In Re: Kayla E. ( 2015 )


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  •                    IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs November 03, 2014
    IN RE KAYLA E., ET AL.1
    Appeal from the Chancery Court for Lawrence County
    No. 1316128    Jim T. Hamilton, Chancellor
    No. M2014-01162-COA-R3-PT - Filed January 9, 2015
    Mother appeals the finding that termination of her parental rights to her child was in the
    child’s best interest. Finding no error, we affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
    R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
    J R., P. J., M. S., and W. N EAL M CB RAYER, J. joined.
    M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Laura M. E.
    Herbert H. Slatery, III, Attorney General and Reporter; and Jordan Scott, Assistant Attorney
    General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s
    Services.
    OPINION
    Laura M. E. (“Mother”) is the mother of five children and appeals the termination of
    her parental rights to one child, Shelby K., born June 2006.2 Shelby, along with Kayla and
    Daniel, were placed in the custody of the Department of Children’s Services (“the
    1
    This Court has a policy of protecting the identity of children in parental termination cases by
    initializing the last names of the parties.
    2
    The termination proceeding initially involved three of Mother’s children: Kayla E., Daniel G., and
    Shelby K.; an amended petition was filed to withdraw Kayla E. and her father Buford E. from the proceeding.
    Charles G., the father of Daniel G., surrendered his parental rights prior to the institution of the proceeding;
    at trial Mother voluntarily surrendered her rights to Daniel G. The case proceeded to terminate the rights
    of Mother and Timothy K. to Shelby K.; Timothy K. does not appeal the termination of his rights.
    Department”) on June 30, 2011, as a result of a dependent and neglect proceeding filed by
    the Department in Lawrence County Juvenile Court. An adjudicatory hearing was held on
    August 15, and on August 16, the court entered an order finding the children dependent and
    neglected within the meaning of Tenn. Code Ann. §§ 37-1-102(b)(1) and (12)(B), (F), and
    (G). Thereafter permanency plans were adopted on August 2, 2011, February 22, 2012,
    August 2, 2012, and January 24, 2013; Mother signed each of the plans.
    The Department of Children’s Services (“the Department”) filed the Petition to
    Terminate Parental Rights in the Chancery Court of Lawrence County on January 14, 2013.
    The grounds alleged to terminate Mother’s parental rights to Shelby were abandonment by
    failure to visit and support within the meaning of Tenn. Code Ann. §§ 36-1-113(g)(1) and
    36-1-102(1)(A)(i), (1)(C) and (1)(E), substantial noncompliance with the permanency plans,
    Tenn. Code Ann. § 36-1-113(g)(2), and persistence of conditions, Tenn. Code Ann. § 36-1-
    113(g)(3); the petition also alleged that termination of Mother’s rights was in the best interest
    of Shelby.
    Trial was held on April 30 and May 1, 2014, and on May 16, the court entered an
    order terminating the Mother’s parental rights to Shelby K. and Daniel G. As respects the
    termination of Mother’s rights to Shelby, the court found that Mother failed to comply with
    the responsibilities and requirements of the permanency plans and that she had not remedied
    the conditions that led to Shelby’s removal from her custody; the court determined, for
    numerous reasons, that termination of Mother’s rights was in Shelby’s best interest.
    Mother appeals, articulating the following issue:
    I. Whether clear and convincing evidence supports the trial court’s
    determination that termination of [Mother’s] parental rights was in the best
    interests of Shelby K. K.
    I. S TANDARD OF R EVIEW
    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 if there is a
    compelling state interest. 
    Nash-Putnam, 921 S.W.2d at 174
    –75 (citing Santosky v. Kramer,
    
    455 U.S. 745
    (1982)). A party seeking to terminate the parental rights of a biological parent
    must prove at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-
    113(c)(1); In re D.L.B., 
    118 S.W.3d 366
    –67 (Tenn. 2003); In re Valentine, 
    79 S.W.3d 539
    ,
    546 (Tenn. 2002). Secondly, the party must prove that termination of the parental rights of
    the biological parent is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2).
    2
    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 766
    – 69; In re M.W.A., Jr., 
    980 S.W.2d 620
    , 622
    (Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry
    must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); In
    re 
    Valentine, 79 S.W.3d at 546
    . In light of the heightened standard of proof in these cases,
    a reviewing court must adapt the customary standard of review set forth by Tenn. R. App.
    P. 13(d). In re M.J.B., 
    140 S.W.3d 643
    , 654 (Tenn. Ct. App. 2004). As to the court’s
    findings of fact, our review is de novo with a presumption of correctness unless the evidence
    preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). 
    Id. We must
    then
    determine whether the facts, as found by the trial court or as supported by the preponderance
    of the evidence, clearly and convincingly establish the elements necessary to terminate
    parental rights. 
    Id. II. D
    ISCUSSION
    Although Mother does not contest the sufficiency of the evidence to establish the
    grounds for termination of her rights, we have reviewed the record and determined that the
    evidence clearly and convincingly proves the grounds of failure to comply with the
    permanency plans and persistence of conditions. Thus, the issue we address is the
    sufficiency of the evidence to support the finding that termination of Mother’s rights was in
    Shelby’s best interest.
    Our legislature has set out a list of factors at Tenn. Code Ann. § 36-1-113(i) to be
    followed in determining whether termination of a parent’s rights is in a child’s best interest.3
    3
    The factors at Tenn. Code Ann. § 36-1-113(i) are:
    (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
    (continued...)
    3
    The list of factors in the statute is not exhaustive, and the statute does not require every factor
    to appear before a court can find that termination is in a child’s best interest. In re S.L.A.,
    
