In Re Kayleigh B.

03/27/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 18, 2020 Session
IN RE KAYLEIGH B. ET AL.
Appeal from the Juvenile Court for Blount County
No. 33056, 33057, 33058, 33059 Kenlyn Foster, Judge
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No. E2019-01153-COA-R3-PT
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Jennifer G. (“Mother”) and Brian B. (“Father”) appeal the termination of their parental
rights to their minor children, Kayleigh B., Layla B., Isaiah B., and Ja’Nyla B.
(collectively, “the Children”). In March 2018, the Tennessee Department of Children’s
Services (“DCS”) filed a petition to terminate the parents’ rights to the Children in the
Blount County Juvenile Court (“Juvenile Court”). Following a hearing in May 2019, the
Juvenile Court terminated Mother’s parental rights based on the statutory grounds of
abandonment by failure to provide a suitable home, abandonment by wanton disregard,
abandonment by failure to support prior to her incarceration, substantial noncompliance
with the permanency plan, and persistent conditions. The Juvenile Court also terminated
Father’s parental rights on the statutory grounds of abandonment by failure to support
prior to the petition’s filing and substantial noncompliance with the permanency plan.
The Juvenile Court further found that termination of Mother’s and Father’s parental
rights was in the Children’s best interest. Both Mother and Father timely appealed. We
reverse the statutory ground of abandonment by failure to support concerning Mother’s
parental rights. We affirm the Juvenile Court’s judgment in all other respects including
the termination of Mother’s and Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed as Modified; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Grae A. Hinds, Knoxville, Tennessee, for the appellant, Jennifer G.
James E. Corcoran, III, Knoxville, Tennessee, for the appellant, Brian B.
Herbert H. Slatery, III, Attorney General and Reporter, and Jeffrey D. Ridner, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
The Tennessee Department of Children’s Services (“DCS”) became involved with
Mother, Father, and the Children in July 2016.1 In July 2016, DCS developed non-
custodial permanency plans with the Mother attempting to prevent removal of the
Children from Mother’s custody. On September 8, 2016, the Juvenile Court removed the
Children from Mother’s custody and placed the Children in the custody of DCS. At that
time, Mother did not have appropriate housing and Father was incarcerated.
DCS developed a permanency plan for the Children in October 2016 with dual
goals of Return to Parent and Exit Custody with Relative. As to Mother, the permanency
plan required that Mother (1) pay child support, (2) participate in individual therapy, (3)
cooperate with random drug screening, (4) participate in family therapy as recommended,
(5) take her prescriptions as prescribed, (6) complete a parenting assessment and follow
all recommendations, (7) attend the Children’s appointments to understand their needs,
(8) obtain and maintain appropriate housing for the Children, (9) obtain and maintain a
legal source of income, (10) develop a transportation plan to get the Children to school
and to their appointments, and (11) identify relatives who could be a potential placement
for the Children. Mother signed the signature page of the permanency plan.
The October 2016 permanency plan required Father to (1) pay child support, (2)
complete a mental health assessment and follow all recommendations, (3) participate in
family therapy as recommended, (4) take his prescriptions as prescribed, (5) complete
parenting classes, (6) attend the Children’s appointments to understand their needs when
he is released from prison, (7) obtain and maintain appropriate housing and a legal source
of income following his release from prison, (8) refrain from incurring new criminal
charges, (9) comply with the terms of his probation, (10) develop a transportation plan to
get the Children to school and to their appointments, and (11) identify relatives who
could be a potential placement for the Children. The permanency plan reflects that
Father participated in development of the plan by telephone.
DCS also provided Mother with a copy of the “Criteria & Procedures for
Termination of Parental Rights,” and Ms. Swaney explained the contents to both Mother
and Father in October 2016. The Juvenile Court entered an order in November 2016,
approving the requirements of the October 2016 permanency plan as being reasonably
related to remedying the reasons for foster care and finding the requirements to be in the
1
The DCS case and subsequent court action also involved the Children’s sibling, Mikayla G., who was
placed into the custody of a relative. She is not part of the termination of parental rights proceedings.
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Children’s best interest. Mother appeared for the hearing and was represented by
counsel. As to Father, the order reflects that he “did not have notice or whereabouts
unknown.”
At the adjudicatory hearing in November 2016, Mother stipulated that the
Children were dependent and neglected and that Mother’s housing was inappropriate at
the time of the removal. Father was still incarcerated at the time of the hearing
concerning Mother. Father was released from prison in March 2017. Following his
release from prison, the Court conducted an adjudicatory hearing adverse to Father in
August 2017, wherein Father stipulated that the Children were dependent and neglected
and that Father had been incarcerated at the time of the removal.
DCS developed a second permanency plan in March 2017 with dual goals of
Return to Parent and Adoption. The second plan contained the same requirements as the
first plan but provided the following additional requirements: (1) Mother and Father will
participate in random drugs screens, (2) Mother will submit to an alcohol and drug
assessment and follow the recommendations, and (3) Mother will not incur new criminal
charges. This plan removed the requirement that the parents would identify relatives as
potential placements for the Children. The plan reflects that Father participated in the
development of the plan via telephone and that Mother’s attorney was present during the
development of the plan. Ms. Swaney also explained the “Criteria & Procedures for
Termination of Parental Rights” to Father in March 2017. The Juvenile Court approved
the second permanency plan in April 2017, finding that the requirements of the plan were
reasonably related to remedying the reasons for foster care and in the Children’s best
interest. Father appeared at that hearing and was represented by counsel. The order
reflects that Father did not agree with the plan due to the goal of adoption included.
During that hearing, the order states that the Juvenile Court explained to Father his duty
to visit and support the Children.
