In Re Nicholas C. ( 2019 )

07/15/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 3, 2019
IN RE NICHOLAS C. ET AL.
Appeal from the Juvenile Court for Cocke County
No. CU-05441 Brad Lewis Davidson, Judge
No. E2019-00165-COA-R3-PT
The trial court terminated the parental rights of Mother and Father to their four children
on the grounds of abandonment by failure to visit, substantial noncompliance with the
permanency plan, and failure to manifest the ability and willingness to assume custody of
the children. On appeal, we conclude that there is clear and convincing evidence to
support all three grounds as well as the trial court’s best interest determination. We,
therefore, affirm the trial court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and CARMA D. MCGEE, JJ., joined.
Brett Arthur Cole, Seymour, Tennessee, for the appellant, Jason B.C.
Ryan Thomas Logue, Newport, Tennessee, for the appellant, Carol L.G.
Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Carol L.G. (“Mother”) and Jason B.C. (“Father”) (collectively, “Parents”) are the
parents of four children: Nicholas, born in 2005; Tiffany, born in 2008; Skylar, born in
2010; and Airies, born in 2012. The Department of Children’s Services (“DCS” or “the
Department”) first became involved with the family in May 2015 after seven-year-old
Tiffany drew a picture at school of male genitalia and made comments about the drawing
suggesting sexual abuse. The Department’s investigation revealed that the entire family
was living in a motel room with two queen-size beds. The children were removed from
Parents’ custody and, on December 3, 2015, Parents waived their rights to an
adjudicatory hearing and the juvenile court found the children to be dependent and
neglected. The trial court’s order stated that Parents “may have supervised, therapeutic
visitation at the discretion of the therapist.”
A previous petition to terminate the parental rights of Mother and Father was
denied by the trial court, but the children remained in DCS custody. The Department met
on December 19, 2017, to develop a new permanency plan to address the issues that
Mother and Father needed to resolve. Neither parent attended this meeting.1 Mother’s
attorney attended the meeting, but Father’s attorney did not. The goals of the
permanency plan were the return of the children to their parents or adoption.2 The plan
was ratified by the trial court on February 15, 2018.
The Department filed the current petition to terminate Mother’s and Father’s
parental rights to Nicholas, Tiffany, Skylar, and Airies on August 24, 2018. The petition
asserts three grounds for termination applicable to both parents: abandonment by failure
to visit pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i);
substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. §§ 36-
1-113(g)(2) and 37-2-403(a)(2); and failure to manifest the ability to parent pursuant to
Tenn. Code Ann. § 36-1-113(g)(14).
The hearing
The trial court held a hearing on January 8, 2019. The first witness to testify for
the Department was Robert Rouleau, the children’s case manager for the entire three and
a half years they had been in DCS custody. He stated that, during the four-month period
prior to the filing of the termination petition (April 24 through August 23, 2018), Parents
did not visit the children or contact him for visitation. Neither parent had visited the
children at any point during their time in DCS custody, which began in 2015. Mr.
Rouleau stated that Parents’ visitation was at the discretion of their children’s therapists,
and that no therapist had recommended that the children have contact with Mother or
Father. The children had seen several therapists.
Mr. Rouleau testified that, between April 24 and August 23, 2018, neither Mother
nor Father contacted him at all. He stated that he had received no voice mails from either
of them, and that he may have received one text message. Mother and Father had not
come to the DCS office to see Mr. Rouleau. Mr. Rouleau testified that his last contact
with Parents was at the previous termination hearing in October 2017. Thereafter, on
1
As will be discussed below, Parents argue that they did not receive adequate notice of the meeting.
2
The permanency plan gave a goal target date of December 10, 2016, a date that had already passed.
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December 14, 2017, he texted them about the permanency plan meeting scheduled for
December 19, 2017. Mr. Rouleau then testified:
I got a text from [Father] on the 20th that said that from now on to go
through their attorneys for any meetings and contact, because he was going
to the Justice Department to sue the crooked DCS and the Court System in
Newport. Something like that.
After that text, Mr. Rouleau stated, he avoided contacting Parents directly. He further
testified:
Just to back that up, Ms. Lawson, who was the attorney for [Mother] back
then, had contacted me probably a week or two after that and told me that
the parents—that the mother told her she did not know about the
[permanency plan] meeting. Which I then told her that I texted all three
phone numbers that I had for her and that I was told not to contact them
anymore except through their attorneys. And Ms. Lawson did tell me that
she said that [Mother] did tell her that they did want me to go to the
attorneys from now on. So at that point I did not contact the parents.
Asked about the steps Parents were to take to gain visitation, Mr. Rouleau stated
that they were to engage with the children’s therapists and perhaps eventually participate
in family therapy if and when the therapist felt it was appropriate. Parents never
informed him that they had contacted any of the therapists. Mr. Rouleau provided their
attorneys with the therapists’ contact information, but he did not know if the attorneys
contacted Mother and Father to give them the information.
Mr. Rouleau stated that he provided Parents’ attorneys with copies of the
permanency plan. To the best of his knowledge, Parents had not completed the
requirements of the permanency plan. Mother had not inquired about vocational
rehabilitation, completed a parenting assessment, maintained contact with DCS twice a
month, developed a plan to address the children’s sexually reactive behaviors, paid child
support, made arrangements for continuing therapy or inquired about the children’s
therapy needs, engaged in the children’s therapeutic process, or provided proof of a
driver’s license or car insurance. Mother had signed releases. At the time of the
permanency plan, Parents stated that they had housing, but Mr. Rouleau did not know if
they had stable housing at the time of trial. He thought Mother had been “getting a
check” and assumed that she continued to receive that money. As to Father, Mr. Rouleau
testified that he had not maintained contact with DCS twice a month, developed a safety
plan regarding the children’s sexually reactive behavior, paid child support, made
arrangements for continuing therapy, participated in medication management,
participated in therapy to address his victim status, engaged in the children’s therapeutic
process, or provided proof of a driver’s license or car insurance. Father was also
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receiving a check, so he had some income. Parents had a vehicle at one point, but Mr.
Rouleau did not know if they had it at the time of trial.
As to the third ground for termination, failure to manifest an ability to parent, Mr.
Rouleau testified that he became concerned about Parents’ housing situation when he saw
a Go Fund Me page posted in November 2018 asking for help with rent. Parents were
also seen on a street corner asking for help. Prior to the first termination hearing (in
October 2017), Parents had given Mr. Rouleau gifts for the children, but they had not
done so since that hearing. Mr. Rouleau was not aware of any cards Parents sent for the
children.
At the time of the hearing, Nicholas was in a residential facility, and DCS was
looking for a foster home. Tiffany had just been placed in a pre-adoptive home with
Youth Villages. Airies was in a pre-adoptive Smoky Mountain Children’s home, and
Skylar had recently been moved to a pre-adoptive home through Smoky Mountain.
Asked why the children were placed separately, Mr. Rouleau explained:
In the beginning, they were all four together. Tiffany had some
sexual reactive behavior with Airies. So at that point we separated Tiffany
from the three boys.
