In Re Daymien T. , 506 S.W.3d 461 ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 1, 2016
IN RE DAYMIEN T.
Appeal from the Juvenile Court for Hawkins County
No. HJ-15-0570 Daniel G. Boyd, Judge
___________________________________
No. E2015-02527-COA-R3-PT-FILED-JULY 27, 2016
___________________________________
The trial court terminated Father’s parental rights on grounds of substantial
noncompliance with a permanency plan and persistent conditions. The trial court also found
that termination was in the child’s best interest. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
and Remanded
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and RICHARD H. DINKINS, JJ., joined.
Samuel E. White, Kingsport, Tennessee, for the appellant, Matthew T.
Herbert H. Slatery, III, Attorney General and Reporter; and Kathryn A. Baker, Assistant
Attorney General; for the appellee, State of Tennessee, Department of Children= s Services.
OPINION
Background
On May 30, 2013, Petitioner/Appellee Tennessee Department of Children’s Services
(“DCS”) filed a petition to find Daymien T. (“the child”), the minor child of
Respondent/Appellant Matthew T. (“Father”) and Respondent Michelle A. (“Mother”)1
dependent and neglected.2 The petition also alleged that Father’s paramour’s children, who
1
Mother is not a party to this appeal.
2
In cases involving termination of parental rights, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.
were living in the home with Father, his paramour, and the child at the time, were dependent
and neglected. The other children, however, are not at issue in this appeal.
According to the petition, DCS received a referral for improper supervision on May
23, 2013. Thereafter, it was discovered that Father and his paramour allegedly “locked the
child[] in the room and [Father] urinated on [the child],” who was five at the time. The
petition alleged that Father admitted to urinating on the child, but stated that he did so
because the child urinated on the floor while locked in the room. Father’s paramour also
admitted to “grabbing the child by the neck and attempting to rub the child’s nose in feces on
the floor of the room in which he was locked with her two children.” Father and paramour
stated that they took this action because the child cut the other children’s hair and urinated on
the dog. Per the petition, the child admitted to cutting the other children’s hair, but adamantly
denied urinating on the dog. Father apparently informed DCS that he had custody of the child
because Mother attempted to set the child on fire.
On the same day, May 30, 2013, the juvenile court entered an ex parte protective
custody order removing the child from Father’s home and placing him in DCS custody. The
child was eventually placed in therapeutic foster care. Thereafter, on August 13, 2013, the
juvenile court held an adjudicatory hearing on DCS’s dependency and neglect petition. On
October 30, 2013, the juvenile court entered an order finding clear and convincing evidence
that the child was dependent and neglected and removing him from Father’s and Mother’s
custody.
On June 11, 2013, the first permanency plan concerning the child was created. The
plan was later ratified by the trial court and filed on August 13, 2013. Father participated in
the formulation of the plan and was present at the ratification hearing. Over the next two
years, four additional permanency plans were created by DCS and ratified by the trial court.
Father signed each and every additional plan.
On June 30, 2015, more than two years after the child was taken into DCS custody,
DCS filed a petition to terminate Mother’s and Father’s parental rights to the child. With
regard to Father, the petition alleged two grounds for termination: (1) that Father has
substantially failed to comply with the permanency plans and (2) that the conditions that led
to the child’s removal persisted. The trial court held a termination hearing on November 17,
2015. Mother did not appear.
Technical records from the dependency and neglect proceedings, including the order
from the adjudicatory hearing finding the child dependent and neglected, and the various
permanency plans ratified by the trial court, were all admitted as exhibits. Toni Jenkins, the
child’s family service worker with DCS, first testified about Father’s compliance with the
various permanency plans at issue. As discussed in more detail infra, the various plans
contained many requirements related to Father’s decision to improperly discipline the child
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for his purported conduct. The requirements included, inter alia, attending anger
management treatment and following recommendations, obtaining a parenting assessment
and follow recommendations, and attend supervised and therapeutic visitation with the child,
utilizing skills learned in treatment. Ms. Jenkins testified that Father made very little
progress on most of the plan’s requirements until after the termination petition was filed.
