was still struggling with drug
addiction. During the first day of testimony, Mother was in withdrawal from
methamphetamine.6 The second day of trial Mother testified by telephone from a
rehabilitation facility. While Father made strides to separate himself from Mother, in his
testimony, he indicated that he could not leave her for more than two weeks. At the
November 23, 2016 trial, Father testified that he had employment and had been living in
Ohio for two weeks. Prior to trial, Father failed to mention his move or employment
status to DCS.
By order of January 23, 2017, the trial court terminated Mother’s parental rights
on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard; (2)
abandonment by willful failure to provide a suitable home; (3) failure to substantially
comply with the reasonable requirements of the permanency plan; and (4) persistence of
the conditions that led to the Children’s removal from Mother’s home. The trial court
terminated Father’s parental rights on the grounds of: (1) abandonment by willful failure
to provide a suitable home; (2) failure to substantially comply with the reasonable
requirements of the permanency plan; and (3) persistence of conditions that led to the
Children’s removal from Father’s home. The trial court also found, by clear and
5
In its closing arguments DCS conceded this ground, and the trial court did not rely on it in
terminating Mother’s parental rights. Therefore, we will not address this ground.
6
The first day of the final trial took place on October 28, 2016. The second day of trial took
place on November 23, 2016.
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convincing evidence, that termination of Appellants’ parental rights was in the Children’s
best interests. Mother appealed on January 23, 2017, and Father appealed on January 24,
2017. Both Appellants signed their notices of appeal. Tenn. Code Ann. § 36-1-124(d).
II. Issues
Mother raises five issues for review, which we restate as follows:
1. Whether the trial court erred in terminating Mother’s parental rights on the
ground of abandonment by wanton disregard by an incarcerated parent?
2. Whether the trial court erred in terminating Mother’s parental rights on the
ground of abandonment by failure to provide a suitable home?
3. Whether the trial court erred in terminating Mother’s parental rights on the
ground of substantial noncompliance with the permanency plan?
4. Whether the trial court erred in terminating Mother’s parental rights on the
ground of persistence of conditions?
5. Whether the trial court erred in finding that termination of Mother’s
parental rights is in the best interests of the Children?
Father raises four issues as stated in his brief:
1. Whether the trial court properly found that the ground for termination of
parental rights for abandonment due to failing to provide a suitable home
by [Father] was shown by clear and convincing evidence, with specific
reference to the requirement that the Department must provide reasonable
efforts equaling or exceeding that of a parent within the requisite time
period?
2. Whether the trial court properly found that the ground for termination of
parental rights for noncompliance with the permanency plans by [Father]
was shown by clear and convincing evidence?
3. Whether the trial court properly found that the ground for termination of
parental rights for persistent conditions was shown by clear and convincing
evidence?
4. Whether the trial court properly concluded that it was in the best interests
of the children to have the parental rights of [Father] terminated at this
time, with specific reference to the lack of pre-adoptive home in this case?
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III. Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 citing Santosky v. Kramer, 455 U.S. 745
(1982). Our termination statutes identify “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 grounds on which termination proceedings can be brought.” In re W.B., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7
(Tenn. Ct. App. Apr. 29, 2005) citing Tenn. Code Ann. § 36-1-113(g). A person seeking
to terminate parental rights must prove both the existence of 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 D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-
113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes
that the truth of the facts asserted is highly probable . . . and eliminates any serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.” In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004), perm. app. denied (Tenn. July
12, 2004). Such evidence “produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the facts sought to be established.” Id. at 653.
In light of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). 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 must 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 Bernard T., 319 S.W.3d 586, 596-97
(Tenn. 2010). 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).
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IV. Grounds for Termination of Parental Rights
Although only one ground must be proven by clear and convincing evidence in
order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this
Court to review every ground relied upon by the trial court to terminate parental rights in
order to prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251
n.14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.
A. Abandonment
The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of abandonment by an incarcerated parent by
wanton disregard and failure to provide a suitable home pursuant. Tenn. Code Ann. § 36-
1-113(g)(1); Tenn. Code Ann. § 36-1-102(1)(A)(ii); and Tenn. Code Ann. § 36-1-
102(1)(A)(iv). The trial court found, by clear and convincing evidence, that Father’s
parental rights should be terminated on the ground of abandonment by failure to provide
a suitable home. In pertinent part, Tennessee Code Annotated Section 36-1-113(g)
provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
Tenn. Code Ann. § 36-1-113(g)(1).
1. Abandonment by Incarcerated Parent by Wanton Disregard Vis a Vis Mother
Tennessee Code Annotated Section 36-1-102 defines “abandonment,” in relevant
part as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
***
(iv) A parent ... is incarcerated at the time of the institution of an action or
proceeding to declare a child to be an abandoned child, or the parent ... has
been incarcerated during all or part of the four (4) months immediately
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preceding the institution of such action or proceeding, and ... the parent ...
has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(iv). Tennessee Code Annotated Section 36-1-
102(1)(A)(iv) applies only where “the parent . . . has been incarcerated during all or part
of the four (4) months immediately preceding the institution of [a parental termination]
proceeding.” In this case, the trial court made the following specific findings concerning
the ground of abandonment by an incarcerated parent by wanton disregard:
At the time of the filing of the Department’s petition, [Mother] was
incarcerated or had been incarcerated for some of the last four months prior
to February 4, 2016. She admitted this.