A little while after that probably—probably a couple of months,
Skylar had some sexual reactive activity with Airies. So at that point,
Airies was separated from Skylar and Nicholas.
Nicholas and Skylar did stay together for a while until Nicholas was
having some issues in the foster home and that’s when he went to
residential placement.
The Department had approved the adoption of the four children separately. It would not
be safe for them to be in the same environment without a safety plan, including separate
bedrooms and “probably alarms on the doors to hear if anybody is getting out in the
middle of the night.” Mr. Rouleau stated: “They would have to be watched almost
round-the-clock when together.”
Mr. Rouleau opined that it was in the children’s best interest that Mother’s and
Father’s parental rights be terminated and that the children have no further contact with
Parents.
On cross-examination, Father’s attorney questioned Mr. Rouleau about the text
messages he sent on December 14, 2017, to the three telephone numbers he had for
Parents to notify them of the permanency plan meeting on December 19, 2017. Mr.
Rouleau acknowledged that he did not receive any response from Parents. When asked if
he had inadvertently hung up on anyone, Mr. Rouleau recalled about two weeks prior to
the hearing when he was on the phone with Nicholas’s residential facility and the facility
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requested a number for Parents. He remembered clicking onto one of Parents’ names to
open the contact and initiating a call by mistake, which he quickly ended. Maybe thirty
minutes later, he received a call from the number he had inadvertently called, presumably
because they saw a call from Mr. Rouleau. He did not answer because of the previous
request to communicate through their attorneys.
Father’s attorney stated that he did not have a record of receiving a copy of the
permanency plan until the ratification hearing in February 2018. At that hearing, Father’s
and Mother’s attorneys objected to the plan’s goal of adoption.
When questioned by the guardian ad litem, Mr. Rouleau testified that the
children’s behavior and school performance had improved since they had been in DCS
custody and had been treated with therapy and medication.
The next witness was Ashley Chitwood, a mental health therapist through Omni
Community Mental Health. She testified that she was a licensed therapist in the State of
Tennessee and had worked as a therapist at Omni for seven and a half years. Ms.
Chitwood stated that she provided therapy for the three male children in this case, Skylar,
Nicholas, and Airies. Their initial assessment was completed in July of 2015. Ms.
Chitwood had worked with Skylar consistently since 2015 until his recent move to
LaFollette, which was out of her service area. The last time she met with Skylar was in
the fall of 2018. Ms. Chitwood began seeing Nicholas when he was admitted into the
program in 2015 and continued seeing him into 2016; after that, he was successfully
discharged. Once Nicholas returned in 2017, Ms. Chitwood was not his therapy provider.
Shortly thereafter, Nicholas was admitted to a residential facility. With respect to Airies,
Ms. Chitwood stated that the child was “not very verbal” when admitted in 2015 and did
not cooperate with therapy, “mostly due to his age,” she thought. She saw Airies in 2015
and 2016, but his file was closed in 2016 “because he wasn’t cooperative.” Airies also
began receiving medication management services from another company because Omni
did not treat children under the age of five for medication management. Ms. Chitwood
further testified that she saw Airies and Skylar for family therapy in 2018.
Ms. Chitwood recalled writing a letter to the court in 2016 with her
recommendations concerning visitation. She described the substance of her letter as
follows:
I stated that due to the amount of time that had lapsed since visiting with
parents and continuing to work towards stability with the kids, I didn’t
think it would be appropriate for the children to have visits. But I did add a
clause in here that if the Court deemed it appropriate that it be completed in
a therapeutic setting.
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Ms. Chitwood stated that she had no contact with either parent during the three years she
was involved with the case. She had never received any messages from them. Ms.
Chitwood further stated that she had not been provided with any contact information for
Mother or Father, so she was unable to initiate contact with them.
As to Skylar, Ms. Chitwood testified that she never reached a point where she
thought it would be appropriate for Parents to have visitation. Skylar did not remember
his parents. When asked what she would have needed to see before she thought visitation
was appropriate, Ms. Chitwood stated:
A. Throughout the course of treatment with Skylar, he struggled managing
his emotions behaviorally, just complying with general rules and
expectations, coping with transitions. He had a very difficult time anytime
something was changed. I would have needed to see that Skylar was going
to maintain stability, which he has now. But it’s been—we’ve been
working with him for three years. And he is in a better place now but—and
then I would also hope that the parents were going to be consistent and do
the visits, however they were scheduled, however that was going to occur.
Q. Okay. If the parents [had] tried to contact you early on and requested
information about being involved in his therapy, how would you have
responded to that?
A. I mean, I would have answered any questions they would have had and
been cooperative. I was told that they may be calling me a couple of times
last year. I was told that I should be hearing from them. And I was told
when I first admitted them in 2015 that I may hear from them. But I didn’t.
Ms. Chitwood was likewise asked to opine about Airies and whether it was
appropriate for him to have visitation with Parents. She stated:
A. Airies still hasn’t—he still has a great deal of work left to do as far as
behavior and emotion regulation. He still has outbursts. He’s still
receiving therapy weekly. He just completed a more intensive program
with us because of his behavior and just helping him regulate himself and
not be so impulsive. He does not remember his parents at all. When I ask
him about them, the people that he said was his parents, was his current
foster mom and Derek, foster mom’s fiancé.
Q. Okay. If the parents had been in contact with you and shown
consistency, do you think it might have been possible at some point to have
them involved in therapy?
A. It would have for him, yes. But because he was so young when he
came into custody—it would have been better early on for him. Because he
doesn’t have a lot of memories of them now.
....
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Q. Okay. Did any of their attorneys that have represented them over the
years get in contact with you?
A. Not that I’m aware of.
When cross-examined by the guardian ad litem, Ms. Chitwood testified that Skylar
and Airies both had diagnoses of attention deficit hyperactivity disorder (ADHD) and
were both taking medication. The boys’ treatment plans focused on anger, defiance, and
aggression in the home. When the boys first came into DCS custody, their therapists
addressed problems with food hoarding. She stated: “Most of what has been worked on
has been just following the rules, listening, not being impulsive, thinking about things
before they do them.” Ms. Chitwood further testified that all three boys exhibited
outbursts of anger. Skylar and Nicholas “scratch[ed] themselves when they were angry if
they were placed in timeout or something of that nature.” The children also engaged in
sexually reactive behaviors. Nicholas was diagnosed with autism.
Ms. Chitwood observed a change in Nicholas’s behavior during the time she saw
him. In the beginning, he was “very shy, extremely anxious” and “had a lot of
nightmares.” Medication for anxiety helped him stabilize, but he began to regress and act
out behaviorally in 2017—cursing, yelling, refusing to obey his teachers, fighting with
Skylar. He was subsequently placed in a residential facility. Skylar had improved over
time; he was better able to regulate his emotions and control his impulses. He could
function at school and comply with the rules, whereas in the past he would engage in
risky behavior or blurt things out in the classroom.
