In Re Casey C. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 1, 2016
IN RE CASEY C., ET AL.
Appeal from the Juvenile Court for Montgomery County
No. 15-316, 15-317, 15-318 Tim Barnes, Judge
___________________________________
No. M2016-01344-COA-R3-PT – Filed December 19, 2016
___________________________________
This is a termination of parental rights case. Mother/Appellant appeals the termination of
her parental rights to three minor children on the grounds of: (1) abandonment by failure
to provide a suitable home; (2) abandonment by willful failure to support; and (3)
persistence of the conditions that led to the children’s removal from Appellant’s custody.
The trial court also found, by clear and convincing evidence, that termination of
Appellant’s parental rights is in the children’s best interests. Discerning no error, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and W. NEAL MCBRAYER, J., joined.
Gregory D. Smith, Clarksville, Tennessee, for the appellant, Lisa C.
Herbert H. Slatery, III, Attorney General and Reporter; and Alexander S. Rieger,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
OPINION
I. Background
The three minor children at issue in this case were born to Lisa C. (―Mother‖ or
―Appellant‖) and Chad C. (―Father‖).1 Casey C. was born in July of 2004;2 Corey C. was
born in December of 2006, and Leaya C. (together with Casey C. and Corey C., the
―Children‖) was born in July of 2008.
On or about October 28, 2010, DCS received a referral alleging environmental
neglect. On October 28, 2010, Child Protective Services (―CPS‖) visited the home and
found that the family had no electricity and inadequate food. On November 1, 2010,
DCS filed a petition for temporary legal custody and removal of the Children based on
allegations of drug exposure and environmental neglect. In its petition, DCS specifically
averred that both parents were ―on drugs using crack. The family’s electricity is cut off. .
. . The parents have been asking for food and food stamps.‖ On the same day, the trial
court entered a protective custody order removing the Children from the home and
awarding temporary custody to DCS.
On July 16, 2012, nunc pro tunc to October 27, 2011, DCS filed a notice and
motion for trial home visit seeking a trial home visit between Mother, Father and the
Children. The trial court granted the motion and approved a ninety-day trial home visit.
On January 19, 2012, the trial court entered an order stating that the trial home visit
would self-execute on January 25, 2012, when complete care, custody and control of the
Children would be restored to Mother and Father. Unfortunately, the trial home visit did
not lead to reunification.
On July 19, 2013, DCS filed a petition for dependency and neglect and sought a
protective order prohibiting Mother from allowing the Children contact with the Father.
In its dependency and neglect petition, DCS alleged, in relevant part, that, on July 13,
2013, DCS had contacted Mother by phone in furtherance of its investigation. The CPS
investigator noted that Mother ―was slurring her words, and was unable to answer [the
CPS investigator’s] questions.‖ Based on the phone conversation, CPS proceeded to a
home visit. CPS investigators reported that, during the home visit, they ―observed that
[Mother] was clearly intoxicated. [Mother] continued to have slurred speech and was not
able to maintain balance.‖ CPS investigators further observed that Mother ―was not able
to walk through the home without using the walls and furniture to prevent her from
falling.‖ CPS investigators asked Mother about her intoxicated condition, and Mother
replied that ―she had two drinks today and that was all.‖ CPS investigators also asked
whether Mother had taken any prescription medication, to which she replied that ―she had
1
Father’s parental rights were terminated by order of April 4, 2016. He did not appeal.
2
In cases involving minor children, it is the policy of this Court to redact the parties’ names so as to
protect their identities.
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not taken any of her pain medication today.‖3 However, when CPS investigators
performed a pill count, they observed that Mother
provided CPS [investigators] with three medications Hydrocodone,
Carisoprorol, and Alprazolam. All three of the prescriptions were filled on
July 12, 2013 and there were 56 pills provided for each prescription. The
instructions on each were to take four pills per day. CPS [investigators] . . .
noted that there were seven Carisoprorol left in the bottle, which indicates
that 49 pills were taken within the previous four days. CPS [investigators]
observed the prescription of Hydrocodone, there were 34 pills remaining in
the bottle. If taken as prescribed, there should have been 40 pills remaining
in the bottle. CPS [investigators] observed the Alprazolam prescription;
there were 50 remaining which indicates that [Mother] has taken less than
prescribed.
