In Re Isabella G. ( 2017 )

10/03/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 22, 2017 Session
IN RE ISABELLA G. ET AL.
Appeal from the Juvenile Court for Rutherford County
No. TC2512T Donna Scott Davenport, Judge
___________________________________
No. M2016-02105-COA-R3-PT
___________________________________
Parents appeal the termination of their parental rights to their two children. The juvenile
court found clear and convincing evidence of five grounds against the father and three
grounds against the mother and that termination of parental rights was in the children’s
best interest. DCS concedes on appeal that persistence of conditions was not an
appropriate ground for terminating mother’s parental rights and that abandonment by
failure to visit was not an appropriate ground for terminating father’s parental rights. We
agree. As to the remaining grounds, we conclude that DCS failed to prove abandonment
by failure to provide a suitable home and persistence of conditions as to the father. But
the record contains clear and convincing evidence to support the grounds of abandonment
for wanton disregard for the welfare of the children and substantial noncompliance with
the requirements of the permanency plans as to both parents. We further conclude that
the record contains clear and convincing evidence that termination is in the children’s
best interest. Thus, we affirm the termination of parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed as
Modified
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT,
J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Carl Moore, Murfreesboro, Tennessee, for the appellant, Kimberly N.
Brandon M. Booten, Murfreesboro, Tennessee, for the appellant, Daniel G.
Herbert H. Slatery III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
A. FACTUAL AND PROCEDURAL BACKGROUND
Kimberly N. (“Mother”) and Daniel G. (“Father”) are the parents of Isabella G.
and Jaxson G., born in November 2012 and October 2013, respectively. Almost from the
moment of Jaxson’s arrival, the Tennessee Department of Children’s Services (“DCS”)
was involved with the couple and their children. Jaxson tested positive for opiates at
birth. But DCS closed its investigation after it was unable to locate the parents.
On May 8, 2014, DCS received a second referral alleging drug exposure of the
children.1 On this occasion, DCS located the parents and children in an extended stay
hotel. Both parents tested positive for oxycodone, opiates, and benzodiazepines.
Because of the parents’ drug use and environmental concerns, DCS referred the
family for the Therapeutic Intervention, Education, and Skills or “TIES” program.2
Among other things, the program required the parents to complete an alcohol and drug
assessment and submit to random drug screens. After the initial drug screen, from May
2014 through July 2014, Mother failed three out of three random drug screens, while
Father failed two out of five.
On August 19, 2014, DCS received another referral regarding the children, this
time for abandonment. Mother was incarcerated, and Father and the children had moved
in with his mother, the children’s paternal grandmother, and her husband. Father had left,
according to his mother, to be with Mother upon her release from jail, but he had been
gone for two days. Father’s mother did not want to continue to care for the children
without Father’s participation.
Unable to locate the parents or to find other possible family placements for the
children, DCS removed the children from the home. At the time of removal, Jaxson had
eczema all over his body, and carpet pieces were embedded into his skin. Isabella had
severe dental problems, which ultimately required six crowns and four composite
restorations for her teeth.
1
Mother has another son, who is not at issue in this appeal.
2
The TIES program “provides intensive family preservation services to parents of children, ages
0-18, who are at risk of losing custody because of alcohol or substance use issues or who have a child in
state custody who will be returning to the home within 72 hours.” Therapeutic Intervention, Education
and Skills (TIES) Brochure, available through the Tennessee Department of Mental Health and Substance
Abuse Services website, www.tennessee.gov/behavioral-health/article/therapeutic-intervention-education-
and-skills-ties-program.
2
On August 22, 2014, in the Juvenile Court for Rutherford County, Tennessee,
DCS filed a petition for dependency and neglect and for emergency temporary legal
custody of the children. The court issued an ex parte protective custody order that same
day. The court did allow the parents, who by this time had been located, a minimum of
four hours of supervised visitation per month conditioned upon passing a drug screen
prior to the scheduled visit.
In separate hearings due to the parents’ incarceration, the court adjudicated the
children dependent and neglected. Father stipulated that the children were dependent and
neglected due to his residential instability, financial instability, and incarceration. Mother
stipulated that the children were dependent and neglected due to residential instability,
financial instability, and drug exposure. Both parents also agreed that the children should
remain in DCS’s custody.
On August 26, 2015, DCS filed a petition to terminate parental rights of both
Mother and Father to their two children. The petition alleged five statutory grounds:
abandonment for failure to visit by an incarcerated parent, abandonment by wanton
disregard for the welfare of the children by an incarcerated parent, abandonment for
failure to provide a suitable home, substantial noncompliance with the permanency plans,
and persistence of conditions. The juvenile court conducted a trial on the petition over
the course of four days in March 2016.