Specifically, Father only attended visitation with the child sporadically and did not complete
anger management, despite the fact that both tasks were clearly labeled as critical action steps
on the permanency plans. Indeed, Father admitted that prior to the filing of the termination
petition, he attended no more than four anger management sessions in the approximately
twenty-five months prior to the filing of the termination petition. According to Ms. Jenkins,
Father blamed the more than three hour distance between him and the child and his repeated
vehicle trouble for his missed visits and failure to complete anger management. Ms. Jenkins
pointed out, however, that Father chose to move more than three hours away after the child
was removed from his custody.
The child’s individual and family counselor, Teresa Fletcher, testified that she has
been treating the child weekly since December 2013. Generally, Ms. Fletcher sees the child
for individual therapy, but when Father is present, she, the child, and Father will participate
in family therapy. Although Father was required to attend visitation at least once a month,
Ms. Jenkins testified that Father was welcome to attend weekly sessions. According to Ms.
Fletcher, however, from December 2013 to approximately six months prior to trial, Father’s
attendance at the therapeutic visitation was largely inconsistent. Ms. Fletcher testified that
consistency in visitation is especially important for the child because he suffers from post-
traumatic stress disorder relating to his prior abuse; due to the child’s disorder, he is unable to
appropriately cope with disappointment. As such, Ms. Fletcher testified that she has directed
Father to stop making promises to the child that he does not keep. For example, Ms. Fletcher
testified to an incident in June 2015 where Father promised the child that he would visit on
his birthday, but did not follow through, apparently due to vehicle trouble. Ms. Fletcher
testified that the child was “devastated” when Father did not visit on his birthday as
promised.
According to Ms. Fletcher, although Father admitted to her that he urinated on the
child as a punishment, as of May 2015, he continued to blame the incident on his paramour
or “other things.” As such, Ms. Fletcher concluded that Father did not understand that his
behavior constituted inappropriate discipline. Ms. Fletcher explained that Father taking full
responsibility for his wrongful actions is important because it impacts his future behavior.
Ms. Fletcher also testified that she has been working with Father to make better decisions
concerning what information he shares with the child and in helping Father understand the
developmental level of the child.
Ms. Fletcher testified that while Father has made an effort to more consistently attend
visitation in the last six months, the more the child has visited with Father, the more the
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child’s mental health has actually deteriorated. According to Ms. Fletcher, the situation has
become so dire that the child is now experiencing suicidal ideations. In fact, Ms. Fletcher
testified that the child, who was eight at the time of trial, recently tried to commit suicide by
choking himself. The child also attempted to run away. Ms. Fletcher blamed the child’s
“erosion” on both his lack of permanency and the child’s history of trauma. As Ms. Fletcher
explained: “I think that my concern is that because [the child], as dad’s involvement has
increased and [d]ad’s responsibility to be present is more expected, [the child] has been
eroding. So I’m really concerned about trauma triggers and other things like that that may be
contributing to his erosion.” Finally, Ms. Fletcher offered the following testimony when
asked if reunification was appropriate:
Here’s what I would say is that [the child] desperately needs
permanency. And I’m concerned that it has taken this long to be
able to make the few gains that we’ve made over the last six
months. I mean, [the child] can’t sit and languish in foster care
for two more years while we try to work this out. He cannot
tolerate it. In fact, I was so concerned about [the child’s] well-
being that I really recommended that we stop visits until this
issue of permanency was addressed because [the child] is
eroding so much I’m fearful that he will have to be hospitalized
if he continues to erode. So his mental health is in jeopardy here.
I have great concerns about how long it will take for
reunification to happen. We’re still doing family therapy and
supervised visits and it’s been two years. So the timing is
critical. [The child’s] psychological well-being is paramount. It
is difficult because [the child] loves his dad and it’s easy to see
that there is a bond there. But [the child] doesn’t have another
year to wait.
Father testified that his decision to move more than three hours away from the child
after his removal was necessary because he was homeless at the time and was not employed.
When a friend offered to let Father stay with him and help him obtain a job, Father testified
that he determined that it was his best option to be able to provide for his son. Despite
obtaining steady factory employment approximately one month after moving away, Father
testified that he had difficulty with his vehicle that he could not afford to fully repair.
According to Father, vehicle trouble prevented him from attending anger management
treatment and visitation with the child. However, Father also testified that he only
experienced vehicle trouble “[o]nce every couple months.” Father stated that he accidently
placed one gas card provided by DCS in the trash and that another had fallen out of his
pocket while he was “walking down the side of the highway for at least 30 miles with bags
and the car seat, strapped to my back using my belt[,]” after experiencing vehicle trouble.