Here, DCS filed the petition to terminate parental rights on February 4, 2016. Mother
was incarcerated from August 13, 2015 until November 10, 2015, which is within the
four months preceding the filing of DCS’ petition to terminate her parental rights.
Therefore, the trial court correctly held that the abandonment definition of Section 36-1-
102(1)(A)(iv) was applicable. See In re Keith W., No. W2016-00072-COA-R3-PT, 2016
WL 4147011, at *6 (Tenn. Ct. App. Aug. 3, 2016) (holding that the incarcerated parent
definitions for abandonment did not apply because the father was not incarcerated at or in
the four months preceding the filing of the termination petition); In re Navada N., No.
M2015-01400-COA-R3-PT, 2016 WL 3090908, at *14 (Tenn. Ct. App. May 23, 2016)
(describing incarceration within the four months preceding the filing of the termination
petition as a “condition precedent” to the application of the abandonment definitions
under section 36-1-102(1)(A)(iv)).
Concerning what constitutes wanton disregard, for purposes of this ground, this
Court has explained that:
Incarceration alone is not conclusive evidence of wanton conduct prior to
incarceration. In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct. App. 2005).
Rather, “incarceration serves only as a triggering mechanism that allows the
court to take a closer look at the child’s situation to determine whether the
parental behavior that resulted in incarceration is part of a broader pattern
of conduct that renders the parent unfit or poses a risk of substantial harm
to the welfare of the child.” Id. The statutory language governing
abandonment due to a parent’s wanton disregard for the welfare of a child
“reflects the commonsense notion that parental incarceration is a strong
indicator that there may be problems in the home that threaten the welfare
of the child” and recognizes that a “parent’s decision to engage in conduct
that carries with it the risk of incarceration is itself indicative that the parent
may not be fit to care for the child.” Id.
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In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *5 (Tenn. Ct. App.
Dec. 22, 2009). We further note that the ground of abandonment by wanton disregard
does not require that the conduct at issue occur within the four months prior to
incarceration. In re Audrey S., 182 S.W.3d at 865 (“This test has no analog to the first
statutory definition of abandonment, and it is not expressly limited to any particular four-
month period.”). Rather, Tennessee courts may consider the parent’s behavior throughout
the child’s life, even when the child is in utero. See In re A.B., No. E2016-00504-COA-
R3-PT, 2017 WL 111291, at *10 (Tenn. Ct. App. Jan. 11, 2017) (“For a child in utero,
we primarily have found wanton disregard where a parent, after learning of the
pregnancy, commits the crime for which he or she is subsequently incarcerated.”); but see
In re Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct.
App. June 9, 2015) (concluding that father’s actions that led to his incarceration did not
constitute wanton disregard for the child’s welfare because father did not know that
mother was pregnant with his child). “The actions that our courts have commonly found
to constitute wanton disregard reflect a ‘me first’ attitude involving the intentional
performance of illegal or unreasonable acts and indifference to the consequences of the
actions for the child.” In re Anthony R., 2015 WL 3611244, at *3.
In its order terminating Mother’s parental rights, the trial court found, in relevant
part, that:
[Mother’s] incarceration serve[d] only as the triggering event though; the
[c]ourt has considered her pre-incarceration behavior and [found] that the
State has carried its burden that [M]other had numerous convictions for
DUI, possession, assault, violation(s) of probation, leaving the scene, other
serious driving violations. State did establish wanton disregard.
[Mother’s] criminal offenses were coupled with chronic drug use over a
period of several years . . . in looking at the totality of the circumstances it
all relates to her inability to get away from the drug culture and her failure
to fulfill her responsibilities. . . . She has abandoned her children in all
aspects of parenting and her actions reflect little regard if any for the
wellbeing of [the Children].
Turning to the record, from the time Seth B. was born, in January 2003, Mother
engaged in criminal behavior. In July 2003, Mother was arrested for domestic assault
and was sentenced to public service and anger management classes. Darius E. was born
in May 2005. In September 2006, Mother was arrested for DUI and later pled guilty to
that offense. Damian O. was born in March 2008. In the same month, Mother pled
guilty to violating her probation. Seriah O. was born in January 2011. In September
2011, Mother was cited for driving with a suspended license and for having no insurance.
She was later convicted of those offenses. In October 2011, Mother again pled guilty to
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violation of her probation. In December 2012, Mother was found in possession of
schedule IV drugs and later pled guilty. In June 2013, Mother kicked out the back
window of a police car when she was arrested on two outstanding warrants; she
subsequently pled guilty to vandalism. In the same incident, Mother struggled to pull
away from the arresting officer’s control and was charged with (and later pled guilty to)
resisting arrest. In August 2013, Mother again pled guilty to violating her probation. In
August 2014, Mother was stopped for driving with a suspended license and no insurance
and for leaving the scene of an accident; she later pled guilty to those charges. The
Children were in the back seat of the car at the time of this incident. In November 2014,
the same month DCS was awarded custody of the Children, Mother spit in a police
officer’s face after being transported to jail for public intoxication and later pled guilty to
assault. Subsequently, Mother pled guilty to another violation of probation in August
2015. Mother was incarcerated from August 2015 until November 2015. The petition to
terminate Mother’s parental rights was filed on February 4, 2016.