B. PROOF AT THE HEARING
1. Permanency Plans
Following the children’s removal, DCS, with the parents’ participation, developed
three permanency plans. The first permanency plan was created on September 5, 2014,
with the goal of returning the children to the parents. The second permanency plan,
developed approximately six months later on March 4, 2015, added a second goal,
adoption. While the parents participated in the development of the second plan, they
objected to adding adoption of the children as a goal. The third and final permanency
plan was developed on September 3, 2015, after the termination petition had been filed.
At trial, Father acknowledged that he made no progress toward fulfilling the
requirements of the permanency plans until the fall of 2015. In Father’s words, “I would
absolutely own that I did nothing for the first year” after removal of his children. Mother
also acknowledged that she did not get much accomplished after her children were
removed. Both parents attributed their lack of progress on the requirements of the first
and second plans to homelessness and lack of a support system.
3
The parents remained homeless the first year of the children’s removal into state
custody. But Mother and Father were also in and out of jail. Prior to the children’s
removal into state custody, Mother pled guilty to two counts of fraudulently using a
credit card over $1,000 and one count of driving under the influence.
Even after the children’s removal into state custody, Mother continued to engage
in criminal behavior. From November 2014 through June 2015, Mother was arrested for
and pled guilty to forgery between $1,000 and $10,000; attempted forgery between
$1,000 and $10,000; indecent exposure; and three separate instances of public
intoxication. Mother’s probation was revoked on August 20, 2015, and she was
sentenced to serve six months. She was released from jail mid-December 2015.
A DCS caseworker testified Father was arrested on September 27, 2014.3
According to Father, he realized that he was addicted to alcohol when he got “arrested
four times in a six-month span,” from March to July 2015, for public intoxication and
indecent exposure. Although one public intoxication charge was eventually dismissed,
Father pled guilty to two charges of public intoxication and one charge of indecent
exposure during this time. Father was incarcerated from July 24 until August 12, 2015,
shortly before the petition for termination of parental rights was filed.
Progress toward fulfillment of permanency plan requirements only really began
after the petition for termination of parental rights was filed. Father became involved
with “Doors of Hope,” a program for individuals reentering society after incarceration,
following his release from jail. He began living at the Doors of Hope halfway house, and
in September 2015, he started a job.
Mother completed parenting classes in November 2015 while she was in jail.
Upon her release from jail, Mother began living in a Doors of Hope shelter for women.
By late January 2016, with the assistance of Doors of Hope, Mother and Father moved
into a partially furnished, two-bedroom/two-bath townhouse. And, on February 1, 2016,
they entered into a one-year lease for the property with a third-party.4
Mother and Father continued working on their permanency plan responsibilities
even after trial had already begun. On March 14, they submitted a modified budget,
which reflected income from the job Mother started in January. Parents also submitted
paycheck stubs from February and March.
3
The record does not reveal what led to this arrest. At trial, Father did not dispute that he was
arrested on this date.
4
The third-party is a supporter of and a volunteer for the Doors of Hope program. The
townhouse is leased at a below-market rate.
4
Between the second and third days of trial, Mother and Father purchased a car.
The majority of funds for the purchase came from charitable contributions. Mother also
completed an intensive outpatient program for substance abuse.
2. Parents’ Visitation and Relationship with the Children
Mother and Father visited the children only sporadically, either because they failed
drug screens prior to the scheduled visit, they were incarcerated, or visits were cancelled
because of sickness or the weather. Mother and Father at times would not reschedule the
missed visits, which were required to be supervised. At a minimum, Mother and Father
were entitled to two monthly visits of two hours each, provided that each could pass a
drug screen.
Although the children were removed on August 19, 2014, visitation did not begin
until October 2014 because of failed drug screens. Both parents attended Isabella’s
dental surgery in October 2014, and Father had an additional visit with the children in the
same month. No visit occurred in November because both parents were incarcerated.
Both parents visited in December 2014 but were late.
In 2015, Father visited from February through April. He did not have another visit
until October 2015. Father had two visits in November 2015. Mother, on the other hand,
had no visits with the children in 2015.
In February 2016, both Mother and Father visited with the children. The children
were hesitant to go to Mother because they had not seen her since December 2014.
When the older child, Isabella, referred to her foster parents as “mommy” and “daddy,”
Father became visibly upset.
Mother and Father admitted that they had paid no child support. According to
Mother, she had the ability to pay since January 2016 but that she had not been asked to
pay any support. Father testified that, in 2015, he brought presents and a card for Jaxson
for his birthday but not Isabella’s, which occurred a month later. Father also testified that
he bought the children presents for Christmas 2015 but never gave them to the children
because something happened with the visits.