DCS developed a third permanency plan in September 2017. The plan reflects
that Father participated by telephone in the development of this plan. Both parents’
counsel participated in the meeting. The third permanency plan included the same goals
and requirements as the previous plan but reflected that Mother had completed an alcohol
and drug assessment but still needed to comply with follow-up classes, that Mother had
completed her parenting assessment and was currently participating in parenting sessions,
and that Father had completed parenting classes. The Juvenile Court approved the third
plan in December 2017. Neither Mother nor Father were present for this hearing but
were represented by counsel. The Juvenile Court’s order reflects that Mother was
incarcerated in Knox County at the time of the hearing. The Juvenile Court approved the
requirements of the permanency plan as being reasonably related to remedying the
reasons for foster care and in the Children’s best interest. The Juvenile Court also
modified the requirements of the plan to include two additional requirements: (1) Father
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and his paramour would comply with a hair follicle drug screen within thirty days and (2)
Mother would complete a mental health assessment.
DCS subsequently developed a fourth permanency plan in March 2018 with a sole
goal of Adoption, which the Juvenile Court approved, and filed a petition to terminate
Mother’s and Father’s parental rights to the Children on March 16, 2018. An initial
setting for the termination petition was scheduled for May 2018. The order from the
initial setting reflects that both parents had been served with process and had appeared at
the hearing. Both parents had been appointed counsel, and they also were present for the
hearing. At that initial setting, the Juvenile Court scheduled the termination trial for
September 10, 2018.
An order of continuance was entered on September 17, 2018, continuing the
termination trial until January 7, 2019. Father’s attorney requested a continuance for the
January 7, 2019 trial date due to a family emergency, and the trial was rescheduled for
February 19, 2019. The Juvenile Court subsequently entered an order continuing the trial
until May 2, 2019. The Juvenile Court’s February 21, 2019 order reads as follows:
“There being good cause shown or by agreement of the parties, it is hereby ORDERED
that this matter, currently set for Trial hearing on February 19, 2019 shall be
CONTINUED until May 2, 2019 at 1:30pm at the Blount County Juvenile Court in
Maryville, Tennessee.”
The Juvenile Court conducted a trial on May 2, 2019, concerning DCS’s
termination petition. Neither Mother nor Father appeared for the termination trial, but the
Juvenile Court found that they had both been provided with sufficient service and notice.
Father’s counsel appeared and represented Father during the trial. Mother’s counsel was
also present to represent Mother’s interests during trial. Kelly Swaney, the DCS case
manager, was the only witness at trial. DCS admitted as exhibits during trial the court
records from the dependency and neglect proceeding and Mother’s criminal history. The
criminal history records reflect that Mother was arrested for and pled guilty to Shoplifting
in November 2016. Mother was arrested for Driving Under the Influence in December
2016. Mother subsequently pled guilty to Driving Under the Influence in September
2017 and was sentenced to supervised probation. Mother was arrested in November 2017
for Possession with Intent to Sell Methamphetamine and subsequently pled guilty in
February 2018. Mother was sentenced to six years supervised probation as a result of this
conviction.
Following trial, the Juvenile Court entered an order in June 2019 with the
following findings of fact and conclusions of law:
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ABANDONMENT - FAILURE TO SUPPORT
T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(I), -102(1)(C) and -
102(1)(E)
The Petition to Terminate Parental Rights was filed on March 16,
2018. By the Court’s calculation, four months prior to the filing of the
petition would commence on or about November 15, 2017. CM Swaney
testified that during the four months just prior to the filing of the Petition to
Terminate Parental Rights, [Father] was full-time employed at Even Cut
Landscaping. CM Swaney also testified that [Father] signed the Criteria
and Procedures for Termination of Parental Rights, that she explained the
document to him, and that he understood the document. She also testified
that he did not pay any child support between November 15, 2017 and
March 15, 2018.
The Court finds by clear and convincing evidence the ground of
Abandonment, Failure to Support has been proven by DCS. Specifically
the Court finds that (a) [Father] was employed with a landscaping service,
working 40 hours per week, making $11.00 per hour. He got a raise to
$12.00 per hour; (b) he was ordered to pay $100.00 per month in child
support for all four children; (c) [Father] has not made any payments
towards his child support and CM Swaney verified that with the child
support division; [(d)] he signed the Criteria and Procedures for
Termination of Parental Rights so he was aware of his duty to support the
children.
ABANDONMENT - FAILURE TO PROVIDE SUITABLE HOME
T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii)
CM Swaney testified that the children were placed into DCS custody
due to [Mother’s] homelessness. On January 3, 2017, the children had been
in DCS custody for 4 months. Between the times the children came into
DCS custody and January 3, 2017, [Mother] did not exert any effort to
secure a suitable home for her children. CM Swaney testified that she
provided [Mother] with a resource guide and discussed housing and
programs that she could get into, but [Mother] was unwilling to take
advantage of those resources.
CM Swaney testified that she sat with [Mother] to make
appointments for housing options, but [Mother] was not interested. CM
Swaney testified that [Mother] told her on several occasions that she would
not leave the home where she was living despite it being an unsafe
environment for the children.
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The Court finds by clear and convincing evidence the ground of
Abandonment, Failure to Provide a Suitable Home has been proven by
DCS. Specifically the Court finds: (a) the children were removed from
[Mother] because of homelessness; (b) that prior to the filing of the
petition, the Department has been working with the family on addressing
housing issues; (c) [Mother] reported consistently over the life of the case
that she was living in an environment that was unsafe for the children; (d)
that despite assistance from CM Swaney such as sitting down with
[Mother], offering her options for shelters and help with subsidized
housing, that [Mother] made no effort to remedy this major barrier to
reunification; (e) that [Mother] has continued to incur criminal charges
since the children have come into DCS custody.