Most of Mother’s frequent arrests can be linked to her drug addiction. In fact,
Mother concedes this in her appellate brief—that drug use has contributed to her criminal
behavior. The record clearly establishes that Mother has a long history of drug abuse.
Mother testified that she overdosed on methamphetamine when she was 17 and did not
use again for 12 years. We can infer from Mother’s testimony that she resumed using
methamphetamine in 2013, after the Children were born. Trial Exhibit 20 is an October
2013 affidavit from Mother’s Probation Officer which states, in pertinent part, that:
[Mother] is not in compliance with court ordered treatment. [Mother]
failed the clean drug screen policy by testing positive for Cocaine, Opiates,
Oxycodone and THC.
With regard to parental drug use as a factor in determining wanton
disregard, we have explained:
Numerous cases have held that a parent’s previous criminal conduct,
coupled with a history of drug abuse, constitutes a wanton disregard for the
welfare of the child. See, e.g., State v. J.M.F., No. E2003-03081-COA-R3-
PT, 2005 WL 94465, at *8 (Tenn. Ct. App. Jan. 11, 2005); In re C. LaC.,
No. M2003-02164-COA-R3-PT, 2004 WL 533937, at *7 (Tenn. Ct. App.
Mar. 17, 2004); State v. Wiley, No. 03A01-9903-JV-00091, 1999 WL
1068726, at *7 (Tenn. Ct. App. Nov. 24, 1999); In the Matter of Shipley,
No. 03A01-9611-JV-00369, 1997 WL 596281, at *5 (Tenn. Ct. App. Sept.
29, 1997). “[P]robation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or
supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S.,
182 S.W.3d at 867-68.
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In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *5 (Tenn. Ct. App.
Dec. 22, 2009). Despite her testimony that she wants to be a parent to these Children, the
record clearly indicates that drugs, not her Children, have been her primary priority.
Mother has had many opportunities to pursue a drug-free life but has not availed herself
of these opportunities. Instead, she continues, even up to the date of the hearing on the
petition to terminate her parental rights, to use illicit drugs. Her addiction has caused
great detriment. She has been arrested, incarcerated, and has lost custody of her
Children, yet her drug use persists. The record clearly establishes that Mother has
engaged in conduct prior to her incarceration and throughout these proceedings that
evinces a wanton disregard for the welfare of the Children. Accordingly, we affirm the
trial court’s order terminating Mother’s parental rights on the ground of abandonment by
an incarcerated parent by wanton disregard.
2. Abandonment by Willful Failure to Provide a Suitable Home Vis a Vis Mother
and Father
The trial court found that both Mother and Father abandoned the Children by
willful failure to provide a suitable home. Tennessee Code Annotated Section 36-1-102
defines “abandonment,” in relevant part as follows:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
***
(ii) The child has been removed from the home of the parent or parents or a
guardian or guardians as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as defined
in § 37-1-102, and the child was placed in the custody of the department or
a licensed child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds, that the
department or a licensed child-placing agency made reasonable efforts to
prevent removal of the child or that the circumstances of the child's
situation prevented reasonable efforts from being made prior to the child's
removal; and for a period of four (4) months following the removal, the
department or agency has made reasonable efforts to assist the parent(s) or
guardian(s) to establish a suitable home for the child, but that the parent(s)
or guardian(s) have made no reasonable efforts to provide a suitable home
and have demonstrated a lack of concern for the child to such a degree that
it appears unlikely that they will be able to provide a suitable home for the
child at an early date. The efforts of the department or agency to assist a
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parent or guardian in establishing a suitable home for the child may be
found to be reasonable if such efforts exceed the efforts of the parent or
guardian toward the same goal, when the parent or guardian is aware that
the child is in the custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii).
Mother and Father argue that DCS failed to make reasonable efforts to assist them
in establishing a suitable home for the Children. As noted by the trial court, Tennessee
Code Annotated Section 36-1-102(1)(A)(ii) requires DCS to make “reasonable efforts”
related to housing during the relevant time period.7 Here, the trial court found, in
relevant part:
The Sevier County Juvenile Court adjudicated these [C]hildren as
dependent and neglected on December 17, 2014. The [C]hildren were
removed due to D&N from both of these people. It is clear that DCS
provided reasonable efforts after removal. DCS worked with [M]other and
tried to maintain communication with her. DCS had a constant willingness
to work with the parents and there was clear communication from the
Department. DCS provided transportation for [M]other. DCS made efforts
with respect to both parents even though the parents were very difficult to
work with, because of the drug use that had continued on with both parents
and extremely substantial use by [M]other for many months.