C. THE JUVENILE COURT’S RULING
On June 24, 2016, the court reconvened for the purpose of announcing its ruling,
findings of fact, and conclusions of law. Before announcing its decision, Mother’s
counsel orally requested to reopen the proof so that Mother could show her progress in
the three months since proof had been closed. DCS opposed the request. Because
Mother’s counsel could cite no legal authority for reopening the proof, the juvenile court
denied the motion.
5
On September 26, 2016, the court entered a final order terminating the parental
rights of Mother and Father to the children.5 The trial court terminated Father’s parental
rights on all of the alleged grounds. As to Mother, the trial court found the grounds of (1)
abandonment by wanton disregard for the welfare of the child by an incarcerated parent,
(2) substantial noncompliance with the requirements of the permanency plans, and (3)
persistence of conditions. The trial court also determined that termination of parental
rights was in the children’s best interest.
III.
A parent has a fundamental right, based in both the federal and State constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d
at 250. Our Legislature has identified those situations in which the State’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting
forth the grounds upon which termination proceedings may be brought. See Tenn. Code
Ann. § 36-1-113(g) (2017).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
First, parties seeking termination of parental rights must prove the existence of at least
one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1). Second, they must prove that terminating
parental rights is in the child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, the parties seeking to terminate parental rights must prove both the grounds
and the child’s best interest by clear and convincing evidence. In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of
A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002)). This heightened burden of proof serves “to minimize the possibility of
erroneous decisions that result in an unwarranted termination of or interference with these
rights.” In re Bernard T., 319 S.W.3d at 596. “Clear and convincing evidence” leaves
“no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). It
produces a firm belief or conviction in the fact-finder’s mind regarding the truth of the
facts sought to be established. In re Bernard T., 319 S.W.3d at 596.
5
An amended order terminating parental rights was entered on January 4, 2017, which included
pages inadvertently omitted from the September 26, 2016 order as found in the record.
6
On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). Additionally, as this Court has recently explained, “[w]hen the resolution of an
issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had
the opportunity to observe the witnesses and their manner and demeanor while testifying,
is in a far better position than this Court to decide those issues.” In re Navada N., 498
S.W.3d 579, 591 (Tenn. Ct. App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d
412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.
1997)). Thus, this Court gives great weight to the credibility accorded to a particular
witness by the trial court. Whitaker, 957 S.W.2d at 837.
In termination proceedings, “the reviewing court must then make its own
determination regarding whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, provide clear and convincing evidence
that supports all the elements of the termination claim.” In re Bernard T., 319 S.W.3d at
596-97. We review the trial court’s conclusions of law de novo with no presumption of
correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007). We “review the
trial court’s findings as to each ground for termination and as to whether termination is in
the child’s best interests, regardless of whether the parent challenges these findings on
appeal.” In re Carrington H., 483 S.W.3d 507, 525 (Tenn. 2016), cert. denied sub. nom.
Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44 (2016).
A. GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
As an initial matter, DCS concedes on appeal that the grounds of abandonment for
failure to provide a suitable home and persistence of conditions were not appropriate
against Mother and the ground of abandonment by failure to visit was not appropriate
against Father. After reviewing the record, we agree.6 Accordingly, we vacate the trial
6
As noted by DCS and discussed further below, for the ground of abandonment for failure to
provide a suitable home to apply against the parent, the child must have “been removed from the home of
the parent.” Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2017). Similarly, for the ground of persistence of
conditions to apply to a parent, the child must “ha[ve] been removed from the home of the parent.” Id.
§ 36-1-113(g)(3). Here, the proof showed that the children were removed from the home of Father, who
was living with his mother at the time. At the time of removal, Mother was incarcerated.
The ground of abandonment for failure to visit by an incarcerated parent applies when the parent
failed to visit “for four (4) consecutive months immediately preceding the parent’s . . . incarceration.” Id.
§ 36-1-102(1)(A)(iv). Here, from the time of removal until the filing of the petition for termination of
parental rights, Father was never free for a consecutive four-month period. Since the trial was held, the
statutory definition of “abandonment” for failure to visit by an incarcerated parent has changed to provide
the following:
7
court’s findings on the grounds for termination conceded by DCS and discuss below only
the grounds that DCS defends on appeal.
1. Abandonment
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). The General Assembly has provided
“five alternative definitions for abandonment as a ground for the termination of parental
rights.” In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005); see also Tenn.
Code Ann. § 36-1-102(1)(A) (2017) (defining the term “abandonment”). The juvenile
court concluded that Father abandoned the children under both the second and the fourth
definitions and Mother abandoned the children under the fourth definition. See Tenn.