Alexis Lewis, a former Omni therapist, testified that she worked with Tiffany for
about seven months in 2017. Tiffany had just been released from residential care. She
was “up and down in her behaviors.” She and Ms. Lewis were working on developing
her coping skills. Tiffany “started to connect more with her foster parents, care more
about the rules and being more empathetic with others.” Ms. Lewis communicated with
Tiffany’s foster parents, never with Mother or Father. She stated that, at the permanency
plan meeting in December 2017, she provided her contact information to give to Parents
so that she could meet with them to assess whether family therapy would be appropriate
for Tiffany, but Parents never contacted her.
On cross-examination, Ms. Lewis stated that Tiffany was having a hard time
coping in the home she was in at that time:
[S]he had been through many foster care situations and she just couldn’t
cope in general. I don’t think it was specific to the home. Just specific to
the nature of her symptoms. She couldn’t self-soothe. She couldn’t cope
with her own mood. And not getting her way, she couldn’t calm herself
down, things like that.
....
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Oh, gosh. She was defiant. She was—she had—again, like I can’t speak to
all of the things, because it has been a year. But she had behavioral issues
at school. . . . She had boundary issues, physical boundary issues, not
respecting people’s personal space, too comfortable with people, a lot of
things. She had some sexually reactive behaviors. Things like that.
The next witness, Melissa Smith, a resource coordinator at Omni, worked with
Tiffany from May 2017 through October 2018. Ms. Smith attended the permanency plan
meeting on December 19, 2017, and she recalled that she and Mr. Rouleau were going to
try to contact Parents but that “the parents had requested for all communication to go
through their attorneys.” Ms. Smith attempted to contact Mother and Father at the three
telephone numbers provided to her by Mr. Rouleau. According to her testimony, “it was
disconnected whenever I attempted to contact them.” Ms. Smith was told “that the
parents would be given the therapists[’] phone numbers as well as my phone number
from their attorneys and that they could contact us.” Ms. Smith testified that she
contacted all three of Parents’ phone numbers between the December 19, 2017 meeting
and the first of January 2018, but she never received a call back from them. She was not
able to leave a message at any of the numbers (because they were disconnected).
Ms. Smith stated that the only contact she had with Parents was at an IEP
(individualized education plan) meeting at the first of the 2017 school year. Mother
called into the meeting, and Ms. Smith heard her voice over the phone. Ms. Smith’s
contact with Tiffany ended in October 2018 when the child went to a new foster home.
The Department called Rebekah Crass, who was Tiffany’s foster mother for a time
as well as her mentor when she was in a residential facility. Tiffany came to Ms. Crass’s
home in June of 2016 for about a month and a half and then moved to intensive
residential treatment for nine months. Tiffany returned to the Crass home from April
2017 through August 2018, and she then went to another foster home. Ms. Crass
explained that, initially, Tiffany exhibited “a lot of issues with emotional dysregulation,
physical aggression, some sexual hyperreactivity, defiance.” According to Ms. Crass,
Tiffany showed classic signs of trauma and abuse, including bed-wetting and night
terrors. Ultimately, Tiffany’s physical aggression led the team to decide that she needed
a higher level of care.
When Tiffany returned to the Crass home after residential treatment, Ms. Crass
testified, a lot of the same behaviors resurfaced, despite all of the work that had been
done during residential treatment. Although Tiffany improved in some areas, Ms. Crass
found her physical aggression and emotional dysregulation especially challenging when
Tiffany was in her home. During Tiffany’s time in residential treatment, the Crass family
had adopted a son, and Ms. Crass found it difficult to maintain the safety of both Tiffany
and her son. The Department and the Crass family tried therapy, brain mapping, and
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other interventions, but the team ultimately decided to remove Tiffany from the Crass
home in August 2018.
Asked if she ever spoke to Mother or Father about Tiffany’s condition, Ms. Crass
stated that there was a “no contact” order under which she was asked not to have contact
with Tiffany’s parents. She stated that Mother and Father never attempted to contact her
and that Mr. Rouleau had never asked for an update regarding Tiffany to provide to
Mother and Father.
Ms. Crass stated that she had had contact with Tiffany since her transfer to another
foster home. Tiffany spent Christmas with the Crass family and displayed “some typical
defiant behaviors.” Ms. Crass testified that, in light of Tiffany’s history of “extensive
trauma and abuse,” caution was necessary in placing her to prevent “unsafe incidents
with another child.” When Tiffany was living with Ms. Crass, there was an extensive
safety plan in place. Ms. Crass described the plan as follows:
A. [Tiffany’s] behavioral plan at school required someone to pick her up
from the time we dropped her off and to carry—not to carry her—but to
escort her to every class. She had to use a separate bathroom than other
kids, escorted by a teacher. She would have to be escorted to the bus stop
and she had a specific bus seat in which she would have to sit until she
arrived at our home. And that was due to previous behaviors that she had at
other schools.
Q. And in the home, could you can [sic] explain what that safety plan was?
A. Uh-huh. We were not allowed to have any other long-term placements
with her. We were never called for other placements. Because she just—it
is not an option to have any other foster children with her. The exception
for our son was because he was in the process of being adopted by us. . . .
And he also slept in our room.
There were not to be any other children in her room, in the bathroom
with her. She was not allowed to have sleepovers with other children or
have any overnight contact with kids or adults. She couldn’t stay in our
bedroom either. She had to have a safe place to go whenever she was
having her physical aggression incidents.
On cross-examination, Ms. Crass stated that Tiffany sometimes lied, like any other
child. She did not think that it was possible that Tiffany lied to her in the disclosures she
made about sexual abuse. Tiffany “never recanted any of those disclosures.”
Ashley Stanley, the foster mother for Airies for the preceding three years, testified
that, when he first came into her home, Airies was three years old. He was disruptive and
exhibited “a lot of anxiety issues” and anger issues. According to Ms. Stanley, Airies
“was just not listening, basically.” During the three years that Airies had been in her
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home, the child had been in therapy and was now on medication—Vyvanse for ADHD;
Buspirone HCL for anxiety; Remeron for sleep; and L-Methfolate Forte for low folic acid
to help him metabolize the medications. Ms. Stanley had stopped working outside the
home in order to better care for Airies. She intended to adopt the child.
During the time that Airies was in her home, Ms. Stanley had not had any contact
with Mother or Father. She understood that there was a “no contact” order in place. She
stayed in contact with Airies’s therapist about his progress. Upon questioning by the
guardian ad litem, Ms. Stanley testified that Airies had calmed and become more focused
since he started on medication. She described him as “a totally different child than from
day one.” In school, Airies was “doing a lot better now that we have the right medication
for him.”
Mother was the next witness called by the Department, and she admitted that she
had not visited her children in three and a half years. She was not incarcerated or
hospitalized during that time period. Mother stated that she attended court hearings and
that she attended DCS meetings if she knew about them. She testified that, if she did not
attend the meeting on December 19, 2017, she did not know about it. When asked if she
knew about the meeting on December 19, 2017, Mother stated: “I don’t know.” Mother
identified the phone number she was using on December 19, 2017, and stated that the
number was one that Mr. Rouleau had for her and that she would have received a text
message sent to that number. Mother also identified Father’s number, but denied having
a third number. According to Mother, both her number and Father’s number were active
as of December 19, 2017, and would not have been disconnected at that time:
Q. Okay. But neither one of them were tore up in December of 2017?
A. No. But it could be fixed. All you got to do is to switch batteries from
my phone and recharge it, and still it pulls up on either phone.