With regard to DCS’ reasonable efforts, we have held that DCS’ “efforts need not
be ‘Herculean,’” but “[r]easonable efforts [must] entail more than simply providing
parents with a list of service providers and sending them on their way. The Department’s
employees must use their superior insight and training to assist parents with the problems
[DCS] has identified in the permanency plan, whether the parents ask for assistance or
not.” State Dept. of Children's Servs. v. Estes, 284 S.W.3d 790, 801 (Tenn. Ct. App.
Dec. 30, 2008); see also In re Jamel H., No. E2014-02539-COA-R3-PT, 2015 WL
4197220, at *6-7 (Tenn. Ct. App. July 13, 2015) (reversing the ground of abandonment
by failure to provide a suitable home where “the record is devoid of any evidence that
DCS made any efforts related to housing during the relevant time period”); In re
Josephine E.M.C., No. E2013-02040-COA-R3-PT, 2014 WL 1515485, at *19-20 (Tenn.
7
Although the Tennessee Supreme Court has overruled caselaw requiring “DCS to prove by clear
and convincing evidence that it made reasonable efforts to reunify as a precondition to termination of
parental rights,” In re Kaliyah S., 455 S.W.3d 533, 555 n.34 (Tenn. 2015), pursuant to the requirements
in Tennessee Code Annotated Section 36-1-102(1)(A)(ii), when termination is sought on the ground of
abandonment for failure to establish a suitable home, DCS must make reasonable efforts “to assist the
parent… to establish a suitable home for the child….” See In re Yariel S., et al., No. E2016-00937-
COA-R3-PT, 2017 WL 65469 (Tenn. Ct. App. Jan. 6, 2017), at *6 (concluding that the record lacked any
evidence as to DCS’ efforts related to housing and reversing the abandonment ground for termination).
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Ct. App. Apr. 17, 2014) (stating that there was not clear and convincing evidence that
DCS made reasonable efforts to assist mother in establishing a suitable home where DCS
offered to evaluate mother's future housing for safety but appeared to provide no other
services); In re Isabel V.O., No. M2012-00150-COA-R3-PT, 2012 WL 5471423, at *8-9
(Tenn. Ct. App. Nov. 8, 2012) (finding insufficient efforts to assist parents in obtaining
suitable housing where DCS provided lists of housing services and resources to parents);
In re C.H.E.H., No. E2007-01863-COA-R3-PT, 2008 WL 465275, at *11 (Tenn. Ct.
App. Feb. 21, 2008) (finding that DCS put forth no evidence of its efforts to help mother
obtain housing at any time and reversing the ground of abandonment by failure to provide
a suitable home, where mother was released from incarceration and obtained family
housing services by her own efforts); In re K.E.R., No. M2006-00255-COA-R3-PT,
2006 WL 2252746, at *7 (Tenn. Ct. App. Aug. 3, 2006) (reversing the ground of
abandonment by failure to provide a suitable home, where mother’s child was removed
while she was incarcerated, and it was “unclear whether the Department made any efforts
to help [m]other procure housing during this particular period” of incarceration).
The record clearly indicates that DCS’ effort exceeded those of the parents.
“[T]he burden of family reunification does not lie entirely with DCS as reunification is a
‘two-way street.’” In re C.L.M., No. M2005-00696-COA-R3PT, 2005 WL 2051285, at
*9 (Tenn. Ct. App. Aug. 25, 2005) citing State Dept. of Children's Servs. v. Belder, 2004
WL 1553561, *9 (Tenn. Ct. App. July 9, 2004). The record shows that, although DCS
referred both parents to programs to address their respective drug use and parenting
skills, Mother and Father declined the referrals and scheduled their own treatment and
parenting classes. Ms. DiRoma drove Mother to a few appointments, but the parents
usually found their own transportation. However, the record indicates that DCS
contracted with Holston Home to provide various services to the parents and the
Children. These services included such as family therapy, individual therapy for the
Children, transportation for the family, and supervised visits. Contracting for this service
is evidence that DCS made reasonable efforts to assist the family. The record also shows
that DCS worked with Father and encouraged him to separate from Mother so he could
establish a suitable living environment for the Children. DCS caseworker, Ms. Rudder,
transported Mother to rehab. Ms. Rudder also testified that, in August 2016, she helped
Mother and Father obtain housing in a three-bedroom trailer by obtaining funds through
the County Advisory Board. However, Ms. Rudder testified that the parents were evicted
from that residence in early October 2016 for failure to pay rent. The record clearly and
convincingly supports the trial court’s finding that DCS made reasonable efforts to assist
the parents in finding and maintaining suitable housing.
Despite DCS’ efforts to assist Appellants in procuring sufficient housing, the trial
court found, in pertinent part, that:
[Mother] and [Father] did not have a stable situation and [M]other was not
ever be [sic] successful with drug rehab despite several failed attempts.