Code Ann. § 36-1-102(1)(A)(ii), (iv).
a. Failure to Provide a Suitable Home
We first consider whether Father abandoned the children by failing to provide a
suitable home. A child has been abandoned under the second statutory definition if the
child has been removed from the home of a parent as a result of a finding that the child
was dependent and neglected, and “for a period of four (4) months following the removal,
the department . . . has made reasonable efforts to assist the parent . . . to establish a
suitable home for the child, but . . . the parent . . . ha[s] made no reasonable effort[] to
provide a suitable home and ha[s] demonstrated a lack of concern for the child to such a
degree that it appears unlikely that [the parent] will be able to provide a suitable home for
the child at an early date.” Tenn. Code Ann. § 36-1-102(1)(A)(ii). DCS’s efforts to
assist the parent “may be found to be reasonable if such efforts exceed the efforts of the
parent . . . toward the same goal.” Id. In evaluating those efforts, we are concerned with
the time period from August 20, 2014, to December 19, 2014.
We conclude that DCS failed to meet its burden of proof on the question of
reasonable efforts. The trial court found that “DCS made reasonable efforts throughout
this matter but specifically made reasonable efforts during the four months following the
removal . . . to assist [Father] . . . in the establishment of a suitable, stable and appropriate
If . . . there are not four (4) consecutive months without incarceration immediately
preceding either [the four-month period immediately preceding the filing of the petition
to terminate or the four-month period immediately preceding the parent’s incarceration],
a four-month period shall be created by aggregating the shorter periods of non-
incarceration beginning with the most recent period of nonincarceration prior to
commencement of the action and moving back in time.
Id. § 36-1-102(1)(A)(iv) (2017).
8
home.” But no evidence supports this finding. The testimony concerning when DCS
assisted Father with housing is vague at best.
A DCS caseworker testified about her efforts to assist Father with housing
“throughout the time that [she] had the case,” which was from August 2014 through May
2015. Her answers to questions posed by counsel for DCS do not appear to be limited to
just the four-month period following removal. As a result, we cannot determine when the
assistance was actually provided to Father and whether the assistance was rendered
within the four-month period following removal or some time thereafter. The only direct
evidence of DCS’s efforts in the four months following removal was the administration
of a few drug screenings. Based on this record, we conclude that the juvenile court erred
in terminating Father’s parental rights on the ground of abandonment for failure to
provide a suitable home.
b. Wanton Disregard for the Welfare of the Children
The juvenile court found that DCS had proven the fourth definition of
abandonment by clear and convincing evidence against both Father and Mother. This
definition of “abandonment” applies in cases in which the parent is incarcerated when the
petition to terminate is filed or had been incarcerated within the four-month period
preceding the filing of the petition and “contains two distinct tests for abandonment.” In
re Audrey S., 182 S.W.3d at 865. One test examines pre-incarceration visitation and
support, and the other examines the pre-incarceration conduct of the parent. The
incarcerated or formerly incarcerated parent is deemed to have abandoned a child if he or
she:
either has willfully failed to visit or 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
. . . incarceration, or the parent . . . has engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child.
Tenn. Code Ann. § 36-1-102(1)(A)(iv). The juvenile court found that Mother and Father
had both engaged in conduct prior to incarceration that exhibited a wanton disregard for
the children’s welfare.
Father was incarcerated for part of the four months preceding the filing of the
petition to terminate, and Mother was incarcerated when the petition was filed. The issue
here is whether the parents’ pre-incarceration conduct exhibited a wanton disregard for
the children’s welfare.
“Wanton disregard” is not a defined term, but “actions that our courts have
commonly found to constitute wanton disregard reflect a ‘me first’ attitude involving the
9
intentional performance of illegal or unreasonable acts and indifference to the
consequences of the actions for the child.” In re Anthony R., No. M2014-01753-COA-
R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015). The court may consider
all evidence relevant to determining “whether the parental behavior that resulted in
incarceration is part of a broader pattern of conduct that renders the parent unfit or poses
a risk of substantial harm to the welfare of the child.” In re Audrey S., 182 S.W.3d at
866. In In re Audrey S., we 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 welfare of a child.” Id. at 867-68.
On appeal, Mother does not dispute the trial court’s findings as to her criminal
convictions. Mother argues, however, that we should decline to follow our previous
approach to wanton disregard in In re Audrey S. because it is “incorrect.” Instead,
Mother asks that we hold that wanton disregard requires “the parent [to have] done
something that the courts find unforgivable” such as “conduct that is so egregious that it
forever brands that parent as unfit.” We decline to do so.