ABANDONMENT BY INCARCERATED PARENT
T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), -102 (1)(C) and -
102(1)(E)
DCS Case Manager Kelly Swaney testified that during the four
months just prior to filing the Petition to Terminate Parental Rights (on
March 16, 2018), [Mother] was incarcerated in the Knox County Jail. CM
Swaney also testified that [Mother] was incarcerated from August 18, 2017
to September 6, 2017. She testified that during the 4 months prior to her
incarceration, [Mother] did not pay any child support and did not visit the
children consistently.
Numerous exhibits were received into evidence showing [Mother’s]
criminal convictions and incarceration during the relevant months.
[Mother] was convicted of shoplifting, Driving Under the Influence, and
possession with intent to sell Methamphetamine less than 0.5 grams.
The Court finds by clear and convincing evidence the ground of
Abandonment by Incarcerated Parent has been proven by DCS.
Specifically, the Court finds that (a) [Mother] was incarcerated during the
four months immediately preceding the filing of the Petition to terminate
parental rights, [(b)] [Mother] failed to support the children during the four
months preceding her incarceration, and (c) [Mother] exhibited a wanton
disregard for the wellbeing of the children by continuing to engage in
criminal behavior.
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SUBSTANTIAL NONCOMPLIANCE WITH PERMANENCY PLAN
T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2)
Substantial compliance with the permanency plan is not compliance
with absolutely every step on the permanency plan. The Court is required
to determine the most important action step on the plan that would reunify
the family, or, put another way, the action step that addresses the reason
that gave rise to the removal of the children into foster care.
For [Mother], the children came into DCS custody because she had
no suitable housing for the children despite efforts by the Department
before the children came into custody to prevent her children from coming
into foster care. She was unable to provide housing for them after the
children were removed, she still cannot provide suitable housing for them,
and after nearly three years in foster care, [Mother] is not in a position to
provide housing for them now.
[Mother] completed some of the action steps on her permanency
plan. She had an alcohol and drug assessment and a parenting assessment.
She did visit, albeit sporadically. However, [Mother] did not obtain a legal
source of income sufficient to provide for the needs of the children. She
did not provide a transportation plan and she did not provide a suitable
home for the children, which was the most important action step on the
permanency plan. The Court finds by clear and convincing evidence that
[Mother] is in substantial noncompliance with the permanency plan
because she did not complete the most important action step on the
permanency plan, i.e. to find appropriate housing for the children.
Regarding [Father], the Court finds that he had several action steps
on the permanency plan to complete. He was required to have a mental
health assessment and follow the recommendations, cooperate with drug
screens, take medications as prescribed, and participate in family therapy.
The Court finds that the biggest barrier to reunification with [Father] was
that the children did not have a relationship with him. He had been
incarcerated for most of the children’s lives so when he was released from
incarceration, he initially made significant progress towards remedying the
reunification barriers, but then he stopped complying and he stopped
communicating. When CM Swaney asked him to comply with drug
screens, he failed to do so.
[Father] did not complete the recommendations from his mental
health assessment. He has not made himself available for random drug
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screens. He has stopped communicating with CM Swaney. He does not
have housing. He did have transportation, but CM Swaney testified that it
needed a modification to be able to transport the children. CM Swaney
offered to assist him [with] that modification, but he would not follow
through. Despite the Department’s significant efforts to help [Father]
satisfy the requirements of his permanency plan, he has still failed to do so.
The Court finds by clear and convincing evidence that [Father] is in
substantial noncompliance with his requirements in the permanency plan.
PERSISTENT CONDITIONS
T.C.A. §§ 36-1-113(g)(3)
The children were removed from [Mother] because of homelessness.
The Court finds that those conditions still persist. There is no appropriate
housing of which the Court is aware. The Court does not have any
knowledge that [Mother] can meet the needs of the children because she
has refused to allow CM Swaney to visit her home to assess it for safety.
The Court received uncontroverted evidence that [Mother] does not have
transportation. She has not addressed her substance abuse issues, as
evidenced by her convictions for DUI first offense and possession with
intent to sell Methamphetamine.
The Court finds that there is not just little chance, but that there is no
chance that these conditions will be remedied. If [Mother] could not move
out of a home with domestic violence that was unsafe for her children in the
nearly three years that the children have been in foster care, the Court holds
out no hope that she will remedy these conditions at any time.
Furthermore, trying to maintain a parent-child relationship between
[Mother] and the children greatly diminishes these children’s chances of
being placed in suitable, safe, permanent homes. The Court finds that the
ground of persistent conditions has been met by the Department by clear
and convincing evidence.
BEST INTERESTS
Having found the above grounds by clear and convincing evidence,
the Court is required to review whether it is in the children’s best interest to
terminate the parent[s’] rights and free the children for adoption. The Court
finds that the Department has demonstrated by clear and convincing
evidence that termination is in the best interest of the children.
[Father] and [Mother] have made no lasting changes to their lifestyle
that would allow the children to be safely returned to their homes.
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[Mother] refused to leave an environment that was unsafe for her children.
The Department provided significant services to the family to assist in
resolving these issues and [Mother] has not made those changes.
There has not been regular visitation between [Father] and the
children. The visitation between [Mother] and the children has been
sporadic at best. The children have been in foster care for nearly three
years. Changing caregivers at this stage of the proceeding would be
detrimental to their psychological welfare and emotional state.
There continues to be drug use and criminal activity by [Mother],
and neither [Father] nor [Mother] have paid child support consistent with
the guideline. Therefore, the Court finds by clear and convincing evidence
that it is in the best interest of these children for the parental rights of
[Mother] and [Father] to be terminated and for the children to be freed for
adoption.
(Internal citations omitted.)
The Juvenile Court terminated Mother’s rights on the statutory grounds of
abandonment by failure to provide a suitable home, abandonment by wanton disregard,
abandonment by failure to support prior to her incarceration, substantial noncompliance
with the permanency plan, and persistent conditions and terminated Father’s parental
rights on the statutory grounds of abandonment by failure to support prior to the
petition’s filing and substantial noncompliance with the permanency plan. The Juvenile
Court further found that termination of Mother’s and Father’s parental rights was in the
Children’s best interest. Both Mother and Father timely filed notices of appeal to this
Court.