Mother explained the prescription discrepancy by stating that Father had ―broken into the
family home and stole[n] her medication.‖
In response to DCS’s petition for dependency and neglect, Mother agreed to sign
an immediate protection agreement, allowing the Children to temporarily reside with
Samuel R., who was the pastor of Mother’s church and a registered foster parent. In light
of this agreement, DCS did not immediately move forward with its dependency and
neglect / custody petition. However, in the fall of 2013, Mr. R. notified DCS that he and
his wife could no longer financially support the Children. Because Mr. R. could only be
compensated for foster care if the Children were in State custody, on September 26,
2013, the trial court entered a protective custody order removing the Children from
Mother’s custody and placing temporary custody with DCS. On November 26, 2013, the
trial court entered an order adjudicating the Children to be dependent and neglected. The
trial court specifically found that ―the [C]hildren are dependent and neglected within the
meaning of the statute base[d] on Mother’s continued drug and alcohol use within the
home.‖
On January 26, 2015, DCS filed a petition to terminate Mother’s parental rights.
As grounds for termination, DCS averred: (1) abandonment by willful failure to support
the Children; (2) abandonment by failure to provide a suitable home after reasonable
efforts by DCS; (3) abandonment by willful failure to visit the Children; and (4)
persistence of the conditions that led to the Children’s removal from Mother’s home.
DCS also averred that termination of Mother’s parental rights was in the Children’s best
3
In 2009, Mother was involved in a car wreck that left her in a coma for six weeks. Mother testified that
she is in constant pain and has trouble with her short-term memory.
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interests. By separate orders, which were both entered on March 3, 2015, the trial court
appointed a guardian ad litem to represent the Children and appointed an attorney for
Mother. By order of August 20, 2015, a new attorney was appointed to represent
Mother, and the case was continued to allow Mother’s new attorney time to prepare for
the hearing on DCS’s petition to terminate parental rights.
The trial court heard the petition to terminate parental rights on December 1 and 7,
2015. By order of April 4, 2016, the trial court found that there was clear and convincing
evidence that Mother’s parental rights to the Children should be terminated on the
grounds of: (1) abandonment by willful failure to support; (2) abandonment by failure to
provide a suitable home; and (3) persistence of the conditions that led to the Children’s
removal from Appellant’s custody. The trial court also found, by clear and convincing
evidence, that it was in the children’s best interest that Mother’s parental rights be
terminated. Mother appeals.
II. Issue
The sole issue for review is whether the trial court erred in terminating Mother’s
parental rights.
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 children’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 children’s best
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interests 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). 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). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).
IV. Grounds for Termination of Mother’s Parental Rights
As noted earlier, the trial court relied on the following statutory grounds in
terminating Appellant’s parental rights: (1) abandonment by willful failure to support,
Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(i); (2)
abandonment by failure to establish a suitable home and lack of concern, Tennessee Code
Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(ii); and (3) persistence of the
conditions that led to the Children’s removal, Tennessee Code Annotated Section 36-1-
113(g)(3). 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 on 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. Reasonable Efforts
Before addressing the specific grounds for termination of Appellant’s parental
rights, we note that, historically, the decision to pursue termination of parental rights on
the grounds of abandonment has invoked DCS’s statutory duty to make reasonable efforts
to facilitate the safe return of children to the parent’s home. In re R.L.F., 278 S.W.3d
305, 315 (Tenn.Ct.App.2008) (citing Tenn. Code Ann. §§ 37-1-166(b), –166(a)(2), –
166(g)(2)); see also In re Tiffany B., 228 S.W.3d 148, 151, 160 (Tenn.Ct.App.2007)
(vacating a finding of abandonment, substantial noncompliance, and persistence of
conditions for failure to make reasonable efforts). However, in In re Kaliyah S., 455
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S.W.3d 533 (Tenn. 2015), the Tennessee Supreme Court specifically overruled ―the
holding of In re Tiffany B. and other cases following the holding in In re C.M.M. to the
extent that the court required DCS to prove by clear and convincing evidence that it made
reasonable efforts to reunify as a precondition to termination of parental rights (citations
omitted).‖ Id. at 555 n.34. In Kaliyah, the Court specifically stated that
proof of reasonable efforts is not a precondition to termination of parental
rights of a respondent parent. As with other factual findings made in
connection with the best interest analysis, reasonable efforts must be
proven by a preponderance of the evidence, not by clear and convincing
evidence. 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 the termination is in the child’s best interest (citations
omitted).