The parents next argue that the children were not in their care or custody when
they engaged in criminal behavior and, thus, their behavior did not put the children in any
danger. Although engaging in criminal behavior in the children’s presence certainly is
relevant as to whether there was wanton disregard, we disagree that the exhibited
behavior must be in a child’s presence. On several occasions, we have held that a parent
can engage in conduct exhibiting wanton disregard for the welfare of the child even
during pregnancy so long as the parent knows of the child’s existence. See, e.g., In re
Jeremiah N., No. E2016-00371-COA-R3-PT, 2017 WL 1655612, at *6 (Tenn. Ct. App.
May 2, 2017), perm app. denied, (Tenn. July 21, 2017) (affirming the ground of wanton
disregard when, after father learned of the mother’s pregnancy with the child but before
the child’s birth, he continued to engage in criminal behavior and was convicted of the
offense for which he was currently incarcerated); In re Jamazin H.M., No. W2013-
01986-COA-R3-PT, 2014 WL 2442548, at *9 (Tenn. Ct. App. May 28, 2014) (“The
offenses for which [f]ather is currently incarcerated—possession of cocaine with intent to
sell, unlawful possession of a firearm, and others—were committed while [m]other was
pregnant with [the child].”); In re O.J.B., No. W2009-00782-COA-R3-PT, 2009 WL
3570901, at *5 (Tenn. Ct. App. Nov. 2, 2009) (affirming the ground of wanton disregard
because the child was born with cocaine in her system and mother pled guilty to several
criminal charges after the child’s birth); cf. In re Mac L., No. E2016-00674-COA-R3-PT,
2016 WL 6876498, at *7 (Tenn. Ct. App. Nov. 22, 2016) (concluding that father’s pre-
incarceration conduct need not directly impact the child in a negative way to support a
finding of wanton disregard). As a result, we find Mother’s and Father’s arguments on
this point unavailing.
10
From our review of the record, we agree that clear and convincing evidence
supports the trial court’s finding of abandonment by wanton disregard. Jaxson tested
positive for opiates at birth, and Mother did not begin to address her drug addiction until
one year after his birth. Moreover, rather than work on regaining custody of her children,
Mother engaged in criminal conduct that led to her arrest almost on a continual basis
since May 2014. Before the children’s removal into DCS custody, Mother received three
convictions. Even after the children’s removal into DCS custody, and Mother was told to
not incur new criminal charges in order to regain custody of the children, Mother
continued engaging in criminal behavior, receiving six more convictions. Mother also
violated her probation. Based on her actions, Mother spent approximately half of 2015 in
jail, rendering her unable to visit her children, let alone care for them.
Father voluntarily left the children with his mother and her husband, presumably
to be with Mother. After the children were removed from the home, he received three
convictions in 2015, which include public intoxication and indecent exposure. At a
meeting in March 2015, Father admitted that he had an outstanding violation of
probation. Father admitted that he was addicted to alcohol after he was arrested four
times in six months. Although he was aware of his responsibilities, Father admitted that
he did nothing the first year the children went into state custody. Father failed a
breathalyzer test in May 2015 right before a scheduled visitation with the children.
2. Substantial Noncompliance with the Requirements of the Permanency Plans
The juvenile court found Mother and Father failed to substantially comply with
their responsibilities in the permanency plans. See Tenn. Code Ann. § 36-1-113(g)(2).
Before analyzing whether a parent complied with the permanency plan, the court must
find that the permanency plan requirements that the parent allegedly failed to satisfy are
“reasonable and related to remedying the conditions which necessitate foster care
placement.” In re Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. § 37-2-
403(a)(2)(C) (2014)). If the permanency plan requirements are reasonable, the court
must then determine if the parent’s noncompliance was substantial. Id. at 548-49. The
unsatisfied requirements must be important in the plan’s scheme. Id. A “[t]rivial, minor,
or technical” deviation from the permanency plan’s requirements does not qualify as
substantial noncompliance. In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004).
We agree with the juvenile court that the plan requirements were reasonable and
related to the conditions that necessitated the removal of the children. DCS removed the
children because of concerns about drug use, criminal behavior, and residential and
financial instability. The permanency plans required Mother and Father to be law-
abiding citizens, follow all the probation requirements, notify DCS of any legal
involvement, not incur any new charges, maintain contact with DCS and any other
providers involved in the case, keep their contact information current with all necessary
parties, obtain appropriate housing, obtain a legal means of support, participate in
11
parenting classes and demonstrate skills during visitation, develop a budget, complete a
transportation plan, complete a child care plan, not associate with any known drug users,
complete intensive outpatient programs for substance abuse and follow all
recommendations, submit to random drug screens and pill counts, complete a clinical
assessment with parenting and alcohol and drug components and follow all
recommendations, participate in medication management, and participate in individual
counseling. Mother was also required to follow-up with her doctors about her
prescriptions and to ensure she was on the right medications, and Father was required to
address anger management and anything else recommended by his counselor in
individual counseling.