Discussion
Although not stated exactly as such, Mother raises one issue for our review:
whether the evidence presented supports the Juvenile Court’s finding by clear and
convincing evidence that termination of Mother’s parental rights was in the Children’s
best interest. Father raises five additional issues for our review: (1) whether Father was
provided a fundamentally fair proceeding, including notice and an opportunity to be
heard, (2) whether the Juvenile Court erred by finding by clear and convincing evidence
that Father had abandoned the Children by failing to support them, (3) whether the
Juvenile Court erred by finding by clear and convincing evidence that Father had failed to
substantially comply with the requirements of the permanency plan, (4) whether
Tennessee’s procedure for appointing attorneys to represent parents in termination of
parental rights proceedings provides “sufficient guarantees” that the parent will receive a
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fundamentally fair proceeding, and (5) whether termination of Father’s parental rights
was in the Children’s best interest.
With regard to the termination of parental rights, our Supreme Court has
instructed:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state constitutions.2 Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000);
Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption
of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk,
855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although
fundamental and constitutionally protected, are not absolute. In re Angela
E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
as parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In
re Angela E., 303 S.W.3d at 250. “When the State initiates a parental rights
termination proceeding, it seeks not merely to infringe that fundamental
liberty interest, but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388.
[“]Few consequences of judicial action are so grave as the severance of
natural family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J.,
519 U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The parental
rights at stake are [“]far more precious than any property right.” Santosky,
455 U.S. at 758-59 102 S. Ct. 1388. Termination of parental rights has the
legal effect of reducing the parent to the role of a complete stranger and of
[“]severing forever all legal rights and obligations of the parent or guardian
of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455
U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating
parental rights is [“]final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
[“]fundamentally fair procedures” in termination proceedings. Santosky,
455 U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640
2
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”
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(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated [“]fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010). [“]Clear and convincing evidence enables the fact-finder
to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than
not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1113[sic](c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds3 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,4 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
3
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
4
Tenn. Code Ann. § 36-1-113(i).
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182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1113[sic](k). A trial court
must “enter an order that makes specific findings of fact and conclusions of
law within thirty (30) days of the conclusion of the hearing.” Id. This
portion of the statute requires a trial court to make “findings of fact and
conclusions of law as to whether clear and convincing evidence establishes
the existence of each of the grounds asserted for terminating [parental]
rights.” In re Angela E., 303 S.W.3d at 255. “Should the trial court
conclude that clear and convincing evidence of ground(s) for termination
does exist, then the trial court must also make a written finding whether
clear and convincing evidence establishes that termination of [parental]
rights is in the [child’s] best interests.” Id. If the trial court’s best interests
analysis “is based on additional factual findings besides the ones made in
conjunction with the grounds for termination, the trial court must also
include these findings in the written order.” Id. Appellate courts “may not
conduct de novo review of the termination decision in the absence of such
findings.” Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 &
n.15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). In light of the heightened
burden of proof in termination proceedings, however, the reviewing court
must make its own determination as to whether the facts, either as found by
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the trial court or as supported by a preponderance of the evidence, amount
to clear and convincing evidence of the elements necessary to terminate
parental rights. In re Bernard T., 319 S.W.3d at 596-97. The trial court’s
ruling that the evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo with no
presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness. In re Angela E., 303 S.W.3d at
246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).
We first address Father’s issue of whether he received a fundamentally fair trial.
Father argues that he did not receive a fundamentally fair proceeding, “including notice
and an opportunity to be heard.” Upon a review of the record, we note that Father’s
counsel was present at the termination proceedings and that counsel did not request a
continuance on Father’s behalf. As such, we find and hold that Father waived the issue
of notice for purposes of the appeal.
Additionally, Father essentially argues that due to ineffective assistance of trial
counsel, Father was deprived of a fundamentally fair proceeding. The Tennessee
Supreme Court has held as follows: “[W]e decline to hold that securing the constitutional
right of parents to fundamentally fair procedures requires adoption of an additional
procedure, subsequent to or separate from an appeal as of right, by which parents may
attack the judgment terminating parental rights based upon ineffective assistance of
appointed counsel.” In re Carrington H., 483 S.W.3d 507, 535 (Tenn. 2016). Following
In re Carrington H., it is somewhat unclear whether ineffective assistance of counsel is
an avenue for appeal during an appeal as of right pursuant to Tennessee Rule of
Appellate Procedure 3. See In re LaiLonnii J., No. E2018-01198-COA-R3-PT, 2019 WL
669758, at *10-11 (Tenn. Ct. App. Feb. 19, 2019) (determining that, pursuant to In re
Carrington H., “there is no right to effective assistance of counsel in parental termination
cases” but that the parent was entitled to fundamentally fair procedures); In re Brianna
T., No. E2017-01132-COA-R3-PT, 2017 WL 6550621, at *4 n.4 (Tenn. Ct. App. Dec.
22, 2017) (interpreting the Tennessee Supreme Court’s holding in In re Carrington H. to
stand for the proposition that “an indigent parent’s right to appointed counsel in
termination of parental rights cases does not include the right to challenge an order
terminating parental rights based on ineffective assistance of counsel”); In re Hailey C.,
No. M2016-00818-COA-R3-PT, 2017 WL 4331039, at *5 (Tenn. Ct. App. Sept. 28,
2017) (declining to address the parent’s argument of ineffective assistance of counsel
during the termination trial based upon its interpretation of the holding in In re
Carrington H. that “a parent has no such right in Tennessee”); In re Karissa V., No.