    223 S.W.3d 295
    , 301 (Tenn. Ct. App. 2006) (citing State of Tenn. Dep’t of Children’s Servs.
    v. T.S.W., 
    2002 WL 970434
    , at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., 
    2006 WL 3077510
    , at *4 (Tenn. Ct. App. Oct. 31, 2006)).
    With respect to Mother’s rights to Shelby, the trial court held:
    12.     It is in [Shelby’s] best interest for termination to be granted as
    to [Mother] . . . because [she has] not made such an adjustment of
    circumstance, conduct or conditions as to make it safe and in the children’s
    best interest to be in [her] home[s].
    ***
    15.     It is in [Shelby’s] best interest for termination to be granted as
    to [Mother] . . . because a change of caretakers and physical environment
    resulting in a return to [Mother] is likely to have a detrimental/negative effect
    on the [Shelby’s] emotional, psychological and medical condition.
    ***
    17.     It is in [Shelby’s] best interest for termination to be granted as
    to [Mother]. . . because [Mother’s] mental and/or emotional status[] would be
    detrimental to [Shelby] and/or prevent [Mother] from providing safe and stable
    care and supervision for [Shelby] and from effectively parenting [Shelby].
    18.     It is in [Shelby’s] best interest for termination to be granted as
    to [Mother]. . . because [Mother has] not paid child support consistently with
    the child support guidelines promulgated by the Department of Human
    Services pursuant to Tenn. Code Ann. § 36-5-101.
    3
    (...continued)
    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.
    4
    19.    It is in [Shelby’s] best interest for termination to be granted as
    to [Mother]. . . because [Mother has] not paid a reasonable portion of the
    children’s substitute physical care and maintenance when financially able to
    do so.
    20.    It is in [Shelby’s] best interest for termination to be granted as
    to [Mother]. . . because [Mother has] shown little or no interest in the welfare
    of the children.
    21.    It is Shelby K.’s best interest for termination to be granted as to
    [Mother] . . . because Shelby has disclosed she was sexually abused by
    [Mother].
    The evidence bearing on the court’s findings relative to Shelby’s best interest was
    extensive. Tina Waits and Jennifer Palmer, case workers with the Child Protective Services
    Division of the Department, testified regarding the Department’s involvement with the family
    for several years, and the conditions and circumstances which led to the filing of the
    dependent and neglect proceeding. Haley Meares, a family service worker with the
    Department, began working with the family when the children were placed in the
    Department’s custody. Ms. Meares testified at length regarding Shelby’s condition when she
    came into custody and the conditions in Mother’s home which had not been remedied since
    that time; Ms. Meares had concerns, specifically related to the safety and stability of the
    home environment and Mother’s inability after two years to complete a series of parenting
    classes. Michele Ries, a licensed clinical social worker who had provided trauma-focused
    cognitive behavioral therapy for Shelby since October 2011, testified at length as to Shelby’s
    physical and developmental condition when she began therapy as a five year old, and the
    “amazing” progress Shelby had made while in foster care; Ms. Ries also expressed concerns
    regarding domestic violence in Mother’s home, Mother’s pattern of cohabitating with men
    who are physically, sexually or mentally abusive to Mother’s children without her protection,
    and Mother’s failure to attend recommended individual and family counseling sessions.
    Shelby’s foster mother testified as to Shelby’s condition and needs when she came into foster
    care, her progress since that time, and her need for continued services and therapy to address
    her developmental problems, social skills, and sexual abuse. Taken as a whole, the testimony
    was clear and convincing that termination of Mother’s rights was in Shelby’s best interest
    and in accordance with the factors at Tenn. Code Ann. § 36-1-113(i).
    5
    III. C ONCLUSION
    For the foregoing reasons, we affirm the decision of the trial court terminating
    Mother’s parental rights.
    ________________________________
    RICHARD H. DINKINS, JUDGE
    6