Next, we must determine whether each parent’s noncompliance is substantial in
light of the importance of the requirements to the overall plan. In re Valentine, 79
S.W.3d at 548-49. Our focus is on the parents’ efforts to comply with the plan, not the
achievement of the plan’s desired outcomes. In re B.D., No. M2008-01174-COA-R3-PT,
2009 WL 528922, at *8 (Tenn. Ct. App. Mar. 2, 2009). “[A] permanency plan is not
simply a list of tasks with boxes to be checked off before custody is automatically
restored. Rather, it is an outline for doing the things that are necessary to achieve the
goal of permanency in children’s lives.” In re V.L.J., No. E2013-02815-COA-R3-PT,
2014 WL 7418250, at *8 (Tenn. Ct. App. Dec. 30, 2014). “[P]arents must complete their
responsibilities in a manner that demonstrates that they are willing and able to resume
caring for their children in the long-term, not on a month-to-month basis.” Id.
Parents first argue that none of the three permanency plans contained a statement
of responsibilities. The parental termination statute provides that parental rights may be
terminated where there “has been substantial noncompliance by the parent . . . with the
statement of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2)
(emphasis added). “[T]he statement of responsibilities serves a substantive purpose.” In
re Abigail F.K., No. E2012-00016-COA-R3-JV, 2012 WL 4038526, at *13 (Tenn. Ct.
App. Sept. 14, 2012). “If the parent is required to comply with the permanency plan,
then the permanency plan should clearly communicate to the parent: this is what you
must do to regain custody of your child. That is the purpose of the parent’s statement of
responsibilities.” Id.
We find the argument unavailing for at least two reasons. First, Mother and Father
did not testify that they were confused about what they had to do in order to regain
custody of the children. See In re Abigail F.K., 2012 WL 4038526, at *13 (considering
the evidence on substantial compliance even though there is no statement of
responsibilities in the permanency plan because “there is no dispute on appeal about what
most of Mother’s responsibilities were under the plan”). In fact, just a couple of months
before trial, parents began completing tasks in the permanency plan, sometimes without
informing DCS that they were doing so. Mother and Father also admitted at trial that
they understood their responsibilities under the plans. Rather than blaming their
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confusion as the parents did in In re Abigail F.K., they both blamed their failure to
comply with the plan requirements on being homeless and on lack of support.
Second, even if Mother or Father had testified to confusion regarding their
responsibilities, based on our review, Mother’s and Father’s responsibilities under the
permanency plans were clear. The “Action Step(s)” section under each area of concern
informs the parents of the steps that must be taken to regain custody of their children.
The form states explicitly that “both the desired outcomes and action steps . . . together
comprise the responsibilities of the parents[.]” It was not necessary for the permanency
plans to include a specific heading entitled “statement of responsibilities” so long as the
responsibilities of the parents were clearly communicated. The responsibilities were
clearly communicated here, and the responsibilities from one plan to the next remained
largely unchanged.7 Cf. In re Navada N., 498 S.W.3d at 604-05 (vacating the trial court’s
finding of sufficient proof of substantial compliance based on lack of clear statement of
responsibilities and the “myriad, varied plans put in place over the years in this case.”).
We conclude that clear and convincing evidence supports the finding that both
Mother and Father failed to substantially comply with the permanency plans. The parents
concede that they substantially failed to comply with the requirements of the first two
permanency plans.8 Our review of the record shows that, prior to the filing of the
termination petition, the parents only completed their clinical assessments and two hours
each of individual counseling.
After the filing of the petition to terminate parental rights, however, parents began
completing the tasks on the permanency plans. Parents were even submitting proof of
completion on the third day of trial. Specifically, the parents obtained housing, obtained
jobs, bought a car, and completed intensive outpatient programs and parenting classes.
But responsibilities remained unfinished. They were still in the process of participating
in couples counseling. Among other things, Mother had not begun individual counseling,
and Father had not completed his psychological assessment.
7
From the first permanency plan to the second, DCS added recommendations from Mother’s and
Father’s clinical assessments.
8
Mother argues that the trial court should have allowed her to reopen the proof so that she could
show her compliance with the third permanency plan. Specifically, Mother sought to show her efforts in
the months after the proof was closed. The decision to reopen proof is within the trial court’s discretion.
Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 149 (Tenn. 1991). “[T]he decision of the trial
judge . . . will not be set aside unless there is a showing that an injustice has been done.” Id. (quoting
State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985)). Because there has been no showing that an
injustice has been done, we conclude that the trial court did not abuse its discretion in denying Mother’s
motion to reopen the proof.
13
While we commend Mother and Father for their belated efforts and we hope that
they will continue, under the circumstances of this case, we conclude the efforts came too
late. See In re A.W., 114 S.W.3d 541, 546 (Tenn. Ct. App. 2003) (noting that
improvement can come “[t]oo little, too late”). The young children in this case had been
in foster care over a year before the parents made any serious effort at fulfilling their
responsibilities.
3. Persistence of Conditions
The juvenile court also found termination of Father’s parental rights appropriate
under Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly referred to as
“persistence of conditions.” See In re Audrey S., 182 S.W.3d at 871. The persistence of
conditions ground focuses “on the results of the parent’s efforts at improvement rather
than the mere fact that he or she had made them.” Id. at 874. The goal is to avoid having
a child in foster care for a time longer than reasonable for the parent to demonstrate the
ability to provide a safe and caring environment for the child. In re Arteria H., 326
S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other grounds, In re Kaliyah S.,
455 S.W.3d 533 (Tenn. 2015). The question before the court, therefore, is “the likelihood
that the child can be safely returned to the custody of the [parent], not whether the child
can safely remain in foster care.” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000
WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000).
This ground authorizes termination of parental rights when:
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 . . . 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 . . . in the
near future; and
(C) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable and
permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3). Each of the statutory elements must be established
by clear and convincing evidence. In re Valentine, 79 S.W.3d at 550.
14
Here, the children were removed for more than six months from Father’s home by
court order adjudicating them to be dependent and neglected. According to the order,
Father stipulated to the following conditions that led to the children’s removal from his
care: residential instability, financial instability, and without a parent due to incarceration.
Under the facts of this case, substance abuse and criminal behavior were also conditions
that in all reasonable probability would cause the children to be subjected to further abuse
or neglect if they still persisted.
As to the element of whether conditions persisted, the juvenile court determined
that the conditions which led to the children’s removal or other conditions that in all
reasonable probability would cause the children to be subjected to further abuse or
neglect still persisted, preventing the children’s safe return to Father’s care. The juvenile
court found that “even with DCS continuing to locate, engage and work with [Father],
and all of the community support [he] received at the onset of this case, [he] did not
obtain housing until February 1, 2016 and [he] allegedly found [a] job[] at the end of
2015.”9
The trial court analysis improperly focused on Father’s efforts rather than whether
the conditions that led to the children’s removal still persisted.10 Upon release from
incarceration in August 2015, Father moved into transitional housing with Doors of Hope
and then moved into his current residence in January/February 2016. Father had had a
place to live since August 2015 and had been working since September 2015. DCS
conducted a home visit but did not make any adverse findings as to the condition of the
townhouse besides the odor of smoke at the entrance. Even if the juvenile court rejected
Father’s testimony that he had been working since September 2015, pay stubs submitted
to DCS reflected that he had had a job at least since November 2015. The proof showed
that, as of the date of trial, Father had both housing and a job.
Father had been off probation since January 2016, and DCS presented no evidence
of additional criminal charges. However, the evidence of Father’s sobriety was mixed.
Father last failed a drug screen in September 2015, when he tested positive for THC.11
According to the testimony of two different DCS employees, as late as December 2015,
Father appeared for a Child and Family Team Meeting smelling of alcohol. Although
9
The trial court also found that Father did nothing on his own and that his accomplishments were
the result of others’ kindness. But the focus should have been on the result of Father’s efforts.
10
A parent’s efforts or lack thereof is the focus of another ground for termination—substantial
non-compliance with the permanency plans—as discussed earlier in this opinion.
11
THC, or tetrahydrocannabinol, “is a marijuana metabolite that is stored in fat cells and can be
detected in the body up to thirty days after smoking marijuana.” Interstate Mech. Contractors, Inc. v.
McIntosh, 229 S.W.3d 674, 677 (Tenn. 2007).
15
Father disputed this, contending that the last time he drank alcohol was in August 2015,
the trial court apparently credited the testimony of the DCS employees. On the other
hand, after the failed drug screen in September 2015, Father exercised visitation,
indicating he passed all subsequent drug screens. Father also completed an intensive
outpatient program for his substance abuse issues.