Id. at 555.
Nonetheless, proof of reasonable efforts is specifically required by statute to prove
the ground of abandonment by failure to provide a suitable home. Tennessee Code
Annotated Section 36-1-102(1)(A)(ii)’s definition of abandonment requires DCS to make
reasonable efforts to assist the parents to establish a suitable home. The statute focuses on
the four month period following removal of the children from the parent’s custody. In its
order terminating Mother’s parental rights, the trial court outlined the various efforts
DCS made to assist Mother in fulfilling her obligations under the permanency plans and
concluded that, during the relevant time period, ―DCS made reasonable efforts to assist
[Mother] to establish a suitable home for the children, but [Mother] has failed to make
even minimal efforts to provide a suitable home for her children.‖ Although Appellant
did not raise an issue concerning the trial court's findings on DCS’s reasonable efforts,
because DCS’s obligation to provide reasonable efforts is triggered by the trial court’s
reliance on the grounds of abandonment by failure to provide suitable housing, we have
reviewed the record to determine whether the evidence preponderates in favor of the trial
court’s findings concerning DCS’s reasonable efforts. Although Mother testified that
DCS had provided no services or help to her, the record indicates otherwise. DCS
caseworker, Joi Mosley, testified that DCS developed permanency plans for the Children.
These plans set out tasks and goals that would help Mother regain custody of the
Children. Mother testified that she understood her requirements under these plans. Of
primary concern was Mother’s lack of proper housing, her lack of income, and her
continued drug use. To aid Mother in addressing these concerns, Ms. Mosely testified
that DCS provided Mother with a list of employment opportunities and offered to provide
her with transportation to any job interviews. DCS set up parenting classes and alcohol
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and drug treatment. However, Ms. Mosley testified that, when she would attempt to
contact Mother to come in for drug screenings, Mother would often not answer the call.
Ms. Mosley further stated that she attempted to assist Mother with completing the
necessary forms to apply for disability, but Mother would never meet with Ms. Mosley to
complete the paperwork. From the entire record, and in light of the particular facts of this
case, we conclude that the evidence supports the trial court’s finding that DCS has made
reasonable efforts to assist Mother; however, for the reasons discussed below, it does not
appear that Mother has availed herself of these opportunities.
B. Abandonment by Willful Failure to Support
Tennessee Code Annotated Section 36-1-113(g)(1) provides that termination of
parental rights may be based upon the ground of ―[a]bandonment by the parent or
guardian, as defined in § 36-1-102....‖ Tennessee Code Annotated Section 36-1-
102(1)(A)(i) defines abandonment, in relevant part, as follows:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent or parents or a guardian or guardians of the child who is the subject
of the petition for termination of parental rights or adoption, that a parent or
parents or a guardian or guardians . . . have willfully failed to . . . to
support or have willfully failed to make reasonable payments toward the
support of the child.
Id.
Failure to support a child is ―willful‖ when a person is aware of his or her duty to .
. . support, has the capacity to do so, makes no attempt to do so, and has no justifiable
excuse for not doing so. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).
Willfulness depends on the actor’s intent, and intent is seldom capable of direct proof. Id.Therefore, the trier-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct. Id. ―Whether a parent failed to . . . support [his or her] child
is a question of fact. Whether a parent’s failure to visit or support constitutes willful
abandonment, however, is a question of law.‖ In re Adoption of Angela E., 402 S.W.3d
636, 649 (Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810
(Tenn. 2007)). Whether there is a court order, requiring a parent to support his or her
child, is not dispositive because Tennessee Code Annotated Section 36-1-102(1)(H)
provides that ―every parent who is eighteen (18) years of age or older is presumed to have
knowledge of a parent’s legal obligation to support such parent's child or children.‖
Therefore, a parent’s obligation to support his or her child exists regardless of a court
order requiring the parent to pay support. See, e.g., In re Shandajha A.G., No. E2012-
-7-
02579-COA-R3-PT, 2013 WL 3787594 (Tenn. Ct. App. July 17, 2013).