Father testified that after he moved away from the child and obtained a job, he did not need
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to entertain the notion of returning to the city where his child resided because he “had a job
and nothing went downhill.”
Father also admitted that he lied to DCS about his paramour being in his home with
him after he moved, even though the permanency plan required that Father notify DCS of any
changes to persons living in his home. Indeed, it appears that Father only admitted her
presence when a DCS worker found the paramour hiding in the closet. Father testified,
however, that he had previously told DCS that he was no longer in the relationship with the
paramour. Father admitted that he now resides with the paramour and has a child with her.
Father also denied that DCS had been unable to make contact with him for the first six
months after the child was taken into DCS custody. Father testified, however, that he
eventually “came back . . . when [he] could afford it.”
Father testified that he understood that the punishment that he had inflicted on the
child prior to his removal was wrong and that he deeply regretted his actions. According to
Father, he has made many improvements in the last six months because he and his paramour
have been enrolled in an intensive parenting program supervised by family service
coordinator Carla Thompson with regard to their new child.
Carla Thompson testified that she had begun working with Father and his paramour in
June 2015. Ms. Thompson provides in-home parenting services to at-risk families, meeting
with Father and paramour in their home two to four times per month. The parenting
assistance concerns Father’s and the paramour’s new child, rather than the child at issue in
this case. Nevertheless, Ms. Thompson testified that since she began working with the
couple, she has seen improvements in the cleanliness of their home with regard to pet odors
and in their parenting skills, including learning what appropriate responses are to the child’s
behavior. Ms. Thompson testified that the couple was very cooperative and utilized her
suggestions. Ms. Thompson admitted, however, that most of her interaction is with Father’s
paramour because of Father’s work schedule. Ms. Thompson testified that the couple
purchased a new vehicle within two weeks of working with her and had no more
transportation issues. Before that time, however, Ms. Thompson testified that the couple
missed two meetings because of vehicle trouble. Finally, Ms. Thompson testified that she has
recently begun instruction with the couple on appropriate parenting skills and that it would be
a “long term thing” before such instruction was completed. Indeed, Ms. Thompson testified
that the program in which Father and his paramour are enrolled would be completed in six or
seven months.
Father’s paramour did not dispute that she had inappropriately punished the child,
leading to his removal from the home. Father’s paramour testified that through the intensive
counseling with Ms. Thompson, she now knows that discipline should involve “no hitting, no
yelling, [and] no shut doors.”
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At the conclusion of the trial, the trial court made a detailed oral ruling finding that
both grounds for termination as to Father had been shown by clear and convincing evidence
and that termination was in the best interest of the child. The trial court also terminated
Mother’s parental rights. The trial court entered a written order to that effect on December
11, 2015.3 Father thereafter filed a timely notice of appeal to this Court.
Issues Presented
Father raises three issues, which are taken from his brief and slightly restated:
1. Whether the trial court erred in determining that there was clear
and convincing evidence to support termination of Father’s
parental rights on the ground of substantial noncompliance with
a permanency plan as it relates to Father’s child.
2. Whether the trial court erred in determining that there was clear
and convincing evidence to support termination of Father’s
parental rights on the ground of persistent conditions as it relates
to Father’s child.
3. Whether the trial court erred in finding that termination of
Father’s parental rights was in the best interest of the child?
Discussion
As recently explained by the Tennessee Supreme Court:
A parent’s right to the care and custody of her child is among
the oldest of the judicially recognized fundamental liberty
interests protected by the Due Process Clauses of the federal and
3
We note that many of the trial court’s oral rulings are not included in the written order eventually entered in
this cause. Whether we may consider oral rulings in termination cases, even when incorporated by reference
into written orders, has been a subject of some dispute in this Court. Compare In re K.J.G., No. E2015-00087-
COA-R3-PT, 2016 WL 1203800, at *4 (Tenn. Ct. App. Mar. 28, 2016) (holding that the trial court made
insufficient findings of fact where it made an oral ruling and attached the findings to its written order) (citing
In re: Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3 (Tenn. Ct. App. Nov.