Q. Okay. Do you all ever share numbers? Would [Father] ever text
someone from your phone?
A. Yeah. If his phone wouldn’t work. While his was charging, yeah.
Asked if she had contact with her attorney, Chris Lawson, in December 2017,
Mother stated that she did not know Ms. Lawson’s number and was waiting for her to
call Mother. (Mother later obtained Ms. Lawson’s telephone number.) Mother further
testified that the only time Ms. Lawson called her was when Mother told her that she and
Father did not want to talk directly to DCS. Mother affirmed that Ms. Lawson reviewed
the permanency plan with her and stated that she called Ms. Lawson a few times to
inquire about the children:
Q. Okay. She went over a Permanency Plan with you. Was that over the
phone?
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A. Yeah. But at the end when I was about to hang up—I was planning—
[Father] wanted to, you know, rather, you know, talk with the lawyers to
talk to [Robert Rouleau].
Q. Okay. And that’s what [Father] said to Ms. Lawson?
A. Yeah. He asked me if I’d ask her that.
Q. Okay.
A. And I did.
Q. Okay. Is that the last time that you ever had a conversation with Ms.
Lawson?
A. Yeah. Cause she got a new job.
Q. Okay. Well, ma’am, that was in June of 2018. Did you communicate
with her at all in the beginning of 2018?
A. I just called to ask her about if she heard anything about the kids and
stuff like that. That’s all I called about other than—
Q. Do you know how often you might have done that?
A. A few times.
Q. Was that a few times a month or just a few times during six months?
A. Well, I didn’t want to like, annoy her, so I just called her a few rounds
occasionally.
Q. Okay. Did you all ever discuss the Permanency Plan when you called
her again?
A. Usually, she would go over it sort of, yeah, a little bit.
Q. Okay. Did you understand the requirements on the Permanency Plan?
A. Uh-huh.
Q. Did you ever ask her any questions for clarification about the
Permanency Plan?
A. Uh-uh.
Q. Did you ever ask her for any help or to ask Mr. Rouleau for help on
completing the Permanency Plan?
A. Uh-uh.
Q. Did Ms. Lawson ever provide you any phone numbers for therapists?
A. No. But I need some numbers. I ain’t got no numbers.
....
Q. You had a conversation with Chris Lawson about the Permanency Plan,
but she gave you no numbers; yes or no?
A. No, she didn’t.
Q. She didn’t give you any numbers—
A. No.
Q. –in regards to the Permanency Plan?
A. No.
Q. Okay. Did you ask for any numbers to call the therapists?
A. No. Cause I didn’t know to. I thought that they would just tell me.
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Q. Now, ma’am, did you—you just testified a minute ago that you
understood the steps on the Permanency Plan which included you
contacting the therapists. Did you understand that step on the Permanency
Plan?
A. In a way, I guess.
Q. Okay.
A. I guess—
Q. Did you ever ask for numbers so you could contact the therapist to
comply with that part of the Permanency Plan?
A. No.
When asked if she ever attempted to contact any of the children’s therapists,
Mother stated that she did not have their phone numbers. She acknowledged that she
never asked her attorneys for the therapists’ phone numbers. Mother stated that she
thought Mr. Rouleau would answer her telephone calls even though she and Father had
informed him that they did not want him to contact them directly. Mother met her
current attorney at a court hearing and gave him her phone number.
Mother testified that, at the time of the trial, she and Father were living in a room
at the Family Inn. At the prior hearing (in October 2017), Mother and Father stated that
they were living in a three-bedroom home. Mother stated that she and Father lived there
for over a year and then decided to move out and put their belongings in storage “until
they figure out something.” She stated that the couple moved into a Quality Inn for two
weeks, then a Relax Inn for a few days, then stayed with Father’s mother for about a
month, and had been at the Family Inn for about a week. According to Mother, about a
year elapsed from the Parents’ departure from the three-bedroom home to the present.
On cross-examination by her attorney, Mother testified that she loved her children
and that, if they were returned to her, she would give them a home, food, and take them
to their appointments.
When cross-examined by the guardian ad litem, Mother stated that, although she
and Father were currently living in a motel, she could obtain stable housing. She testified
that she attempted to contact Mr. Rouleau several times but acknowledged that she and
Father had elected to have DCS go through their attorneys. If she needed to go
somewhere, Mother would walk, call somebody for a ride, or call Anderson
Transportation. She did not currently have a car because “it tore up,” but planned to
obtain one in August 2019. The last time she worked was “year before last at a motel for
a little while.” She received around $700 a month from social security and SSI benefits.
According to Mother, she did not work because: “[T]hey cheated me out of $40, and it
was only $120. I didn’t like the pay. They’re too cheap.” She stated that, if she wanted
to, she could work; she did not have any injuries or conditions that would prevent her
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from doing so. Mother stated that $60 a month was taken out of her social security check
for child support for all of the children.
Father was the final witness. He, too, testified that he had not visited the children
in three and a half years and that he was not hospitalized or incarcerated during that time
period. He stated that there was a “no contact” order preventing him from visiting the
children. He was not aware of the meeting that occurred on December 19, 2017, or of
receiving any text messages from Mr. Rouleau that week about a meeting. Father stated
that he “may have” sent Mr. Rouleau a text message the day after the December 19
meeting, but he did not recall. When asked whether he ever requested, through his
attorney, that DCS not contact him directly, Father stated: “I may have. I’ve got an
anger issue and Mr. Rouleau sometimes upsets me.” Father was sure that he did not text
this request to Mr. Rouleau, but he may have made the request through his attorney.
Father stated that he never discussed the permanency plan with his attorney. He
was aware of the previous permanency plan. After informing his attorney that he wanted
all contact with DCS to go through the attorney, Father never contacted his attorney
about the permanency plan or discussed it with Mother. He did not recall anything being
said about therapist numbers during Mother’s conversation with Ms. Lawson. According
to Father, his phone was active in December 2017 and was never disconnected. He never
received a text message from Mr. Rouleau concerning the December 19 meeting. Father
stated that he always responded to Mr. Rouleau’s text messages. He acknowledged that
he sometimes contacted Mr. Rouleau from Mother’s phone when his phone was charging
or not working for some reason.
Father estimated that he contacted his attorney twice to discuss this termination
case. He stated that he read the grounds alleged in the petition and “studied intensively
with that and I understand the grounds.” Father did not think that he and his attorney
went over the permanency plan before the termination petition was filed in August 2018.