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[Father] condoned her drug use or engaged in drug use himself. Parents
depleted funds on drugs when they did have money coming in. DCS
continued efforts even after the first four months to provide transportation
to connect the parents to available services such as Team Dad. DCS case
manager, Katie Rudder, drove [Mother] to rehab facilities and the contract
agency worker, Tommy Delbridge, transported the [C]hildren and
supervised visitations. DCS invited parents to CFTMs and FCRB and
referred parents to free parenting classes. DCS’ efforts greatly exceeded
the efforts of the parents. The parents often became incommunicado with
their counsel and failed to follow up with services. They did not ultimately
have a safe place to live or cease using drugs. The parents failed to attend
meetings and court. Parents could not provide any kind of environment
suitable for the [C]hildren. Mother’s recent drug use has been very severe
as reflected by her behavior on the witness stand.
This Court was particularly concerned about the significant fact of the
parents receiving a settlement from a personal injury incident which
[M]other spent on drugs. [Father] should have been well-aware of how the
money was being spent. There was some testimony that he knew. By the
time of trial, [F]ather testified that he had established housing and
employment for only two weeks prior to Nov 23. This was too little too
late.
From our review of the record, there is clear and convincing evidence to support
the trial court’s findings. Mother and Father have engaged in a transient lifestyle since
the Children were born. Both parents have changed residences several times.
Furthermore, the record shows that Mother continues in her drug addiction, and Father
continues to enable her. Father’s complacency, in this regard, has hindered him from
establishing a suitable home away from Mother. When Father obtained money in the
past, he has, on occasion, given it to Mother who used it to buy drugs. Also, on several
occasions Father left Mother only to return to the same drug environment. This Court has
stated that a “suitable home requires more than a proper physical living location.” State v.
C. W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov.29,
2007). It requires that the home be free of drugs and domestic violence. Id. The pattern
of behavior, by and between Mother and Father, clearly demonstrates that residential
stability is not forthcoming. While there is evidence that Mother and Father took
parenting classes, that Mother attended rehab on several occasions, that Father had some
employment, and that Mother had a brief period of employment, the record is clear that
the underlying issues, which prevented both parents from obtaining and maintaining
suitable housing, still persist. From our review, there is clear and convincing evidence to
support the trial court’s termination of Mother and Father’s parental rights on the ground
of abandonment by failure to provide a suitable home for the Children.
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B. Failure to Substantially Comply with the Permanency Plan Vis a Vis Mother and
Father
The trial court found, by clear and convincing evidence, that Mother and Father’s
parental rights should be terminated on the ground of failure to substantially comply with
the requirements of the permanency plan pursuant to Tennessee Code Annotated Section
36-1-113(g)(2). Tennessee Code Annotated Section 36-1-113(g)(2) provides that a
parent’s rights may be terminated when “[t]here has been substantial noncompliance by
the parent . . . with the statement of responsibilities in a permanency plan.”
“[T[he permanency plans are not simply a series of hoops for the biological parent
to jump through in order to have custody of the children returned.” In re C.S., Jr., et al.,
No. M2005-02499-COA-R3-PT, 2006 WL 2644371, at *10 (Tenn. Ct. App. Sept. 14,
2006). Rather,
the requirements of the permanency plan are intended to address the
problems that led to removal; they are meant to place the parent in a
position to provide the children with a safe, stable home and consistent
appropriate care. This requires the parent to put in real effort to complete
the requirements of the plan in a meaningful way in order to place herself in
a position to take responsibility for the children.
Id.
With regard to whether the requirements of the permanency plans were reasonable
and related to remedying the conditions that led to the Children’s removal, the trial court
found that the responsibilities set out in the permanency plans were reasonable and
“related to remedying the conditions which necessitate[d] foster care placement.”
Neither party appeals this finding, and the record supports this finding. Accordingly, we
turn to the question of whether Appellants substantially complied with their respective
requirements under the permanency plans.
As discussed by this Court in In re M.J.B., 140 S.W.3d 643 (Tenn. Ct. App.
2004):
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and
tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
113(g)(2), the Department must demonstrate first that the requirements of
the permanency plan are reasonable and related to remedying the conditions
that caused the child to be removed from the parent’s custody in the first
place, In re Valentine, 79 S.W.3d 539, 547 (Tenn. 2002); In re L.J.C., 124
S.W.3d 609, 621 (Tenn. Ct. App. 2003), and second that the parent’s
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noncompliance is substantial in light of the degree of noncompliance and
the importance of the particular requirement that has not been met. In re
Valentine, 79 S.W.3d at 548-49; In re Z.J.S., No. M2002-02235-COA-R3-
JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003). Trivial,
minor, or technical deviations from a permanency plan’s requirements will
not be deemed to amount to substantial noncompliance. In re Valentine,
79 S.W.3d at 548.
Id. at 656-57. As discussed by the Tennessee Supreme Court,
[s]ubstantial noncompliance is not defined in the termination statute. The
statute is clear, however, that noncompliance is not enough to justify
termination of parental rights; the noncompliance must be substantial.
Black’s Law Dictionary defines “substantial” as “[o]f real worth and
importance.” Black’s Law Dictionary 1428 (6th ed. 1990). 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.