25, 2003) (“Because of Tenn. Code Ann. § 36-1-113(k), trial courts cannot follow the customary practice of
making oral findings from the bench and later adopting them by reference in their final order.”)), with (Swiney
J., dissenting) (indicating that he would revisit the holding in Muir and instead hold that such findings are
adequate when “sufficiently detailed”). In this case, however, the order drafted by DCS and entered does not
contain a reference to or incorporation of the trial court’s oral ruling. As such, we have confined our
consideration to the written ruling in this case. The findings of fact contained therein are adequate, but
certainly do not contain the level of detail offered by the trial court in its oral ruling. We strongly encourage
litigants, attorneys, and trial courts to ensure that all of the trial court’s oral pronouncements are included in
written orders, especially in termination cases.
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state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000);
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk,
855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights,
although fundamental and constitutionally protected, are not
absolute. In re Angela E., 303 S.W.3d at 250. “‘[T]he [S]tate as
parens patriae has a special duty to protect minors . . . .’
Tennessee law, thus, upholds the [S]tate’s authority as parens
patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In
re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see
also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re
Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).
Our termination statutes identify “those situations in which the state’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting forth
grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434 S.W.3d
565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)). A
person seeking to terminate parental rights must prove both the existence of one of the
statutory grounds for termination and that termination is in the child’s best interest. Tenn.
Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination
and the best interest inquiry must be established by clear and convincing evidence. Tenn.
Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing
evidence “establishes that the truth of the facts asserted is highly probable . . . and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
“produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts
sought to be established.” Id. at 653.
In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review as set forth in Tennessee Rule
of Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
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with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or as
supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002).
When 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.
See 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). The weight, faith, and credit to be given to any
witness’s testimony lies in the first instance with the trier of fact, and the credibility accorded
will be given great weight by the appellate court. Walton v. Young, 950 S.W.2d 956, 959
(Tenn. 1997).
I.
As an initial matter, Father argues that neither the substantial noncompliance nor the
persistent conditions ground for termination can be sustained in light of the fact that there is
no order in the record adjudicating the child dependent and neglected “as regards” Father.
Father contends that such an order is required by this Court’s holding in In re Audrey S., 182
S.W.3d 838 (Tenn. Ct. App. 2005). In Audrey, we held that the ground of persistent
conditions, Tennessee Code Annotated Section 36-1-113(g)(3), can only apply where the
record contains a “prior court order removing the child from the parent’s home that was
based on a judicial finding of dependency, neglect, or abuse[.]”Audrey, 182 S.W.3d at 874.
Although Father admits that this requirement has never specifically been expanded to apply
to the ground of substantial noncompliance with a permanency plan, Father contends that the
requirement is equally relevant and that this Court should apply the prior order requirement
to the substantial noncompliance ground.
Regardless of whether the prior order requirement in Audrey is applicable to the
substantial noncompliance ground for termination,4 we conclude that the record contains a
prior dependency and neglect finding that is sufficient to constitute a prior “judicial finding
of dependency, neglect, or abuse” under Audrey. Id. at 874. Here, an October 30, 2013 order
was entered as an exhibit in the termination proceedings. The order reflects that Father and
his counsel were present for this hearing. In the order, the juvenile court specifically found
that the children at issue were dependent and neglected within the meaning of the law. Unlike
in Audrey, this order did not result from a mere preliminary hearing, but instead was entered
after an adjudicatory hearing in which the juvenile court was presented with evidence. The
4
We specifically decline to address Father’s argument that the requirement of a prior judicial finding of
dependency, neglect or abuse should be equally applicable to the ground of substantial noncompliance.
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Audrey Court clearly contemplated that an order entered after an adjudicatory hearing was a
sufficient “judicial finding of dependency, neglect, or abuse” for purposes of the persistent
condition ground for termination. Id. at 874.
We also reject Father’s argument that the order does not find the child dependent and
neglected “as regards” him. First, we note that Tennessee Code Annotated Section 37-1-
102(b)(12) defines “[d]ependent and neglected child” as, inter alia, a child “[w]ho is
suffering from abuse or neglect.” Further, Tennessee Code Annotated Section 37-1-130
allows the juvenile court to make an appropriate disposition for the child “[i]f the child is
found to be dependent or neglected.” Nothing in these provisions specifically requires that a
dependency and neglect findings must be made against or “as regards” to a specific parent.