He recalled that he and his attorney talked once or twice between February 15, 2018, and
the August 2018 filing of the petition, but he did not think they discussed the permanency
plan during those calls. He was not aware at that time that there was a new permanency
plan. Father testified that he asked Mr. Rouleau to update him; he called about thirty
times and texted about twenty-five times. Father called once from his mother’s phone,
but Mr. Rouleau hung up once he realized that it was Father.
Father was asked to read the following text sent to Mr. Rouleau:
From now on contact our lawyers to set up any meetings. I am going
through the Justice Department to defeat this Crooked Court System, the
DCS, and Newport.
- 13 -
Father did not have any recollection of this text message, but the immediately preceding
text stated that the message was from Father, though it was dated four months earlier.
Father stated that Mother got the dates wrong about how long they lived in each
location. They moved out of the three-bedroom home about six months (not a year)
before the hearing. Mother and Father then lived at the Quality Inn for about three
months, at the Relax Inn for a few days, at his mother’s house for about two months, and
had now been living at the Family Inn for about a week.
Father stated that he had been aware that the three older children had ADHD about
three years earlier. He did not know about the autism diagnosis. He stated that he had
been involved with the children’s education plans to some extent. The last time he
recalled calling his attorney to ask about the children was November 2017. Since then,
he went to DCS and talked to Dwane Powers.3 He tried to contact Mr. Rouleau but was
told that Mr. Rouleau did not want to speak with him. Father stated that he left a message
on Mr. Rouleau’s answering machine and that he left two or three on Mr. Powers’s
answering machine. He contacted his attorney twice to ask about the children, and the
attorney told him they were doing fine.
When cross-examined by his attorney, Father admitted that he could be confused
about the timing of the phone conversations and that they may have occurred outside of
the October 2017 to June 2018 time frame. Father testified that, according to
information given to him by the child support office, he did not have to pay child support
because he received SSI benefits.
With regard to family therapy, Father testified that he did not have contact
information for the therapists. He said that he would have visited his children if given the
opportunity and that he would have contacted the therapists if he had their phone
numbers. Father testified that he was not aware of the meeting at which the new
permanency plan was developed. He further stated that he was not aware of the court
date in February 2018 when the permanency plan was ratified by the court and that, had
he known about the court date, he would have been there. According to Father, if he had
known about the conditions of the new permanency plan, he would have done what he
could to satisfy them.
Father denied ever sexually abusing any of the children. He stated that he would
never bathe them because he had been raped for many years. Mother bathed the children.
Father testified that he had herpes.
On cross-examination by the guardian ad litem, Father stated that he received
$771 a month in disability benefits and that he also worked “on the side.” He did jobs
3
Dwane Powers is listed on the December 19, 2017 permanency plan as “Additional Team Leader.”
- 14 -
such as chopping wood, washing cars, or cleaning gutters when the work was available.
Father stated that he did not have a car. To get to where he needed to go, Father testified,
he walked or used public transportation. If the children were returned to him that day,
Father stated that he would probably call one of this friends, who was a millionaire, and
“he would let us rent the house or stay in the house that he owns.” To get the children to
school, he would rely on the school bus, public transportation, or buy a car. Father
continued: “I would get the money. If that’s what you’re meaning.” Father testified that
he had no proof that he had worked the permanency plan because he did not know about
the plan.
Trial court’s decision
After hearing all of the evidence, the trial court determined by clear and
convincing evidence both that all three grounds were met with respect to Mother and
Father and that it was in the best interest of the children for Parents’ rights to be
terminated.
Issues on appeal
Both parents have appealed the trial court’s decision. Mother asserts that the trial
court erred in finding clear and convincing evidence that termination was in the best
interest of the children. Moreover, pursuant to the holding of our Supreme Court in In re
Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016), we “must review the trial court’s
findings as to each ground for termination . . . , regardless of whether the parent
challenges these findings on appeal.”
Father argues that the trial court erred in (1) finding clear and convincing evidence
of abandonment; (2) finding clear and convincing evidence of substantial non-compliance
with the permanency plan; (3) finding clear and convincing evidence of failure to
manifest an ability to parent; and (4) failing to adequately consider the statutory factors
required to determine the best interest of the children.4
STANDARDS GOVERNING PARENTAL TERMINATION TRIAL PROCEEDINGS AND
APPELLATE REVIEW
The Tennessee Supreme Court has described the appellate review of parental
termination cases as follows:
4
Father’s statement of the issues includes a fifth issue: “The Department of Children’s Services failed to
meet the constitutional requirement of reasonable efforts.” In the argument section of his brief, however,
Father identifies four errors with each addressed in one of four sections; the reasonable efforts issue
appears as part of his best interest argument. We, therefore, address DCS’s reasonable efforts in the
context of best interests.
- 15 -
An appellate court reviews a trial court’s findings of fact in termination
proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
Rule 13(d), appellate courts review factual findings de novo on the record
and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness.
In re Carrington H., 483 S.W.3d at 523-24 (citations omitted); see also In re Gabriella
D., 531 S.W.3d 662, 680 (Tenn. 2017).
The termination of a parent’s rights is one of the most serious decisions courts
make. As the United States Supreme Court has said, “[f]ew consequences of judicial
action are so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S.
745, 787 (1982). “Terminating parental rights has the legal effect of reducing the parent
to the role of a complete stranger,” In re W.B., IV, Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005),
“and of ‘severing forever all legal rights and obligations of the parent or guardian.’” Id.
(quoting Tenn. Code Ann. § 36-1-113(l)(1)).
A parent has a fundamental right, based in both the federal and state constitutions,
to the care, custody, and control 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) (citing Nale v. Robertson, 871 S.W.2d
674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn.
1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right “is among
the oldest of the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions.” In re Carrington H., 483 S.W.3d
at 521-22, n.13 (citing U.S. Const. amend. XIV, § 1; Tenn. Const. art. 1, § 8). Although
this right is fundamental, it is not absolute. Id. at 522. The State may interfere with
parental rights only in certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d
at 250-51. Our legislature has listed the grounds upon which termination proceedings
may be brought. See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are
statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists,
- 16 -
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998).
To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah
S., 455 S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
“‘Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, and eliminates any serious or substantial doubt
about the correctness of these factual findings.’” In re Carrington H., 483 S.W.3d at 522
(quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)).
“Evidence satisfying the clear and convincing evidence standard 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 Audrey S., 182
S.W.3d 838, 861 (Tenn. Ct. App. 2005) (citations omitted).
As a reviewing court, we “must ‘distinguish between the specific facts found by
the trial court and the combined weight of those facts.’” In re Keri C., 384 S.W.3d 731,
744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct.
App. 2007)). Then, we must determine “whether the combined weight of the facts . . .
clearly and convincingly establishes all of the elements required to terminate” a party’s
parental rights. Id. (citing In re Tiffany B., 228 S.W.3d at 156, and In re S.M., 149 S.W.3d
632, 640 (Tenn. Ct. App. 2004)). “When a trial court has seen and heard witnesses,
considerable deference must be accorded to the trial court’s findings as to witnesses’
credibility.” Id. (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912,
915 (Tenn. 1999)).