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E2016-00395-COA-R3-PT, 2017 WL 758513, at *12-13 (Tenn. Ct. App. Feb. 27, 2017)
(finding a parent’s argument that “she is entitled to relief because her counsel was
ineffective” to be unavailing and explaining the Supreme Court’s decision in In re
Carrington H. to hold that “there is no mechanism to seek relief based upon alleged
ineffective assistance of counsel in parental termination cases,” but parents are entitled to
fundamentally fair procedures).
Upon our review of the Supreme Court’s decision in In re Carrington H., 483
S.W.3d 507 (Tenn. 2016), we note that the Court did not specifically hold that a parent
may or may not raise ineffective assistance of counsel on direct appeals. Instead the
Court held that the “adoption of an additional procedure, subsequent to or separate from
an appeal as of right (emphasis added)” by which the parent may attack the termination
judgment based upon an alleged ineffective assistance of counsel is not required to
provide the parent with fundamentally fair procedures. The issue of whether a parent in a
termination of parental rights action may raise ineffective assistance of counsel on direct
appeal is a question that should be settled by our Supreme Court.
We further note, however, that the Supreme Court in In re Carrington H. analyzed
on direct appeal a parent’s claim of ineffective assistance of counsel by determining
whether the actions of counsel prevented the parent from receiving a fundamentally fair
proceeding. See id. at 535-536. As such, we will address on appeal whether the
representation of Father by appointed trial counsel deprived Father of a fundamentally
fair proceeding.
Father argues that his appointed trial counsel made several errors during trial.
First, Father argues that his trial counsel failed to request a continuance when Father was
not present for the trial. We note that counsel’s absence of a continuance request when
Father was not present could have been a strategic decision between Father and counsel
to prevent Father from being called as a witness during trial by DCS. It is not
unreasonable that trial counsel proceeding in Father’s absence was a strategic decision
that counsel believed would not hurt and might help Father’s case. Additionally, if
Father’s absence from trial was not a strategic decision by trial counsel, Father must
accept the responsibility for his absence. As such, we determine that the fact that
Father’s counsel did not request a continuance in this action did not deny Father a
fundamentally fair proceeding.
Father also assigns blame to his appointed counsel for not filing an answer to
DCS’s termination petition. However, we note that an answer is not required to be filed
in response to a termination of parental rights petition. See Tenn. R. Civ. P. 8.04
(requires allegations in parental termination actions to be proven even if not denied in a
responsive pleading). Furthermore, by declining to file an answer, Father’s counsel
“avoided admitting or denying each allegation of the petition,” which could have been
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beneficial to Father, “but which was, in any event, a reasonable choice.” See In re
Carrington H., 483 S.W.3d at 536.
Father also avers that trial counsel made other errors by declining to make an
opening statement, not making specific arguments on the behalf of Father, not objecting
to certain testimony or admission of evidence, and not eliciting certain testimony during
trial. These choices by counsel may well have been strategic decisions by counsel
seeking to best represent Father’s interests. Upon review of the record, we note that
counsel elicited testimony from Ms. Swaney concerning a clean hair follicle drug screen
by Father and Father’s progression from supervised visitation to unsupervised visitation,
both of which were beneficial to his cause. Counsel further argued on Father’s behalf
during closing arguments that DCS had not met its burden of proof to terminate Father’s
parental rights to the Children. Father’s counsel made arguments that the proof presented
was not sufficient to support that Father had not supported the Children, pointed out the
steps Father had completed on the permanency plans, and argued that termination of
Father’s parental rights was not in the Children’s best interest. Furthermore, Father has
failed to establish how counsel’s alleged errors during trial deprived him of a
fundamentally fair proceeding. Upon review of the record, we find and hold that Father’s
appointed counsel’s representation did not deprive him of a fundamentally fair
proceeding.
Additionally, Father argues that Tennessee’s process of appointing attorneys to
represent parents in parental termination actions does not “provide sufficient guarantees”
that a parent will receive a fundamentally fair proceeding. According to Father, “there
are no qualifications” for appointed attorneys in Tennessee representing parents in
termination of parental rights proceedings. Counsel proceeds to compare the
requirements for counsel in death penalty criminal actions to the lack of “qualifications”
for termination of parental rights actions and argues that “some minimum standards” are
necessary in termination of parental rights cases. We find Father’s argument that
Tennessee’s entire attorney appointment procedure for indigent parents in termination
proceedings does not “provide sufficient guarantees” that a parent will receive a
fundamentally fair proceeding to be unavailing. Furthermore, we lack the authority to
amend Tennessee Supreme Court Rule 13 to include minimum qualifications for
appointed attorneys in termination proceedings. Therefore, we find this issue to be
without merit.
We next address Father’s issue concerning the statutory ground of abandonment
by failure to support. Concerning this ground, Tennessee Code Annotated § 36-1-
102(1)(A)(i) (2017) provides:
For a period of four (4) consecutive months immediately preceding the
filing of a proceeding, pleading, petition, or any amended petition to
terminate the parental rights of the parent or parents or the guardian or
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guardians of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent or parents or the guardian or
guardians . . . have failed to support or have failed to make reasonable
payments toward the support of the child;
The petition was filed on March 16, 2018. The Juvenile Court found in its order that the
relevant four-month period began on November 15, 2017. While we note that the correct
four-month period extended from November 16, 2017, through March 15, 2018, it makes
no difference in our analysis.
As relevant to this ground, Father argues that the Juvenile Court erred by relying
on evidence that was hearsay. However, there was no objection to admission of the
evidence at trial. Therefore, we find that Father waived this issue on appeal because it
was not raised in the proceedings below. See Black v. Blount, 938 S.W.2d 394, 403
(Tenn. 1996) (“Under Tennessee law, issues raised for the first time on appeal are
waived.”).