Even if that were the case, however, we conclude that such requirement has been met. Here,
the juvenile court’s October 30, 2013 order indicates that “mother” stipulated to the fact that
the children were dependent and neglected. The order goes on, however, to also conclude
that clear and convincing evidence supports a finding of dependency and neglect. Because
any dependency and neglect “as regards” to Mother was determined by her stipulation, the
dependency and neglect finding established by the evidence clearly applies to Father. Indeed,
at the time that the child was taken into DCS custody, he was living in Father’s home, rather
than Mother’s. As such, we conclude that the trial court was entitled to rely on the October
30, 2013 order of dependency and neglect as a “judicial finding of dependency, neglect, or
abuse.” Id. at 874.
II.
Father next argues that the trial court erred in finding clear and convincing evidence
that Father substantially failed to comply with the permanency plan. Tennessee Code
Annotated Section 36-1-113(g)(2) provides one ground for termination of a parent’s parental
rights when “there has been substantial noncompliance by the parent or guardian with the
statement of responsibilities in a permanency plan pursuant to the provisions of title 37,
chapter 2, part 4[.]” Further, Tennessee Code Annotated Section 37-2-403 provides, in
relevant part:
Substantial noncompliance by the parent with the statement of
responsibilities provides grounds for the termination of parental
rights, notwithstanding other statutory provisions for termination
of parental rights, and notwithstanding the failure of the parent
to sign or to agree to such statement if the court finds the parent
was informed of its contents, and that the requirements of the
statement are reasonable and are related to remedying the
conditions that necessitate foster care placement.
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The determination of whether there has been substantial noncompliance with a permanency
plan is a question of law, to be reviewed on appeal de novo with no presumption of
correctness. In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002). Termination of parental
rights under Tennessee Code Annotated Section 36-1-113(g)(2) “requires more proof than
that a parent has not complied with every jot and tittle of the permanency plan.” In re M.J.B.,
140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). To succeed under Section 36-1-113(g)(2), 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 at 656–57 (citing In re Valentine, 79
S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App. 2003)). Second, DCS
must show that “the parent’s noncompliance is substantial in light of the degree of
noncompliance and the importance of the particular requirement that has not been met.” In re
M.J.B., 140 S.W.3d at 657 (citing In re Valentine, 79 S.W.3d at 548–49; In re Z.J.S., No.
M2002-02235-COA-R3-JV, 2003 WL 21266854, at * 12 (Tenn. Ct. App. June 3, 2003)).
Here, the record contains five permanency plans ratified and entered by the juvenile
court. Father participated in the creation of the first parenting plan and thereafter signed
documents outlining the termination criteria in the remaining four plans. Father’s required
responsibilities throughout the plans were extensive. Father was generally required to: (1)
attend an alcohol and drug assessment and follow all recommendations; (2) attend anger
management classes and follow all recommendations; (3) submit to and pass random drug
screenings; (4) build and improve parenting through supervised visitation; (5) address age-
appropriate parenting skills and discipline; (6) participate in family therapy with the child
once per month; (7) regularly attend visitation of at least twice per month and engage in
phone calls with the child; (8) not make promises to the child; (9) cooperate in a home study,
including background checks; (10) provide monthly proof of employment to DCS; (11)
provide DCS proof of stable housing; (12) pay child support as previously ordered of $20.00
per month; and (13) sign releases for DCS and generally update DCS regarding his progress,
his employment, persons in the home, and his address should anything change. Later plans
required that Father: (1) notify DCS of any significant relationship that he had that could
impact the child; (2) complete a clinical parenting assessment and follow recommendations;
and (3) demonstrate the parenting skills he had learned through visitation and family therapy,
which was increased to twice per month. Of these responsibilities, some were labeled
“critical” action steps, including that Father attend anger management and that Father obtain
and demonstrate parenting and discipline skills through supervised visitation and family
therapy. Ms. Jenkins testified that some requirements were labeled critical because they were
“more severely needed because of the circumstances for the removal and the issues . . . we
needed addressed immediately.”
First, we note that there is no dispute that the requirements of the plan were reasonable
and related to remedying the reasons for the removal of the child. There was also no dispute
that Father was fully aware of his responsibilities under the plans. On appeal, however,
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Father argues that he made a concerted effort to comply with the requirements of the plan,
but was stymied by financial barriers that prevented him from giving DCS “precisely what
they were asking for.”