Based on this record, we conclude the evidence was less than clear and convincing
that the conditions which led to the children’s removal or other conditions that in all
reasonable probability would cause the children to be subjected to further abuse or
neglect still persisted. Because termination of parental rights on the grounds of
persistence of conditions requires clear and convincing evidence of each of the statutory
elements, we need not address the remaining elements.
B. BEST INTEREST OF THE CHILDREN
As DCS proved at least one ground for termination of parental rights against each
parent, we turn to the issue of whether termination is in the best interest of the children.
Because “[n]ot all parental misconduct 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 interests.” In re Marr, 194 S.W.3d 490, 498
(Tenn. Ct. App. 2005). Tennessee Code Annotated § 36-1-113(i)12 lists nine factors that
12
The statutory factors include, but are not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services agencies
for such duration of time that lasting adjustment does not reasonably
appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(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;
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courts may consider in making a best interest analysis. The focus of this analysis is on
what is best for the child, not what is best for the parent. Id. at 499. Additionally, the
analysis should take into account “the impact on the child of a decision that has the legal
effect of reducing the parent to the role of a complete stranger.” In re C.B.W., No.
M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
Although “[f]acts relevant to a child’s best interests need only be established by a
preponderance of the evidence, . . . the combined weight of the proven facts [must]
amount[] to clear and convincing evidence that termination is in the child’s best
interests.” In re Carrington H., 483 S.W.3d at 535.
We conclude that clear and convincing evidence supports the juvenile court’s
conclusion that termination of Mother’s and Father’s parental rights was in the children’s
best interest. The juvenile court found multiple best interest factors weighed against
Mother and Father. The court focused on the parents’ behavior during the pendency of
this case including their “sprees of criminal conduct” and struggles with addiction. The
court determined that Mother and Father had failed to make a lasting adjustment in their
lives and, even after reasonable efforts by DCS, a lasting adjustment was not reasonably
possible in the near future. See Tenn. Code Ann. § 36-1-113(i)(2).
Although both Mother and Father had made adjustments in their circumstances
and conditions since removal of the children, there were some troubling indications that
the adjustments may not be lasting. During the course of trial, Mother appeared for a
scheduled visitation with the children. Mother was given three attempts to produce a
sufficient urine sample so that a drug screen could be performed, but she was unable to
do so.
Father failed a drug screen as recently as September 2015. And in December
2015, Father appeared for a Child and Family Team Meeting smelling of alcohol.
The trial court also found that the parents did not maintain regular visitation with
the children. See Tenn. Code Ann. § 36-1-113(i)(3). The evidence does not preponderate
against this finding, which weighs in favor of termination. Here, parents were each
allowed a minimum of two visitations of two hours’ duration per month. Unfortunately,
(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).
17
they could not take full advantage of visitation because of failed drug screens,
incarcerations, or failure to reschedule cancelled visits. In Mother’s case, she was not
able to visit with the children for over a year.
As a result of these sporadic visits, the parents had little relationship with the
children. See id. § 36-1-113(i)(4). When the children were removed into DCS custody,
Isabella was almost two years old, and Jaxson was almost one year old. As of the date of
trial, the children had spent nineteen months in foster care. Troublingly, during this
period of time, neither parent had advanced to unsupervised visitation.
Isabella identified the foster parents as her “mommy” and “daddy.” The record
reflects that the children did not exhibit the same comfort level with Mother and Father as
they did with the foster parents. See id. § 36-1-113(i)(5). The children were happy,
healthy, and adjusting well with the foster family. The foster father testified to his love
for the children and to the foster family’s desire to adopt them. These facts also weigh in
favor of termination.
Finally, the trial court found that neither parent has made any child support
payments. See id. § 36-1-113(i)(9). The evidence does not preponderate against this
finding, which also weighs in favor of termination. Both parents admitted that they never
paid child support although they had the ability to pay since January 2016.
IV.
Based on the concession of DCS and our review of the record, we vacate the
juvenile court’s findings that termination of Mother’s parental rights was appropriate
based upon the grounds of abandonment by failure to provide a suitable home and
persistence of conditions and the finding that termination of Father’s parental rights was
appropriate based upon the ground of abandonment by failure to visit. Based on our
review of the record, we also vacate the juvenile court’s findings of abandonment by
failure to provide a suitable home and persistence of conditions as to Father. Still, the
record contains clear and convincing evidence to support terminating Mother’s and
Father’s parental rights on the grounds of abandonment by wanton disregard for the
welfare of the children and substantial noncompliance with the permanency plan
requirements. We further conclude the record contains clear and convincing evidence
that termination is in the children’s best interest. Thus, we affirm the judgment of the
juvenile court terminating the parental rights of Mother and Father as modified by this
opinion.
_________________________________
W. NEAL MCBRAYER, JUDGE
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