Father further argues that the Juvenile Court did not specifically find Father’s
failure to support to be willful. This Court has held that “‘[f]ailure to support a child is
‘willful’ when a person is aware of his or her duty to support, has the capacity to provide
the support, makes no attempt to provide support, and has no justifiable excuse for not
providing the support.’” In re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005)
(quoting In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT, 2004 WL 1085228,
at *4 (Tenn. Ct. App. May 12, 2004)). As relevant to the issue of willfulness, the
Juvenile Court specifically found that Father knew of his responsibility to support the
Children and, as relevant to his ability to support, that he was employed full time during
the four-month period, earning $11-12 per hour. The Juvenile Court further found that
Father had failed to provide any financial support for the Children during the relevant
four-month period and that DCS had proven the ground of abandonment by failure to
support by clear and convincing evidence. Although not specifically using the word
“willful,” the Juvenile Court’s findings concerning Father’s ability and knowledge clearly
and convincingly support that Father’s failure to support the Children was willful. We
find Father’s argument in this regard to be without merit.
Father further argues that he was hospitalized for three weeks during the relevant
four-month period, and therefore, his failure to support was not willful. The case
manager testified that Father was employed full time during the relevant four-month
period. According to Ms. Swaney, Father had informed her that he had been admitted to
the hospital but she was unaware of the timeframe. Father indicated to her that he had
been in the hospital for a while but she was unaware how long. An affidavit by Ms.
Swaney admitted as an exhibit during trial reflects that Father informed her during a
phone call in late February 2018 that he had been hospitalized for three weeks for an
infection in his leg. The affidavit does not specify the dates of Father’s hospitalization.
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The Juvenile Court found that Father was employed full time at a landscaping
company making $11.00 per hour and had gotten a raise to $12.00 per hour. Father had
been ordered to pay $100 per month in child support for the Children, $25 per child per
month. The Juvenile Court found that Father was aware of his duty to support the
Children, was employed full time, and had not made any payments toward the Children’s
support. Even if Father had been hospitalized for three weeks in February 2018, this does
not explain why Father had not provided any support for the Children prior to his
hospitalization during the beginning and the remainder of the four-month period. The
evidence presented does not preponderate against the Juvenile Court’s factual findings
concerning Father’s abandonment of the Children by failing to support them. As such,
we find by clear and convincing evidence and hold, as did the Juvenile Court, that Father
abandoned the Children by failing to provide financial support for them.
We next address Father’s issue concerning substantial noncompliance with the
permanency plans. As to this ground, Tennessee Code Annotated § 36-1-113(g)(2)
(Supp. 2019) provides as a statutory ground for termination of parental rights as follows:
There has been substantial noncompliance by the parent or guardian with
the statement of responsibilities in a permanency plan pursuant to title 37,
chapter 2, part 4[.]
Throughout the time the Children were in DCS custody, the requirements of the
court-approved permanency plans required Father to (1) pay child support, (2) complete
a mental health assessment and follow all recommendations, (3) participate in family
therapy as recommended, (4) take his prescriptions as prescribed, (5) complete parenting
classes, (6) attend the Children’s appointments to understand their needs when he is
released from prison, (7) obtain and maintain appropriate housing and a legal source of
income following his release from prison, (8) refrain from incurring new criminal
charges, (9) comply with the terms of his probation, (10) develop a transportation plan to
get the Children to school and to their appointments, (11) identify relatives who could be
a potential placement for the Children, (12) participate in random drug screens, and (13)
comply with a hair follicle drug screen.
The Juvenile Court found that the largest barrier to reunifying the Children with
Father was his lack of a relationship with them. We note, as did the Juvenile Court, that
Father made some progress on the requirements of his permanency plan. Father
completed parenting classes, gained employment, and complied with a mental health
assessment. Although the Juvenile Court found that Father had not complied with the
recommendations of his mental health assessment, Ms. Swaney’s testimony at trial
reflected that Father had complied with the recommended Narcotics Anonymous classes
for approximately three months.
- 17 -
The Juvenile Court found that despite Father’s initial progress, he had stopped
complying and communicating with DCS. Ms. Swaney had been unable to drug screen
Father since July 2017. When Ms. Swaney requested that Father appear for a drug
screen, Father made excuses that he was unavailable and failed to comply. DCS provided
funding for a hair follicle drug screen but Father failed to comply with that drug screen.
Father had ceased visitation with the Children and had not visited since November 2017.
Father also does not have housing for the Children. Although Father had transportation,
he failed to modify his vehicle so that the Children could be safely transported in his
vehicle, despite offers of financial assistance from DCS. Upon our review of the record,
we find and hold, as did the Juvenile Court, that DCS proved this ground by clear and
convincing evidence.
Although Mother does not raise an issue for review concerning the statutory
grounds utilized for termination of her parental rights, we will nonetheless review the
Juvenile Court’s findings concerning each ground as directed by our Supreme Court in In
re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016). The first statutory ground
concerning Mother that we address is abandonment by failure to provide a suitable home.
Concerning this ground, Tennessee Code Annotated § 36-1-102(1)(A)(ii) (2017)
provides:
The child has been removed from the home of the parent or parents or the
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 or
parents or the guardian or guardians to establish a suitable home for the
child, but that the parent or parents or the guardian or guardians have made
no reasonable efforts to provide a suitable home and have demonstrated a
lack of concern for the child to such a degree that it appears unlikely that
they will be able to provide a suitable home for the child at an early date.
The efforts of the department or agency to assist a parent or guardian in
establishing a suitable home for the child may be found to be reasonable if
such efforts exceed the efforts of the parent or guardian toward the same
goal, when the parent or guardian is aware that the child is in the custody of
the department[.]