We agree that Father did comply with some of the plans requirements. First, it is
undisputed that Father participated in random drug screenings and allowed home
observations. Eventually, Father also provided DCS with accurate information about his
paramour living in his home, as DCS discovered the paramour hiding in the closet during a
home visit. After the filing of the termination petition, Father completed a clinical parenting
assessment and testified without documentary support that he had also completed a mental
health assessment. The most critical aspects of Father’s responsibilities, however, are where
his participation was most lacking.
First, Ms. Jenkins testified that while Father completed a parenting assessment, he
failed to follow the recommendations that resulted from the assessment. Second, Ms. Jenkins
testified that Father only inconsistently participated in anger management treatment and
failed to provide DCS with any certificates showing his completion of treatment, a critical
action step in the parenting plans. Ms. Jenkins testified that an anger management class was
located directly across the street from Father’s home, negating any concerns regarding
Father’s lack of transportation. Apparently, Father did begin sporadically participating in the
local church’s anger management program after the filing of the termination petition. Even
Father admitted, however, that he still needed help with anger management. Ms. Jenkins also
testified that she had never received any documentation regarding a mental health
assessment.
Finally, Ms. Jenkins testified that Father failed to maintain consistent supervised and
therapeutic visitation with the child, another critical action step he was required to complete
under the plan. Ms. Jenkins explained that DCS provided Father with gas cards to help him
attend the visitations, but that the gas cards were revoked when Father was unable to provide
DCS with receipts as instructed and also claimed that he lost two of the cards. Ms. Jenkins
explained that the gas cards were necessary because Father moved three hours away from the
child’s placement after the child was taken into custody. Ms. Jenkins also stated that she
looked into other ways of providing transportation to Father, but none were feasible.
In addition, the child’s counselor testified that Father did not participate “much” in
therapy in 2014. Instead, Ms. Fletcher testified that Father’s participation only increased in
the last six months, around the time that the termination petition was filed. The child’s
counselor also testified that Father still made promises to the child that he did not keep; the
child was particularly devastated when Father failed to keep a promise to the child on his
birthday as late as June 2015.
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Father asserted at trial and in his appellate brief that his failure to fully comply with
the permanency plan stems from transportation issues. According to Father, he was required
to move more than three hours away from his son because he was unemployed and homeless.
After he became employed, however, Father testified that his visits were often prevented by
vehicle trouble. We note, however, that nothing in Tennessee Code Annotated Sections 36-1-
113(g)(2) or 37-2-403 requires that a parent’s substantial noncompliance with a permanency
plan be willful. Furthermore, Father agreed at trial that his transportation problems were
compounded by the fact that he chose to move more than three hours from his child despite
his protestations that he “can’t live without” his son. Indeed, although Father testified that he
only experienced car trouble “[o]nce every couple months,” it appears that Father’s
visitations and other requirements under the permanency plan were frequently and repeatedly
hindered by claimed vehicle problems. Furthermore, it appears that Father was able to
resolve all of his transportation woes once the termination petition was filed.
Although Father made more progress on the requirements of the permanency plan
after the filing of the termination petition, we conclude that Father largely failed to take any
action for nearly two years after the child was removed from his custody, and his belated
efforts were simply “too little, too late.” See In re K.M.K., No. E2014-00471-COA-R3-PT,
2015 WL 866730, at *6 (Tenn. Ct. App. Feb. 27, 2015) (holding that father’s efforts after the
termination petition was filed were “too little, too late”); In re A.W., 114 S.W.3d 541, 546
(Tenn. Ct. App. 2003) (holding that mother’s improvement only a few months prior to trial
was “[t]oo little, too late”). Because Father failed to complete many requirements in the
permanency plans prior to the filing of the termination petition and largely failed to complete
any of the critical action steps even by the time of trial, we must agree with the trial court that
Father substantially failed to comply with the permanency plans at issue.
III.
Father next argues that the trial court erred in finding clear and convincing evidence to
support the ground of persistent conditions. Persistence of conditions requires the trial court
to find, by clear and convincing evidence, that:
The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be
remedied at any early date so that the child can be safely
returned to the parent(s) or guardian(s) in the near future; and
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(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable and permanent home.
Tenn. Code Ann. § 36-1-113(g)(3).
“A parent’s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the parent’s
care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct.