Because Mother and Father had different permanency plan requirements, we will
analyze each parent’s compliance in turn. As noted above, the trial court ratified two
permanency plans. The first permanency plan (“Plan 1”) is dated December 2, 2014 and
was ratified on February 4, 2015. Mother was incarcerated when Plan 1 was made and
did not participate in making Plan 1. However, Mother was present the day the trial court
ratified Plan 1, and she agreed with the requirements of Plan 1. Father participated in
drafting Plan 1 and signed Plan 1. The second permanency plan (“Plan 2”) is dated
August 10, 2015 and was ratified on October 7, 2015. Both parents participated in
drafting Plan 2.
Mother
Plan 1 addresses Mother’s untreated mental health issues. Under Plan 1, Mother
was required to complete a mental health assessment and “follow recommendations.” She
was also required to complete an assessment for psychotropic medication, to “follow
recommendations,” and to sign releases for DCS. These requirements were also included
in Plan 2.
There is conflicting testimony regarding whether Mother completed a mental
health assessment. Ms. Rudder testified that Mother told her that she completed the
mental health assessment and that the recommendation was for Mother to continue
individual therapy; however, Ms. Rudder received no proof that Mother completed the
assessment. Mother testified that she completed mental health assessments in 2015 and
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2016. Although there was evidence that Mother sought individual therapy, in her
testimony, Mother admitted that she was not engaging in regular treatment for her mental
health issues. This Court concludes that Mother did not substantially comply with this
requirement.
The second concern addressed by the permanency plans was Mother’s significant
history of illegal drug use. To address this issue, Mother was required to complete a drug
and alcohol assessment, follow all recommendations, and sign releases for DCS. In
addition, Mother was required to submit to random drug screens. These requirements
were also included in Plan 2, with the additional requirement that Mother would begin
intensive outpatient treatment when she was released from jail.
Turning to the record, Ms. DiRoma testified that Mother completed an alcohol and
drug assessment. The recommendation, from the drug and alcohol assessment, was for
Mother to participate in a residential drug treatment program, after which she would
participate in an Intensive Outpatient Program and Narcotics Anonymous (“NA”). The
record indicates that Mother completed the substance abuse rehab treatment in May 2015,
and she passed drug screens administered around the same time. Mother also attended a
few NA meetings. However, despite Mother’s initial efforts, she did not complete
outpatient treatment prior to the hearing on the petition to terminate her parental rights.
Therefore, we conclude that the evidence does not preponderate against the trial court’s
finding that Mother did not substantially comply with this requirement.
The permanency plans also addressed Mother’s criminal issues. Under the plans,
Mother would “resolve any and all criminal charges and not incur any further criminal
issues/charges.” As set out above, despite the requirement that she not incur further
criminal charges, Mother’s continuing criminal arrests, incarcerations and probation
violations clearly indicate substantial noncompliance with this requirement.
To address Mother’s inability to safely parent the Children, Mother was required
to complete a parenting assessment and to demonstrate an ability to parent by engaging in
therapeutic visitation with the Children. Turning to the record, Ms. DiRoma testified that
Mother “completed some parenting form,” but she didn’t “know if it was an actual
assessment.” Mother testified that she completed a parenting assessment and took
parenting classes. Ms. DiRoma confirmed that Mother completed parenting classes.
Mother engaged in some visits with the Children. Although she did not always use good
parenting techniques, causing the supervisors to intervene, she was present with the
Children. It appears that Mother substantially complied with this requirement.
The permanency plans also addressed the unsuitable home environment Mother
created for the Children. To remedy this issue, Mother was required to obtain and
maintain appropriate and hygienic housing. In addition, Mother was required to obtain
and maintain a legal source of income and to provide proof of reliable transportation. In
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Plan 2, DCS reiterated this concern stating that “[Mother] is homeless and admits to
sleeping in people’s cars, street, tents and various people’s couches.” Plan 2 notes that
DCS “would provide each parent the necessary documentation for them to apply for
subsidized housing.” The record indicates that it was not until December 29, 2015 that
DCS provided the housing information contemplated in Plan 2, i.e. the Sevier County
Resource Guide. However, Ms. Rudder testified that she worked with both parents to
help them secure suitable housing. As discussed above, although DCS helped the parents
procure housing, they were subsequently evicted. Concerning employment, during the
pendency of this case, Mother attempted to receive disability payments but was denied.
Thereafter, Mother worked sporadically cleaning cabins, but she was unable to maintain
employment for any significant length of time. It is clear from the record that Mother
failed to substantially comply with this requirement.
From the totality of the circumstances and the record as a whole, we conclude that
there is clear and convincing evidence to support the trial court’s finding that Mother
failed to subsequently comply with the reasonable requirements of the permanency plans.
Father
In Plan 1, DCS first addressed Father’s “historical[] . . . use[] [of] illegal
substances and prescription[s] . . . without [doctors’] authorization.” To address this
issue, Father was required to obtain an “A/D assessment and sign releases to DCS to
verify completion, submit to random drug screens and follow recommendation of
assessment.” This requirement was also included in Plan 2. From the record, it is
difficult to discern what steps, if any, Father took to address his alleged drug use.