The relevant four-month time period in this case is September 26, 2014 until
January 25, 2015. Mother testified that, during this time, she gave the Children small
amounts of money, i.e., one or two dollars for use in vending machines. Mother testified
that, on occasion, she would bring small toys or clothes for the Children when she
participated in visitation. Concerning these items, the trial court found that:
If the Court were to take the evidence most favorable to [M]other,
according to her own testimony, it would find that she testified that she
would give the children money for a book fair or science fair, no specificity
as to that, but that she would occasionally give them a dollar or two . . . that
she would sometimes bring snacks, that she had on occasion given them
money for vending machines at DCS, and that she had taken them toys and
birthday and Christmas presents in 2012. Children cannot survive on such
meager support in kind, if, in fact, any of the [aforementioned] even took
place.
Although the trial court does not use the term ―token support‖ in its order, it is clear that
the trial court found that the small amount of money and gifts that Mother allegedly gave
to the Children was token support, which did not rise to the level of support necessary to
preclude a finding a willful failure to support. As explained by the Tennessee Supreme
Court,
[t]oken support payments are not sufficient to preclude a finding of a
willful failure to support. Token support is support that ―under the
circumstances of the individual case, is insignificant given the parent’s
means.‖ Tenn. Code Ann. § 36-1-102(1)(B). In the context of token
support, the word ―means‖ connotes both income and available resources
for the payment of debt. In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003
WL 21266854, at *11 n. 24 (Tenn. Ct. App. June 3, 2003); see also Black’s
Law Dictionary 1070 (9th ed. 2009).
In re Adoption of Angela E., 402 S.W.3d 636, 641 (Tenn. 2013). Here, Mother claimed
that her lack of support (other than the token support mentioned above) was not willful
because of the injuries she had sustained in a car accident some thirteen years prior to the
date of hearing on the petition to terminate her parental rights. Although Mother testified
that she is unable to work (so as to have money to provide support for the Children), in its
order terminating her parental rights, the trial court specifically found that
[t]here is absolutely no proof that was tendered to the Court that [Mother]
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has actively pursued disability with the social security agency, however she
testifies that she has applied ten times.
This finding is supported by the preponderance of the evidence. Although Mother stated
that she had applied and been denied disability numerous times, she failed to provide any
proof of her attempts. Furthermore, there is nothing in the record to show that Mother is
physically or mentally unable to work. In fact, Mother was briefly employed, in the fall
of 2015, at a thrift store. However, she was fired from that job for not showing up.
Mother testified that she was sick and called in, but that her message did not get to her
manager. In total, Mother was employed for three weeks. From the evidence, the trial
court found that her failure to support the Children was willful. Specifically, the court
found that there is
no evidence that this wreck that happened some 13 years ago has rendered
her unable to be employed. If, in fact, she has applied for disability ten
times as she testified, the Court would wonder what kind of magical
thinking makes you think that the eleventh time is the charm.
The Court finds that the [M]other has not taken reasonable steps to
have gainful employment, that she has during her extended period of
unemployment abused drugs and has consistently tested positive for
cocaine, that despite having provided only token support for her children,
she smokes by her admission, some ten cigarettes [per day] and if she had
provided support that the cigarettes and her cocaine cost, that would get her
out of this problem of having failed to support her children. [Mother] has
chosen to indulge her own habits and addiction at the expense of her
relationship with her children and at the expense of her children being
supported by a parent.
Mother’s own testimony supports the trial court’s finding:
Q [to Mother]: You also testified . . . that the fact that you don’t have a job,
which [according to] your testimony is the sole reason why you haven’t
been able to [support the Children], was not willful. But you had a job at
City Thrift in October 2015; is that correct?
A. Yes, ma’am.
***
Q. Okay. So you’re able to have a job. You’re capable of having a job.
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Yes or no?
A. No. That job, it was really hard on me.
Q. But you were capable—they hired you; correct?
A. They hired me.
Q. You worked there for three weeks; is that correct?
A. Yes, ma’am.
Q. So you were capable of working?
A. Yes.
***
Q. So you smoke a pack of cigarettes every two days; correct?
A. Yeah.
Q. How do you pay for those cigarettes?
A. My friend.
***
Q. How do you supply your cocaine habit?
A. Friends will come over. And it’s not my cocaine. It’s theirs.
Q. So do your friends just give you cocaine for free?
A. Yeah.
Q. How are you paying for your storage unit that your furniture is stored
in?