App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-CV, 2000 WL
964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the conditions which
led to the removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6 (citing
State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990)). “Where . . .
efforts to provide help to improve the parenting ability, offered over a long period of time,
have proved ineffective, the conclusion is that there is little likelihood of such improvement
as would allow the safe return of the child to the parent in the near future is justified.” Id.
The purpose behind the “persistence of conditions” ground for terminating parental rights is
“to prevent the child’s lingering in the uncertain status of foster child if a parent cannot
within a reasonable time demonstrate an ability to provide a safe and caring environment for
the child.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 461675, at *20 (Tenn. Ct.
App. Oct. 13, 2008) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL
588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).
Here, the trial court made the following findings with regard to this ground:
16. That the child was removed from the father’s home because
of physical and psychological harm to the child stemming from
an incident whereby father admitted to urinating on the minor
child as a form of punishment and the minor child was
physically assaulted by the father's paramour [] when she
grabbed the child by the neck and attempted to rub the child’s
nose in feces on the floor of the room in which the child had
been locked into by his father.
17. That the conditions that led to the removal still persist. The
father [] has not addressed the anger management and parenting
issues that were present at the time of removal. Specifically, he
has not complied with the mental health recommendations and
has not completed an anger management class. Further, [Father]
has not consistently participated in family therapy and has been
unable to demonstrate an understanding of the child’s post-
traumatic stress diagnosis that was a result of the abuse. The
father’s paramour [] still resides in the home and she has not
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completed any actions steps in permanency plans to address her
involvement in the child’s abuse.
18. The Court finds that the conditions with regard to the child’s
mental health still persist and have become worse since the child
entered into State custody due primarily to the lack of
involvement of his parents.
19. That there is little chance that those conditions will be
remedied soon so that the child can be returned safely to the
home of the father [] because for over two years, DCS made
reasonable efforts to assist him in remedying his issues, to no
avail.
20. That the continuation of the parent/child relationship with
the father [] greatly diminishes the child's chances of being
placed into a safe, stable and permanent home.
The evidence does not preponderate against the trial court’s findings. First, the record
shows that the child was removed from Father’s home in May 2013 and placed in DCS
custody. In addition, as previously discussed, the juvenile court entered an order on October
30, 2013 finding that the child was dependent and neglected. The child never returned to
Father’s home or custody after that time. Accordingly, at the time of trial in November 2015,
the child had clearly been removed from Father’s custody by an order of dependency and
neglect for more than six months. See Audrey, 182 S.W.3d at 874 (discussed in detail,
supra).
Next, although it appears that Father has made some progress in remedying the
conditions that led to the child’s removal, we agree with the trial court that many conditions
still persist that prevent the child from returning to Father’s home at an early date.
Specifically, it appears that Father has failed to fully address his anger management issues, a
large part of why the child was removed from the home. It also appears that even as of
August 2015, Father was minimizing his participation in the abuse that occurred and the
child’s resulting mental health issues. Furthermore, it is clear from the record that it was only
around the time that the termination petition was filed that Father began to heed the advice of
the child’s therapist and social worker that Father make a consistent effort to maintain
contact with the child. Finally, we note that Ms. Thompson testified that it would be a “long
time” before Father completed parenting and anger management instruction. Indeed, Father is
only a sporadic participant in this treatment as well, citing his work schedule.
Here, it may be true that Father has made some effort to change his situation for the
betterment of the child. However, the undisputed evidence at trial paints an alarming picture
of the child’s degrading mental state. Ms. Fletcher testified that permanency for the child is
of the utmost importance and must be achieved with haste if the child is to thrive, or even
survive. Father had over thirty months at the time of trial to work on his parenting and anger
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management issues in order to regain custody of his child, but has made little progress. There
can be no dispute that more time would be required in order for the child to return to Father.
Indeed, Ms. Fletcher testified Father was only able to make minimal gains in the six months
that he has consistently participated in therapeutic visitation. Under these circumstances, we
conclude that it is unlikely that Father will be able to remedy his anger management and
parenting issues “at any early date so that the child can be safely returned to [him].” See
Tenn. Code Ann. § 36-1-113(g)(3). The trial court’s finding that clear and convincing
evidence supports this ground is therefore affirmed.
IV.