Once a ground for termination is established by clear and convincing evidence, the
trial court or the reviewing court conducts a best interest analysis. In re Angela E., 303
S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005), and White
v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). “The best interests analysis is
separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
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ANALYSIS
I. Abandonment by failure to visit—Mother and Father.
The Department alleged that Mother and Father abandoned their four children by
failure to visit pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i).
The latter section defines “abandonment” as follows:
For a period of four (4) consecutive months immediately preceding the
filing of a proceeding, pleading, petition, or any amended petition to
terminate the parental rights of the parent or parents or the guardian or
guardians of the child who is the subject of the petition for termination of
parental rights or adoption, that the parent or parents or the guardian or
guardians either have failed to visit or have failed to support or have failed
to make reasonable payments toward the support of the child.
Tenn. Code Ann. § 36-1-102(1)(A)(i). Both parents acknowledged that they had not
visited their children during the four months prior to the filing of the termination petition
in August 2018. (In fact, they had not visited the children in the three and a half years
that the children had been in DCS custody.)
The following subsection regarding willfulness, Tenn. Code Ann. § 36-1-
102(1)(A)(I), which took effect in July 2018, is also relevant in this case:
For purposes of this subdivision (1), it shall be a defense to abandonment
for failure to visit or failure to support that a parent or guardian’s failure to
visit or support was not willful. The parent or guardian shall bear the
burden of proof that the failure to visit or support was not willful. Such
defense must be established by a preponderance of evidence. The absence
of willfulness is an affirmative defense pursuant to Rule 8.03 of the
Tennessee Rules of Civil Procedure.
Father makes the following argument:
[B]ecause he was unaware of the steps needed to lift the no contact order
and because DCS did not facilitate contact between the therapist and the
parents, as is the normal course of action, Father’s failure to have contact
with his children was not willful and the Trial Court erred in finding that
the Department had met its burden of proving abandonment.
Under Tenn. Code Ann. § 36-1-102(1)(A)(I), willfulness is an affirmative defense; thus,
the burden is upon Father to establish that his failure to visit was not willful.
- 18 -
Pursuant to the trial court’s adjudicatory order, Mother and Father were permitted
to have “supervised, therapeutic visitation at the discretion of the therapist.” The
permanency plan provided that Mother and Father were not to have contact with the
children unless recommended by their therapists, but they were to engage in the
therapeutic process with the children’s therapists.
In its general findings of fact, the trial court made the following findings pertinent
to Mother and Father’s communications with their attorneys:
This Court finds the Respondents were responsible for maintaining contact
with their respective attorneys and the Court finds entirely unbelievable any
excuse that they could not reach their respective attorneys. The Court
further finds that DCS was instructed not to speak with either Respondent
directly, creating a hardship for DCS that was overcome by contact with the
attorneys for the Respondents. Despite insisting that DCS communicate
with them through their respective attorneys, both Respondents admitted
that they had very limited communication with their respective attorneys.
We accord considerable deference to a trial court’s findings based upon the credibility of
witnesses and will not overturn such findings absent clear and convincing evidence to the
contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); Franklin Square Towne
Homeowners Ass’n Inc. v. Kyles, No. W2016-02018-COA-R3-CV, 2017 WL 1952833, at
*3 (Tenn. Ct. App. May 10, 2017). We find no clear and convincing evidence conflicting
with the trial court’s findings here.
The trial court made the following findings of fact pertinent to the willfulness of
Mother’s failure to visit:
The Court finds that [Mother] was in no way incapacitated or
prevented from visiting with the children during the four-month period.
The Court finds that [Mother] knew of her duty to visit because she had
been to Court several times and was aware of the court’s orders. In
addition, [Mother] testified that she spoke with her attorney regarding the
steps that she needed to take to acquire visitation. This Court finds that
[Mother] could have had at least therapeutic visitation if she had followed
the steps to contact any of the children’s therapists and become involved in
the therapeutic process. However, the Court also finds that [Mother] took
no such steps.
The record does not preponderate against the trial court’s findings. Mother testified that
Ms. Lawson reviewed the current permanency plan with her and that she called Ms.
Lawson a few times but never asked her for the therapists’ contact information.
Moreover, Mother was present for the dependency and neglect hearing when the trial
- 19 -
court ordered that therapeutic visitation would be allowed at the discretion of the
children’s therapists.
The trial court made the following factual findings regarding the willfulness of
Father’s failure to visit:
The Court finds that [Father] was in no way incapacitated or
prevented from visiting with the children during the four-month period.
The Court finds that [Father] knew of his duty to visit because he had been
to Court several time[s] and was aware of the Court’s orders. In addition,
[Father] is charged with the knowledge of the requirements that he had to
follow to acquire visitation because the knowledge was found to have been
delivered to his attorney in the manner that [Father] requested, although
[Father] did not then follow up with his attorney. This Court finds it
completely unbelievable that [Father] was not capable of more
communication with his attorney. This Court finds that [Father] could have
had at least therapeutic visitation if he had followed the steps to contact any
of the children’s therapists and become involved in the therapeutic process.
However, the Court also finds that [Father] took no such steps.
The facts in the record do not preponderate against the trial court’s findings. Father was
present for the dependency and neglect hearing when the trial court ordered that
therapeutic visitation would be allowed at the discretion of the children’s therapists.
Moreover, the Department asserts that it provided Father’s attorney with a copy of the
permanency plan after the December 19, 2017 meeting. Even if, as Father argues, his
attorney did not receive the permanency plan sent by DCS after the meeting, Father’s
attorney was present at the February 2018 ratification hearing and had a copy of the
permanency plan at that point, two months prior to the beginning of the four-month time
period at issue here. Thus, Father was on notice of the requirement that he participate in
the children’s therapeutic process as a step toward possible visitation.
The record shows Mother’s and Father’s lack of effort to contact their attorneys or
otherwise attempt to obtain contact information for the therapists in order to visit their
children. Clear and convincing evidence supports the trial court’s decision that Mother
and Father abandoned their children by failing to visit in the four months preceding the
filing of the petition to terminate.
II. Substantial noncompliance—Mother and Father.
The Department’s petition to terminate also alleges that Mother and Father failed
to substantially comply with the permanency plan created by DCS on December 19,
2017, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2).
- 20 -
Tennessee Code Annotated section 36-1-113(g)(2) allows a court to terminate
parental rights where “[t]here has been substantial noncompliance by the parent . . . with
the statement of responsibilities in a permanency plan pursuant to title 37, chapter 2, part
4.” To succeed under this ground, DCS must “demonstrate first that the requirements of
the permanency plan are reasonable and related to remedying the conditions that caused
the child to be removed from the parent’s custody in the first place.” In re M.J.B., 140
S.W.3d 643, 656 (Tenn. Ct. App. 2004). Conditions that make foster care placement
necessary “may include conditions related both to the child’s removal and to family
reunification.” In re Valentine, 79 S.W.3d at 547. If the trial court fails to make a finding
regarding the reasonableness of the parent’s responsibilities under the permanency plan,
the reviewing court must review this issue de novo. Id. The court must then determine
whether the noncompliance is substantial. In re M.J.B., 140 S.W.3d at 656. In assessing a
parent’s substantial noncompliance with a permanency plan, the court should measure
“both the degree of noncompliance and the weight assigned to that requirement.” In re
Valentine, 79 S.W.3d at 548. “Trivial, minor, or technical deviations from a permanency
plan’s requirements will not be deemed to amount to substantial noncompliance.” In re
M.J.B., 140 S.W.3d at 656. Whether a parent is substantially noncompliant with a
permanency plan is a question of law. In re Valentine, 79 S.W.3d at 548.