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The Juvenile Court removed the Children from Mother’s custody in September
2016 due to Mother’s homelessness and found that DCS had attempted to prevent
removal from Mother’s custody by addressing her housing issues. The Juvenile Court
subsequently found the Children to be dependent and neglected. Additionally, the
Juvenile Court found that during the four months immediately following the Children’s
removal, DCS provided reasonable efforts to assist Mother with reunification by
providing her with a resource guide, discussing housing options and programs for her but
that Mother was unwilling to participate with any of those options. Ms. Swaney testified
that Mother had informed her on multiple occasions that she would not leave her home
despite the fact that it was an unsafe environment. The Juvenile Court found that despite
Ms. Swaney offering Mother housing options, including shelters and assistance with
subsidized housing, Mother “made no effort to remedy this major barrier to
reunification.” Additionally, Mother continued to participate in criminal activity and
incur criminal charges while the Children were in DCS custody. We find by clear and
convincing evidence and hold, as did the Juvenile Court, that Mother abandoned the
Children by failing to provide a suitable home for them.
We next address the statutory ground of abandonment by failure to provide
financial support by an incarcerated parent. Concerning this ground, the version of
Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2017) in effect at the time of the
termination petition’s provides in relevant part:
A parent or guardian 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 or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and . . . has willfully failed to support or has willfully failed to make
reasonable payments toward the support of the child for four (4)
consecutive months immediately preceding such parent’s or guardian’s
incarceration . . . . If the four-month period immediately preceding the
institution of the action or the four-month period immediately preceding
such parent’s incarceration is interrupted by a period or periods of
incarceration, and there are not four (4) consecutive months without
incarceration immediately preceding either event, a four-month period shall
be created by aggregating the shorter periods of nonincarceration beginning
with the most recent period of nonincarceration prior to commencement of
the action and moving back in time. Periods of incarceration of less than
seven (7) days duration shall be counted as periods of nonincarceration.
Periods of incarceration not discovered by the petitioner and concealed,
denied, or forgotten by the parent shall also be counted as periods of
nonincarceration. A finding that the parent has abandoned the child for a
defined period in excess of four (4) months that would necessarily include
the four (4) months of nonincarceration immediately prior to the institution
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of the action, but which does not precisely define the relevant four-month
period, shall be sufficient to establish abandonment[.]
Tennessee Code Annotated § 36-1-102(1)(D) provides that a parent must have willfully
failed to provide more than token financial support for the child during the relevant four-
month period.
Upon review of the Juvenile Court’s findings concerning Mother’s abandonment
of the Children by her failure to provide financial support, we determine that the Juvenile
Court’s findings did not rise to the level of clear and convincing evidence. We note that
the version of this statutory ground in effect at the time of the termination petition’s filing
required DCS to prove that a parent’s failure to support was willful. The Juvenile Court
made no such finding as to Mother’s willfulness. Additionally, the evidence presented at
trial does not support the Juvenile Court’s finding that Mother failed to pay financial
support. When asked during trial whether Mother paid child support, Ms. Swaney
replied, “I do not know. I don’t know that there was an order.” She also stated, “I don’t
believe that mom owes anything.” Based on the foregoing, we reverse this ground as to
Mother.
We next address the statutory ground of abandonment by wanton disregard. As
relevant to this ground, Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2017) provides
in pertinent part:
A parent or guardian 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 or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and . . . the parent or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the child.
Mother was incarcerated during part of the four months prior to the filing of the
termination petition. The Children were placed into DCS custody in September 2016 due
to Mother’s homelessness. Following that time, Mother continued participating in
criminal activity. She received a conviction for shoplifting in November 2016. Mother
was subsequently arrested for driving under the influence in December 2016, to which
she later pled guilty in September 2017. Mother was arrested for possession with intent
to sell methamphetamine in November 2017, to which she pled guilty in February 2018.
Based on Mother’s criminal activity, the Juvenile Court found that Mother had
abandoned the Children by demonstrating wanton disregard for their welfare. This Court
has previously held that “probation 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
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welfare of a child.” In re Audrey S., 182 S.W.3d 838, 867-68 (Tenn. Ct. App. 2005). We
find and hold, as did the Juvenile Court, that DCS proved this ground by clear and
convincing evidence.
We next address the statutory ground of substantial noncompliance with the
permanency plan requirements. As already stated above, Tennessee Code Annotated §
36-1-113(g)(2) provides as a ground for termination of a parent’s rights when “[t]here has
been substantial noncompliance by the parent or guardian with the statement of
responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.” Pursuant to
the court-approved permanency plans, Mother was required to complete the following:
(1) pay child support, (2) participate in individual therapy, (3) cooperate with random
drug screening, (4) participate in family therapy as recommended, (5) take her
prescriptions as prescribed, (6) complete a parenting assessment and follow all
recommendations, (7) attend the Children’s appointments to understand their needs, (8)
obtain and maintain appropriate housing for the Children, (9) obtain and maintain a legal
source of income, (10) develop a transportation plan to get the Children to school and to
their appointments, (11) identify relatives who could be a potential placement for the
Children, (12) comply with random drug screens, (13) submit to an alcohol and drug
assessment and follow the recommendations, (14) not incur new criminal charges, and
(15) complete a mental health assessment.
As the Juvenile Court acknowledged, Mother had completed some steps on the
permanency plan, including completing an alcohol and drug assessment and a parenting
assessment. However, Mother had not obtained a legal source of income to support the
Children or provided a transportation plan to DCS. Mother also had not provided
appropriate housing for the Children, which the Juvenile Court found was the most
important action step for Mother to complete on the permanency plans. In fact, Mother
had informed Ms. Swaney that she was in an unsafe living situation but was unwilling to
leave. Upon reviewing the record, we find by clear and convincing evidence and hold, as
did the Juvenile Court, that Mother had not substantially complied with the requirements
on the permanency plans, which were reasonably related to the reasons the Children were
in foster care and were in the Children’s best interest.
We next address whether the Juvenile Court erred in finding by clear and
convincing evidence that the conditions leading to the Children’s removal from Mother
persisted. Although the statute at issue has since been amended, the version of Tennessee
Code Annotated § 36-1-113(g)(3) (2017) that was in effect at the time of the termination
petition’s filing and is applicable to the current proceeding stated as follows:
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:
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(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 or parents or the guardian
or guardians, 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 or
parents or the guardian or guardians 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[.]