Regardless, there is little evidence to suggest that Father actually abused drugs.
Testimony concerning drug use was directed toward Mother’s use. In November 2014,
Father passed a random drug screen. However, in February 2016, Father tested positive
for marijuana. During his testimony, Father admitted to using marijuana. In a June 2016
test, Father showed negative for all illicit drugs. In short, the evidence does not clearly
establish that Father has a drug problem or at least a drug problem requiring intensive
rehabilitation. Accordingly, we conclude that his failure to comply with the requirements
addressing drug use cannot form the basis for termination of his parental rights.
The primary concern with Father’s ability to parent these Children stems from the
unsuitable home environment. As discussed above, DCS made reasonable efforts to help
the parents obtain suitable housing. However, Ms. Rudder testified that Father did not
apply for housing assistance. Father obtained some furniture, and he further testified that
he had procured suitable housing in Ohio in November 2016. The hearing on the petition
to terminate his parental rights was also held in November 2016, but no evidence was
adduced to corroborate Father’s testimony or to prove the fitness of the Ohio residence.
Concerning Father’s employment, Ms. Rudder testified that she received two pay stubs
from Father from March 2016, but she had not received proof of legal income since that
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time. Father testified that he tried to keep a job and save money, but there was no
evidence that Father achieved this goal. Father testified that he would have stable
employment when he moved to Ohio. However, due to the fact that Father had only been
working in Ohio for the two weeks prior to the November 23, 2016 trial date, there was
no evidence that Father’s employment was sufficient or stable. More concerning is the
fact that Father’s attempts to leave Mother and to refrain from enabling her drug use have
not been consistent, and there was insufficient proof from which to infer that his move to
Ohio will prove otherwise.
With regard to this ground, the trial court’s found:
[The parents] were supposed to have a drug free home and attend meetings.
They did not complete the recommendations of the alcohol and drug
assessments they were supposed to complete. There was proof of erratic
conduct by the parents. The plan called for them to obtain and maintain
suitable housing. All proof that the Court has already cited . . . reflects that
they could not provide a stable home for the [C]hildren.
As discussed above, the record contains clear and convincing evidence to support
the trial court’s findings. Mother’s mental health and drug issues persist, as does her
criminal activity. As to Father, he continues to engage, with Mother, in a transient
lifestyle. To date, he has been unable to maintain stable housing or employment. Most
importantly, however, he has been unable to refrain from enabling Mother in her drug use
or to maintain his efforts to remove himself and the Children from her.
C. Persistence of Conditions
The trial court found, by clear and convincing evidence, that Mother and Father’s
parental rights should be terminated on the ground of persistence of the conditions that
led to the Children’s removal from their custody. Tenn. Code Ann. § 36-1-113(g)(3).
Tennessee Code Annotated Section 36-1-113(g)(3) defines persistence of conditions as
follows:
(3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions that in
all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child’s safe return to the
care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent(s) or
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guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable
and permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3). The purpose behind the “persistence of conditions”
ground for terminating parental rights 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 Arteria H., 326 S.W.3d 167,
178 (Tenn. Ct. App. 2010), overruled on other grounds by In re Kaliyah S., 455 S.W.3d
533 (Tenn. 2015).
In In re Audrey S., 182 S.W.3d 838, 872 (Tenn. Ct. App. 2005), this Court held
that based on the statutory text and its historical development, the ground of persistence
of conditions found in Tennessee Code Annotated Section 36-1-113(g)(3) provides a
ground for termination of parental rights only where the prior court order removing the
child from the parent’s home was based on a judicial finding of dependency, neglect, or
abuse. As set out in the juvenile court’s December 17, 2014, order, supra, the finding of
dependency and neglect, in this case, was based on drug use in the home, instability
created by Mother’s untreated mental health issues, the family’s unsuitable living
conditions, and Appellants’ unemployment.
In its order terminating Mother and Father’s parental rights, the trial court found
that DCS had proven, by clear and convincing evidence, that Mother and Father failed to
remedy the conditions that led to the Children’s removal from their custody, to-wit:
The [c]ourt finds by clear and convincing evidence that there is a
persistence of conditions in this matter, namely, the parents’ continuing
substance abuse. The adjudicatory order reflects a problem with drug
abuse. This [c]ourt agrees that the parents were not in a better place twenty
four months after removal but in a worse place.
The [C]hildren have been kept in this status of hope but continuously have
bitter letdowns because the [M]other and [F]ather remain in a culture of
drug use. Both parents are totally responsible for that. . . . on October 28,
2016, [Mother] came into court clearly under the influence and testified that
she had used drugs with [F]ather. Mother’s drugs were just as bad on the
date of hearings as it was in the beginning of the D&N case. . . . Although
the parents had some gains in housing in the summer of 2016 and [M]other
attempted rehab, the parents ultimately showed an unwillingness and an
inability to make long term progress.