The trial court’s order does not include a finding concerning the reasonableness of
the requirements in the permanency plan. Thus, the first issue5 we must address is
whether the requirements of the permanency plan “are reasonable and related to
remedying the conditions that caused the child[ren] to be removed from the parent[s’]
custody in the first place.” In re M.J.B., 140 S.W.3d at 656. The permanency plan
required both Mother and Father to update their contact information with DCS twice a
month, engage in the children’s therapeutic process, provide safe transportation, obtain
safe and stable housing (including therapeutic housing), have a safety plan in place to
address sexually reactive behavior, pay child support, and maintain a legal source of
income. In addition, Father was required to participate in medication management and
therapy; and Mother was required to complete a parenting assessment and follow the
recommendations, inquire about vocational rehabilitation services, and sign releases with
providers.
Were these requirements reasonable and related to the conditions that necessitated
removal of the children from the parental home? The children were removed from the
custody of Mother and Father in May 2015 due to allegations of sexual abuse against
Father and because the entire family was living in one motel room with only two beds.
Once in DCS custody, several of the children exhibited sexually reactive behavior, and
5
With respect to substantial noncompliance, Father once again argues that he was not aware of the
requirements of the permanency plan. As discussed regarding abandonment, the trial court did not credit
Father’s testimony that he was unable to contact his attorney, thus he was on notice of the contents of the
permanency plan from at least the time of the ratification hearing in February 2018.
- 21 -
all four children required extensive therapy. The requirements of the permanency plan—
including requiring both parents to engage in the therapeutic process and to provide a
suitable home with a safety plan—are reasonable and tailored to the needs of the children
and the issues that brought them into DCS custody in the first place.
We must now examine whether each parent substantially complied with the
requirements of the permanency plan. Mother signed releases to allow DCS to contact
providers. She did not complete vocational rehabilitation or the parenting assessment. In
determining that Mother was in substantial noncompliance, the trial court made the
following pertinent findings of fact:
The Court finds that there was no testimony that [Mother] had done
anything on the permanency plan developed on December 17, 2017.
[Mother] admitted that she believed that she had spoken with her attorney
regarding the Permanency Plan and that she did not make any follow up
requests for additional information from her. Even if she did not have a
conversation with her attorney specifically regarding the actions steps
outlined in the permanency plan, she is charged with knowledge because
she insisted that DCS make all communications with her through her
attorney and the permanency plan was delivered to the attorney. [Mother]
testified that she was living in a motel room, which this Court specifically
deems unsafe for the children. In addition, [Mother] has made no effort to
learn about the children’s mental and psychological needs.
The evidence does not preponderate against the trial court’s findings, with the exception
of the fact that Mother did sign releases for providers.6 We also note that sixty dollars
was taken from her monthly social security benefits check to support all four children.
As to Father, the trial court likewise determined that Father was substantially
noncompliant with the permanency plan based upon the following findings:
6
Mother testified as follows with respect to the parents’ living situation at the time of the hearing:
Q. If the kids were sent home to live with you today, where would you take them?
A. Well, it being nighttime, I guess I’d have to go up there [to the motel] and then call
around and see about getting into a place to live for a bigger place. You know, because
they couldn’t stay there long. And then as soon as my check came again I’d be paying,
not there at Family Inn, but paying for another home.
Q. Now, you’ve moved quite a bit during this case; haven’t you?
A. A little, not a lot.
Q. Okay. And you just haven’t found something you can settle down with?
A. Well, I can get these big places and then nobody is in it. And it’s all empty with all
their stuff, so I just put it back in storage and decided to just sit up there for now until I
figure out what’s going to go on.
- 22 -
The Court finds that there was no testimony that [Father] had done anything
on the permanency plan developed on December 17,[7] 2017. [Father]
initially stated that he might have spoken to his attorney about the
Permanency Plan and then stated he probably did not. Nonetheless, he is
charged with knowledge of the action steps on the Permanency Plan
because it was delivered to him through his attorney as he had instructed
DCS to do. Although there is a question of when the attorney received the
Permanency Plan, it was settled that he received it no later than the
February court date, a little more than six months prior to the filing of the
Petition to Terminate Parental Rights. [Father] testified that he was living
in a motel room, which this Court specifically deems unsafe for the
children. In addition, [Father] has made no effort to learn about the
children’s mental and psychological needs.
According to Father’s testimony, he was not ordered to pay child support because of his
disability. Therefore, we will not consider Father’s failure to pay child support in
assessing his compliance with the permanency plan. With respect to all of the other
requirements of the permanency plan, the evidence does not preponderate against the trial
court’s findings of fact.
There is clear and convincing evidence to support the trial court’s determination
that Mother and Father were in substantial noncompliance with the permanency plan and
met the statutory requirements for parental termination on that basis.
III. Failure to manifest ability to parent—Mother and Father.
The third and final ground for termination alleged by DCS against Mother and
Father is failure to manifest the ability to parent pursuant to Tenn. Code Ann. § 36-1-
113(g)(14).
Pursuant to this ground, a court may terminate parental rights in situations where:
A parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or
financial responsibility of the child, and placing the child in the person’s
legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). This ground requires DCS to prove two elements
by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, DCS
must prove that Mother/Father “failed to manifest an ability and willingness to personally
7
The permanency plan was actually developed on December 19, 2017.
- 23 -
assume legal and physical custody or financial responsibility of the child[ren].” Tenn.
Code Ann. § 36-1-113(g)(14). If a party proves only the “ability” criterion or the
“willingness” criterion, the requirements of the statute are not met, and this ground may
not serve as a basis for terminating parental rights. In re Ayden S., No. M2017-01185-
COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018). Second, the
Department must prove that placing the children in Mother’s or Father’s “legal and
physical custody would pose a risk of substantial harm to the physical or psychological
welfare of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14).
Have Mother and Father shown an ability and a willingness to assume legal and
physical custody or financial responsibility of their children? Although they may have a
desire to reunite with their children, their actions fail to exhibit an ability or a willingness
to take legal and physical custody or financial responsibility of the children. The trial
court found:
Although [Mother and Father] have stated that they would like to
have the children returned to them, their actions have gone far awry from
their claims. This Court finds that the Respondents have collectively and
separately done nothing to have the children returned to them. They have
currently lost their housing and their personal transportation, although both
did state that they have means of getting from place to place. In addition,
neither Respondent has made any effort to become involved in the
children’s respective therapy sessions or to at least learn about the
children’s differing needs by contacting the therapists.