In this case, the Children were removed from Mother’s custody due to Mother’s
homelessness. The Court found that Mother still had not obtained suitable housing for
the Children. Additionally, the Juvenile Court found that Mother did not have
transportation for the Children and had unaddressed substance abuse issues, as evidenced
by her convictions for driving under the influence and possession with intent to sell
methamphetamine. The Juvenile Court found that the conditions leading to the
Children’s removal from Mother’s custody persist. The Juvenile Court further found that
“there is not just little chance, but that there is no chance” that those conditions will be
remedied such that the Children could return home to Mother’s custody. Furthermore,
the Juvenile Court found that continuing the parent-child relationship between Mother
and the Children greatly diminished the Children’s chances of being placed into safe and
permanent homes. The evidence does not preponderate against any of these findings.
Upon our review of the record, we determine, as did the Juvenile Court, that DCS has
proven the ground of persistent conditions by clear and convincing evidence.
Finally, having determined that grounds exist for the termination of Mother’s and
Father’s parental rights, we next address the best interest analysis. Both parents have
raised the best interest analysis as an issue on appeal and argue that the Juvenile Court
erred by determining that it was in the Children’s best interest for their respective
parental rights to be terminated. Tennessee Code Annotated § 36-1-113(i) provides a set
of non-exclusive factors courts are to consider in determining whether termination of
parental rights is in a child’s best interest:
(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child pursuant to this part, the
court shall consider, but is not limited to, the following
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(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or another child
or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the
home, or whether there is such use of alcohol, controlled substances
or controlled substance analogues as may render the parent or
guardian consistently unable to care for the child in a safe and stable
manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for
the child; or
(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department
pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113(i) (Supp. 2019).
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With regard to making a determination concerning a child’s best interest, our
Supreme Court has instructed:
When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon
the circumstances of a particular child and a particular parent, the
consideration of one factor may very well dictate the outcome of the
analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
S.W.3d at 194). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
more weight—even outcome determinative weight—to a particular
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statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
Both parents argue that the Juvenile Court erred by failing to apply a presumption
against separating siblings. See Ray v. Ray, 83 S.W.3d 726, 738 (Tenn. Ct. App. 2001).
This Court has explained that “[t]he preference for keeping siblings together ‘is simply a
factor for the court to consider in determining the best interest of the child . . . . It is not a
controlling factor. Courts have previously separated siblings if separation was in the best
interest of the child before the court.” Grigsby v. Alvis-Crawford, No. W2016-00393-
COA-R3-JV, 2017 WL 417221, at *4 (Tenn. Ct. App. Jan. 31, 2017) (quoting In re S.B.,
No. M1999-00140-COA-R3-CV, 2000 WL 575934, at *5 (Tenn. Ct. App. May 12,
2000)).
We note that the parents failed to raise the Children’s placement as an issue at trial
for the Juvenile Court to consider. Because the Children’s placement in separate foster
homes is not included in the non-exclusive list of factors set forth in Tennessee Code
Annotated § 36-1-113(i) for the Juvenile Court to consider and the parents failed to raise
it at trial, there is little evidence in the record pertaining to the effects of or reasoning
behind the placement decision. The mere fact that the Children were in separate foster
homes, without more, does not preponderate against the Juvenile Court’s findings
concerning best interest.
The Juvenile Court considered the factors in Tennessee Code Annotated § 36-1-
113(i) in making its decision. Pursuant to factors (1) and (2), the Juvenile Court found
that Mother and Father had made no changes to their lifestyles that would allow the
Children to be placed into their respective custody, despite “significant services” to assist
the family. As relevant to Mother, the Juvenile Court found that she had refused to leave
an environment that was unsafe for the Children. As to factor (3), the Juvenile Court
found that neither Mother nor Father had maintained consistent visitation with the
Children. Ms. Swaney’s testimony established that Father had not visited with the
Children since November 2017. Additionally, the Juvenile Court found as relevant to
factor (5) that the Children had been in foster care for nearly three years and changing
caregivers at this point would have a detrimental effect on the Children’s psychological
welfare and emotional state. Pursuant to factor (7), the Juvenile Court found that Mother
had continued her drug use and criminal activity. Upon our review of the record on
appeal, we determine that the evidence presented does not preponderate against these
findings by the Juvenile Court.
The Juvenile Court further found that as relevant to factor (9), neither Mother nor
Father had paid child support for the Children. The evidence in the record supports the
Juvenile Court’s finding regarding Father’s failure to pay child support. As such, we find
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and hold, as did the Juvenile Court, that, in consideration of all relevant factors, DCS
proved by clear and convincing evidence that the termination of Father’s parental rights
was in the Children’s best interest. However, there was no evidence presented at trial
that Mother had failed to support the Children. To the contrary, Ms. Swaney’s testimony
reflects that she did not know if Mother paid support or whether there was an order
requiring her to do so. She also stated that she did not believe Mother owed any support.
The testimony in the record preponderates against the Juvenile Court’s finding that
Mother failed to provide support for the Children. Nonetheless, considering the Juvenile
Court’s findings as to the remaining factors, which the evidence does not preponderate
against, we find and hold, as did the Juvenile Court, that DCS proved by clear and
convincing evidence that the termination of Mother’s parental rights was in the
Children’s best interest. We, therefore, affirm the Juvenile Court’s judgment terminating
Mother’s and Father’s parental rights to the Children.
Conclusion
The judgment of the Juvenile Court terminating Mother’s and Father’s parental
rights to the Children is affirmed, as modified. This cause is remanded to the Juvenile
Court for collection of the costs assessed below. The costs on appeal are assessed against
the appellants, Jennifer G. and Brian B., and their surety, if any.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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