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As discussed in detail above, there is clear and convincing evidence showing that
Mother is still addicted to drugs, has not properly addressed her mental health issues, and
has not established stable housing or employment. Likewise, there is proof that Father is
unable to acquire stable housing and employment. Furthermore, there is evidence to
suggest that Father is unable to separate himself from Mother so as to provide these
Children with a stable and drug-free home. Given the pattern of behavior by and between
the Appellants, there is little likelihood that the conditions that led to the Children’s
removal will be remedied at an early date. Accordingly, there is clear and convincing
evidence to support the trial court’s termination of Appellants’ parental rights on this
ground.
V. Best Interests
When at least one ground for termination of parental rights has been established,
the petitioner must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child’s best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at
194.
The Tennessee Legislature has codified certain factors that courts should
consider in ascertaining the best interest of the child in a termination of parental rights
case. These factors include, but are 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;
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(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
***
(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[.]
***
Tenn. Code Ann. § 36-1-113(i).
This Court has noted that “this list [of factors] is not exhaustive, and the statute
does not require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s rights is in the best interest of a child.” In re M.A.R.,
183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending on the circumstances of an
individual case, the consideration of a single factor or other facts outside the enumerated,
statutory factors may dictate the outcome of the best interest analysis. In re Audrey S.,
182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s 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. Thus, depending 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.
Moody, 171 S.W.3d at 194.
Concerning the Children’s best interests, the trial court found:
There is nothing to indicate that any additional time would assist the
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parents in remedying their drug use or housing situation. Even when they
obtained a substantial settlement, [Mother] wasted the money on drugs and
[F]ather condoned that.
It would be an [sic] unlikely that [M]other and [F]ather will resolve the
drug use or obtain suitable housing at any time in the near future. Normally
it would be a positive thing for the court to consider the good relationship
between the children and the parents, but this in effect gave and would
continue to give the [C]hildren false hope about the possibility of reuniting
with their parents. It is good for children to have a strong bond with their
parents but it becomes terribly damaging to the children, even traumatic for
the children, when the parents clearly and convincingly fail to remedy the
conditions which necessitated removal for such an extended period of time.
The court has noted that the [C]hildren have significant needs and are in a
safe placement and there is hope that an ICPC kinship placement may pan
out. There is also a possibility for the Department to find an adoptive
placement for the [C]hildren.
The record supports the trial court’s finding that termination of the Appellants’
parental rights is in the Children’s best interests. The Children have been in DCS custody
since November 2014. When they entered custody, the Children were 11, 9, 6, and 3.
Now, the Children are 14, 12, 9, and 6. The Children have spent a significant portion of
their lives in foster care while, to date, their parents have been unable to provide a stable
and secure environment for them, see discussion supra. Given the fact that the parents
continue in their detrimental patterns, it does not appear that postponing termination of
their parental rights will result in permanent change. Furthermore, the record shows that
all of the Children have some behavioral and/or physical issue. Children with special
needs require even more stability and care than children without special needs. The
record demonstrates that the Children are in a safe and stable foster home and school,
where each child is receiving individualized therapy for his or her needs. To remove
these Children from the only stable home they have known would likely cause detriment
to their emotional, psychological, or physical well-being.
Nonetheless, Father cites In re Kendra P., No. E2015-02429-COA-R3-PT, 2016
WL 4065491 (Tenn. Ct. App. July 28, 2016), to support his argument that, because the
foster parents have not indicated a desire to adopt the Children, it is not in their best
interests to terminate his parental rights. Father’s reliance on In re Kendra P. is
misplaced. Kendra P., unlike these Children, was approaching the age of majority so
potential adoption was not the deciding factor in that case. Regardless, adoption and
termination of parental rights are separate inquiries. Tenn. Code Ann. § 36-1-113(a),
(d)(3)(C)(ii), (g)(8)(A), (h)(1), (l)-(p); see State Dep't of Children's Servs. v. D.G.B., No.
E2001-02426-COA-R3-JV, 2002 WL 31014838, at *9 (Tenn. Ct. App. Sept. 10, 2002)
- 23 -
(juvenile court erred in refusing to terminate parental rights based in part on finding that
child was unadoptable and that termination was therefore not in the child's best interests;
while the evidence showed that future placement would be difficult because of the child's
physical and mental problems and relatively advanced age, it did not show that a future
adoption was impossible). Here, there is proof that neither Mother nor Father is capable
of caring for the Children in a stable, drug-free home. There is also evidence that the
Children’s behaviors are improving with individual therapy and counseling and the
support they receive from their foster parents. At this juncture, a safe and stable foster
home is what is in each child’s best interest. Accordingly, we conclude that the facts, as
found by the trial court, are supported by the preponderance of the evidence and clearly
and convincingly establish that termination of Mother and Father’s parental rights is in
the Children’s best interests.
VI. Conclusion
For the foregoing reasons, we affirm the order of the trial court terminating
Mother’s parental rights to all the Children and Father’s parental rights to Damian O. and
Seriah O. The case is remanded for such further proceedings as may be necessary and
are consistent with this Opinion. Costs of the appeal are assessed one-half to Appellant,
Elizabeth E., and one-half to Appellant, Antwoine O. Because Elizabeth E. and
Antwoine O. are proceeding in forma pauperis in this appeal, execution for costs may
issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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