When at least one ground for termination of parental rights has been established, the
petitioner must then prove by clear and convincing evidence that termination of the parent’s
rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). When a parent has been found to be unfit (upon establishment of ground(s) for
termination of parental rights), the interests of parent and child diverge. In re Audrey S., 182
S.W.3d at 877. The focus shifts to the child’s best interest. Id. Because not all parental
conduct is irredeemable, Tennessee’s termination of parental rights statutes recognize the
possibility that terminating an unfit parent’s parental rights is not always in the child’s best
interest. Id. However, when the interests of the parent and the child conflict, courts are to
resolve the conflict in favor of the rights and best interest of the child. Tenn. Code Ann. §
36-1-101(d). Further, “[t]he child’s best interest must be viewed from the child’s, rather than
the parent’s, perspective.” Moody, 171 S.W.3d at 194.
The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case. These
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 affect 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;
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(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 or
controlled substances 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). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending
on the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests does not call for a rote
examination of each of Tenn. Code Ann. § 36-1-113(i)’s nine
factors and then a determination of whether the sum of the
factors tips in favor of or against the parent. The relevancy and
weight to be given each factor depends on the unique facts of
each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one
factor may very well dictate the outcome of the analysis.
In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
Here, the trial court was particularly troubled by the issue of best interest, chiefly
because of Ms. Fletcher’s testimony that the child’s erosion is in part due the child’s
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understanding that he may not be returned to Father. Nevertheless, the trial court determined
that termination of Father’s parental rights was in the child’s best interest because Father had
not “made lasting changes in [his] lifestyle or conduct after reasonable efforts by the State to
help, so that lasting change does not appear possible.” See Tenn. Code Ann. § 36-1-113(i)(1)
& (2). The trial court also found that no meaningful relationship exists between Father and
the child, see Tenn. Code Ann. § 36-1-113(i)(4), and that Father has “shown little or no
interest in the welfare of the child.” See Tenn. Code Ann. § 36-1-113(i)(1)(3) & (6).
We have less difficulty determining that termination of Father’s parental rights is in
the best interest of the child. Here, Father admitted to participating with paramour in abusing
the child by locking him in a room with no restroom access, then punishing him quite
horribly for the logical consequences of his and the paramour’s own parenting decisions.
While Father expressed great remorse at trial, it appears that he failed to fully understand the
wrongfulness of his actions as of August 2015, years after the incident and after extensive
mental health, parenting, and anger management treatment was made available to him. Father
also chose to move more than three hours away from his child, though that move may have
been precipitated by Father’s circumstances. What is troubling, however, is that even after
Father was made aware that it was necessary for his son’s mental health that he attend
visitation consistently, he never once entertained the idea of moving closer to his son, even as
he allegedly began experiencing constant transportation difficulties.
Finally, and most importantly, it cannot be minimized that the more time that Father
has spent with the child, the more the child’s mental health has deteriorated. Clearly, Father’s
increased involvement in the child’s life has not led to better outcomes for the child, but in
fact, has led to a worsening of the child’s mental health. Indeed, the issues became so
frightening to the child’s counselor that she recommended terminating visitation. As the trial
court remarked:
It’s very concerning as to where [the child] is as we speak today
from a mental health standpoint. It’s very concerning. An eight-
year old having suicidal ideations is absolutely disgusting and
scary. . . . I sit here and think about him even conjuring up and
understanding what that means is just absolutely terrifying, and
he has to be in a terribly dark place to even know that he is able
to do that or to even think about that. That’s just absolutely
scary.
Here, Ms. Fletcher testified that the child’s erosion was based upon the prior trauma
experienced by the child at Father’s hands, Father’s inconsistency in visits, and the
“uncertainty of permanency that has escalated with, of course, termination and the litigation.”
Denying termination of Father’s parental rights at this point would only lead to more
uncertainty, as the child cannot presently return to Father’s home given the little progress
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Father has made in complying with the permanency plans in place. As such, even if we were
to assume that Father would continue making progress, giving Father a “second chance,” as
he so desperately requested at trial, would only serve to hurt this already emotionally battered
child further. Because it is in the child’s best interest to move toward a more permanent
placement, we agree with the trial court that termination of Father’s parental rights is in the
child’s best interest.
Conclusion
The judgment of the Hawkins County Juvenile Court is affirmed and this cause is
remanded to the trial court for further proceedings consistent with this Opinion. Costs of this
appeal are taxed to Appellant Matthew T., for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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