The evidence does not preponderate against the trial court’s findings. Mother and Father
failed to stay in regular contact with their attorneys after informing DCS that they wanted
all contact to go through the attorneys. They have not obtained stable housing and have
not made any meaningful attempt to obtain the right to visit their children in the more
than three years that the children have been in DCS custody. Moreover, Father and
Mother have not taken the steps necessary to stay informed about the children’s welfare.
Furthermore, there is clear and convincing evidence to support the trial court’s
conclusion that “it would be unsafe for the children to return home” to Mother and
Father. The trial court made the following pertinent findings:
There are two considerations here at the top of the Court’s mind. First, the
living arrangement for the Respondents is less than ideal. The Respondents
are once again residing in a hotel room where the children would not be
able to live with them. Testimony revealed that the children have to have
safety plans in which they are not allowed to maintain in the same room
with other minors without constant supervision. In addition, the children’s
therapists testified to the psychological danger associated with changes in
- 24 -
their environments and routines. Further, the therapists stated that the
children no longer ask about their biological parents and that the younger
do not even remember them. The youngest child, Airies, only remembers
his foster parents as his parents.
The evidence does not preponderate against these findings.
There is clear and convincing evidence to support the trial court’s decision to
terminate Mother’s and Father’s parental rights on the ground of failure to manifest an
ability and willingness to assume custody of the children.
IV. Best interests.
Having determined that clear and convincing evidence of at least one statutory
ground exists to terminate Mother’s and Father’s parental rights, we must next consider
whether the trial court properly determined that termination of their parental rights is in
the best interest of the children. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S.,
182 S.W.3d at 860. After a court finds that clear and convincing evidence exists to
support a ground for termination, the children’s interests diverge from those of the parent
and the court focuses on the children’s best interests. In re Audrey S., 182 S.W.3d at 877.
A court must view the children’s best interest from the perspective of the children, not
that of the parent. Id. at 878. A finding that at least one ground for termination of parental
rights exists does not necessarily require that a parent’s rights be terminated. Id. at 877.
Because some parental misconduct is redeemable, our termination of parental rights
statutes recognize that “terminating an unfit parent’s parental rights is not always in the
child’s best interests.” Id. The facts a court considers in its best interest analysis must be
proven by “a preponderance of the evidence, not by clear and convincing evidence.” In re
Kaliyah S., 455 S.W.3d at 555. Once a court makes the underlying factual findings, it
should “consider the combined weight of those facts to determine whether they amount to
clear and convincing evidence that termination is in the child’s best interest.” Id.
When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court is to consider the following non-exclusive factors:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
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(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to
§ 36-5-101.
Tenn. Code Ann. § 36-1-113(i). A trial court is not required to find that each of the
enumerated factors exists before concluding that it is in the best interest of the children to
terminate a parent’s rights. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Although in some circumstances “the consideration of one factor may very well dictate
the outcome of the analysis,” In re Audrey S., 182 S.W.3d at 878, a court is still obligated
to consider “all the factors and all the proof.” In re Gabriella D., 531 S.W.3d at 682.
The trial court made findings regarding each of the statutory factors:
(1) The Court finds that there has been no change in the
circumstances of either Respondent. The Respondents are now residing in
a hotel room, just like they were three and a half years ago, when it was
found that the children were unsafe in that environment.
(2) The Court finds that the parents have not attempted to do
anything on their Permanency Plan and that, although DCS could not
provide substantial reasonable efforts, DCS put forth more effort than the
parents by ensuring that the Permanency Plan was delivered to
Respondents’ counsel by at least February 15, 2018.
(3) The Court finds, as earlier, that there has been no visitation.
(4) The Court finds that there is no relationship between the
Respondents and the children. There was extensive testimony that the
children did not even remember their parents.
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(5) The Court finds that it would clearly be deleterious for any of the
children to be moved unnecessarily. Testimony from both therapists
revealed that the children all suffered from issues surrounding changes in
their environments and routines.
(6) Although Tiffany’s knowledge of male anatomy and
functionality begs the question “from where did she learn about this,” the
Court finds that there is no concrete proof that the children have ever been
sexually or otherwise physically abused.
(7) The Court finds that the Respondents’ current residence, a hotel
room, is not a safe space to which the children could ever be returned.
(8) The Court declines to make a ruling surrounding the
Respondents’ respective mental statuses and what effect those respective
statuses might have on the children.
(9) The Court finds that the Respondents appeared to make
payments towards the children’s support as they were instructed, but finds
that the amounts would be woefully inadequate to care for the children.
The evidence in the record does not preponderate against these findings.
Although not challenging the trial court’s findings, Mother emphasizes that she
pays sixty dollars in child support each month out of her social security check, and that
the DCS caseworker testified that she and Father provided some gifts for the children
while they were in custody. Mother testified that she loves her children and would
provide food, housing, and care for them if they were returned to her custody. She asks
this court to “permit her another chance to be a parent.” We acknowledge Mother’s
sincere wishes. Nevertheless, these children have been in foster care for three and a half
years and there appears little likelihood that they will be able to return to Mother’s
custody in the near future. Clear and convincing evidence supports the trial court’s
determination that termination of Mother’s parental rights is in the best interest of the
children.
Father takes the position that the trial court failed to give adequate weight to
DCS’s failure to make reasonable efforts in this case. This court has previously stated
that DCS’s “duty to make reasonable efforts is ‘a two-way street.’” In re R.L.F., 278
S.W.3d 305, 313 (Tenn. Ct. App. 2008) (quoting Tenn. Dep’t of Children’s Servs. v.
S.M.D., 200 S.W.3d 184, 198 (Tenn. Ct. App. 2006)) (reversed on other grounds, In re
Kaliyah S., 455 S.W.3d at 555). A “parent’s response to and cooperation with the
Department’s reunification efforts” is one of the factors to be considered when evaluating
the reasonableness of DCS’s efforts. In re Bernard T., 319 S.W.3d 586, 601 (Tenn.
2010). Thus, Father had a duty to communicate with DCS and to facilitate the
Department’s efforts to assist him. See In re R.L.F., 278 S.W.3d at 313. As stated above,
the trial court found that “DCS could not provide substantial reasonable efforts,” but that
“DCS put forth more effort than the parents by ensuring that the Permanency Plan was
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delivered to Respondents’ counsel by at least February 15, 2018.” Because Father
precluded DCS from communicating directly with him and required DCS to work
through his attorney,8 and because Father failed to stay in contact with his attorney, DCS
was not able to make reasonable efforts on his behalf.
We agree with the trial court that there is clear and convincing evidence that
termination of Father’s parental rights is in the best interest of the children.
CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellants, Carol L.G. and Jason B.C., for which execution
may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
8
Father also asserts that he “clearly revoked [his request that DCS communicate with him only through
his attorney] when he made numerous attempts to contact DCS after that text.” However, because all
communication was to be through the attorney, any revocation would also have to be made through the
attorney.
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