A. My friends are—her and her husband are helping me pay that.
Q. So your friends are paying for your cigarettes, for your drugs, and for
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your storage unit, but your friends haven’t offered to help pay for your
kids?
A. No, ma’am.
It is clear from the foregoing testimony, and the record as a whole, that Mother is able to
get money for her cigarette and cocaine habits, but is unconcerned with providing any
meaningful support for the Children. We conclude, therefore, that the facts, as found by
the trial court, are supported by the preponderance of the evidence and clearly and
convincingly establish the elements necessary to terminate Appellant’s parental rights on
the ground of abandonment by willful failure to support. Tenn. Code Ann. § 36-1-
113(g)(1).
C. Abandonment by Failure to Establish a Suitable Home and Lack of Concern
Tennessee Code Annotated Section 36-1-102(1)(A)(ii) further defines
―abandonment‖ for purposes of termination of parental rights as follows:
(ii) ... 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.
Id.As discussed above, the Children were taken into DCS custody due, in part, to the
sexual abuse perpetrated by Father against Leaya. The record indicates that DCS made it
abundantly clear to Mother that, if she was to have contact with the Children, she could
not have them around Father. Nonetheless, Mother continued to live with Father
because, according to her testimony, he was her sole means of support and, without his
income, she would have been homeless. As found by the trial court:
At the beginning of this case when the children came into custody, the
[M]other did not have a suitable home for them. That is one of the reasons
they came into custody. The [M]other has resorted to living with the
person that she knew was accused of molesting one of her children. She
chose to do that because, by her own testimony, otherwise she would have
been homeless. So she chose to live with this man knowing and being
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advised that she could not have her children so long as she lived with him.
She did not have sufficient income at any relevant period to provide a
suitable home. And again, the Court finds no reason to find her disabled
and would find this failure to provide a suitable home a willful refusal to
become gainfully employed.
Although Mother testified that she had filled out several applications for housing, the trial
court noted that her efforts to procure housing without first procuring employment was
―some type of magical thinking.‖ Again, Mother’s unwillingness to engage in any
meaningful employment negates her ability to provide a proper home for the Children.
Simply put, without an income, she cannot afford housing. Accordingly, Mother has
chosen to live with the person accused of abusing her child.
Not only does the record indicate that Mother has failed to provide a suitable
physical abode for the Children, but (by her own admission) she also continues to use
illegal drugs. From the record, it is clear that Mother’s drug use has kept her from taking
the necessary steps to regain custody of her Children. For example, around the time that
Mother was fired from her thrift store job, she tested positive for cocaine use. It appears
that her inability to maintain consistent employment and her inability to make good
parenting choices is due, at least in part, to her addiction, which (as discussed below) has
not been treated due to Mother’s lack of participation in her own recovery.
From the record, we conclude that the facts, as found by the trial court, are
supported by the preponderance of the evidence and clearly and convincingly establish
the elements necessary to terminate Appellant’s parental rights on the ground of
abandonment by failure to provide a suitable home and lack of concern. Tenn. Code Ann.
§ 36-1-113(g)(1).
D. Persistence of Conditions
Tennessee Code Annotated Section 36-1-113(g)(3) provides that termination of
parental rights may be based upon persistence of conditions:
(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;
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(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
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
Id.; see also In re S.Y., 121 S.W.3d 358, 369 (Tenn.Ct.App.2003). 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).
In the case of In re Audrey S., 182 S.W.3d 838 (Tenn.Ct.App.2005), this Court
held that, based upon 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. Id. at 872. As discussed above, the Children were
adjudicated to be dependent and neglected based on environmental neglect and Mother’s
continued drug use. In its order terminating her parental rights, the trial court specifically
found that:
When the children came into custody, [Mother] did not have a
suitable home. Today[, Mother] does not have a suitable home. When the
children came into custody, [Mother] did not have employment or a legal
source of income. Today, some two years later, [Mother] still does not
have a legal means of income.
Two years ago, [Mother] demonstrated a problem with drugs, having
tested positive for cocaine. Many times during the two years . . .[that the]
children have been in foster care and as late as November 2015, [Mother]
has tested positive for cocaine and [Mother], by her own admission, used
cocaine three weeks ago. The conditions that led to the children coming
into the custody of DCS persist unto this day and have not changed a bit
over the past 26 months.
As discussed in detail above, despite DCS’s efforts to assist her, Mother has failed
to procure adequate housing. In fact, there is little evidence in the record concerning
Mother’s current living arrangement. From her testimony, however, it is clear that she
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maintains regular contact with ―friends‖ who provide her with cigarettes and drugs.
Certainly, Mother’s choice in ―friends‖ does not bode well for the home environment that
she would provide for her Children. More concerning, however, is the fact that Mother
continues to test positive for cocaine use. As set out in context above, even in her own
testimony, she does not deny that she uses cocaine. Although Mother has, on a few
occasions, tested negative for drugs, the majority of the drug test results (included in the
record) show positive for cocaine. DCS has assisted Mother in making contact with drug
and alcohol treatment facilities; however, Mother has failed to follow through after the
initial assessment. In her testimony, Mother stated that she has not been ready to address
her addiction, but opines that she ―just need[s] a chance, just six months so that I can go
and fix myself. Just six months so that I can get the help that I need . . . .‖ From the
record, Mother has had ample opportunity and assistance to make permanent changes that
would allow the Children to be returned to her custody; however, as of the hearing date,
she had not availed herself of these opportunities. Given Mother’s history of
noncompliance, there is little likelihood that additional time would prompt her to make a
change in her circumstance. This Court has previously held that ―in determining whether
grounds for termination of the parental rights of a biological parent are established, both
the trial court and this Court must look to the evidence of the parent’s past actions, rather
than the parent’s future aspirations.‖ In re Adoption of Logan A.S., No. W2009-02661-
COA-R3-PT, 2010 WL 3984712, at *8 (Tenn. Ct. App. Oct. 12, 2010). Based on the
totality of the circumstances, we conclude that there is clear and convincing evidence in
the record to support the trial court’s finding that the conditions that led to the Children’s
removal from Mother’s custody still persist, and ―[t]here is little likelihood that these
conditions will be remedied at an early date so that the [C]hild[ren] can be safely returned
to the parent . . . in the near future.‖ Tenn. Code Ann. § 36-1-113(g)(3)(B).
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 a ground
for termination of parental rights, then ―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). ―The child’s best interest must be viewed from
the child’s, rather than the parent’s, perspective.‖ White, 171 S.W.3d 194.
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The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child. These factors include, but are not limited to:
(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;
***
(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 or controlled substances as may render the
parent or guardian consistently unable to care for the child in a safe and
stable manner;
***
(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). 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.
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In its order, the trial court stated, in relevant part, that
[t]he Court has heard the testimony of the resource parent, and would find
that the children have been well situated in [Samuel R.’s] home for over
eight months. They have provided very well for the needs of the children
and while in their home, the children have thrived. Based on the oldest
child’s testimony, there is a strong bond that exists between the children
and their foster family. It is also evident by the child’s testimony that he
believes he would be better off to be with the foster parents than to return to
his mother’s care. Having heard the testimony and reviewed the evidence,
the Court would find by clear and convincing evidence that the termination
of . . . [Mother’s] parental rights would be in the children’s best interest[s].
From our review, the record supports the trial court’s finding that termination of
Mother’s parental rights is in the Children’s best interests. As discussed above, despite
DCS’s efforts to assist her, Mother has failed to make any meaningful change to her
circumstances. She continues to be unemployed. She had not found suitable housing,
and she continues to use drugs. She maintains friendships with people who enable her to
continue her drug habit. In addition, Mother has failed to provide anything other than
token support for the Children. Although Mother has maintained minimum contact with
the Children, there is no evidence that there is a meaningful relationship between Mother
and the Children. Rather, the evidence shows that the Children have bonded with their
foster parents. The evidence further shows that the Children have been well cared for in
their current foster placement. Given the Children’s ages and the lack of stability in
Mother’s household, we conclude that it would likely cause the Children emotional and
psychological harm to be placed in Mother’s custody. 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’s parental rights is in the
Children’s best interests.
VI. Conclusion
For the foregoing reasons, we affirm the trial court’s order, terminating Mother’s
parental rights to these Children. The case is remanded for such further proceedings as
may be necessary and are consistent with this opinion. Costs of the appeal are assessed
to the Appellant, Lisa C. Because Lisa C. is proceeding in forma pauperis in this appeal,
execution for costs may issue if necessary.
_________________________________
ARNOLD B. GOLDIN, JUDGE
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