In Re Rylee R. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 1, 2016
IN RE RYLEE R., ET AL.
Appeal from the Juvenile Court for Bradley County
No. J-13-401 Kurt Andrew Benson, Magistrate
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No. E2016-00574-COA-R3-PT-FILED-AUGUST 11, 2016
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This is a termination of parental rights case. Mother/Appellant appeals the termination of her
parental rights to two minor children on the statutory grounds of: (1) persistence of the
conditions that led to the removal of the children from Appellant’s home; and (2) substantial
noncompliance with the requirements set out in the permanency plan. Appellant also appeals
the trial court’s determination that termination of her parental rights is in the best interests of
the children, and she raises several issues concerning the admission of evidence. We
conclude that the state did not establish the predicate for termination of Appellant’s parental
rights on the ground of persistence of conditions; however, we affirm the termination of
Mother’s parental rights on the ground of substantial noncompliance with the requirements of
the permanency plan. We also affirm the trial court’s finding that termination of Mother’s
parental rights is in the children’s best interests.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Reversed in Part, Affirmed in Part, and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ANDY D. BENNETT, and
THOMAS R. FRIERSON, II, JJ., joined.
Wilton A. Marble, Jr., Cleveland, Tennessee, for the appellant, Laura F.
Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Background
On or about August 15, 2013, the Department of Children’s Services (“DCS,” or
“Appellee”) received a Child Protective Services (“CPS”) referral for lack of supervision
regarding the two minor children at issue in this case, Rylee R. (d.o.b. July 2010) and Katie
R. (d.o.b. August 2011) (together, the “Children).1 The referral indicated that the Children’s
mother, Laura F. (“Mother,” or “Appellant”) was in the hospital following a suicide attempt.
Sharon Johnson, the DCS Child Protective Investigator assigned to the case, testified that she
attempted to locate Mother following her discharge from the hospital; however, the address
given by Mother was not valid. After several attempts, Mother was located on August 21,
2013. Ms. Johnson testified that Mother presented with a black eye and three stitches on her
eyebrow. Mother disclosed that the Children’s paternal uncle, Joshua R., punched her in the
eye. This event allegedly occurred at the Children’s paternal grandmother, Sue R.’s, home.
Mother indicated that both the Children and their father, Jeremy R., were present during the
assault.2 Although Mother stated that the Children had not directly witnessed the assault, she
conceded that they were aware of what had happened when they saw blood on her face.
Mother told DCS that she had left the Children at Sue R.’s house with their father. On
September 3, 2013, CPS accompanied Mother to Sue R.’s home to see the children. When
Mother saw Jeremy R. on the porch, she told CPS not to stop; rather, CPS took Mother to a
phone, and she called Jeremy R. to inform him that CPS wanted to see the Children. By the
time CPS drove back to Sue R.’s home, however, Jeremy R. had left and taken the Children
with him. Although DCS attempted to locate Jeremy R. and the Children, it was unable to
find them.
On September 18, 2013, Sue R. filed a petition for custody of the Children. Mother
allegedly agreed to Sue R. having custody because, by her own admission, Mother was
unable to care for the Children due to lack of income and her continuing mental health issues.
Jeremy R. was arrested on October 1, 2013 on outstanding warrants for domestic
violence and failure to appear. He was taken into custody at Sue R.’s home and was
incarcerated on October 10, 2013. On the same day, i.e., October 10, 2013, the Juvenile
Court for Bradley County (the “trial court”) entered a bench order of removal granting
custody of the Children to DCS. The trial court specifically found that “there is domestic
violence in the home and the home is not suitable for the [C]hildren.” The trial court found
that the paternal grandmother “harbored her son who was recently arrested at her home. She
assisted her son in concealing the [C]hildren from CPS investigators.”
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names
so as to protect their identities
2
Father’s parental rights were terminated by order of April 23, 2015. He did not appeal this
order and is not a party to this appeal.
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On October 13, 2013, DCS held an initial Child and Family Team Meeting (“CFTM”).
At the meeting, DCS attempted to address the needs of the family in order to develop a
permanency plan for the Children. At this initial CFTM meeting, Mother was uncooperative
and stated that she would not attend any type of counseling despite a history of domestic
violence and her recent suicide attempt. Although Mother admitted that she did not, at that
time, have a valid driver’s license, she drove herself to the CFTM. Concerning housing,
Mother stated that she was living in a house that was rented in her aunt’s name. DCS
developed a permanency plan on November 4, 2013, with the goal of reunification. DCS
also provided Mother with a statement of her responsibilities, which listed each of her
requirements under the plan. On October 15, 2013, Family Services provided Mother with
information regarding the Family Resource Agency for Domestic Violence.
On October 31, 2013, the trial court held a preliminary hearing. On November 14,
2013, the trial court entered its preliminary findings and recommendations. Specifically, the
court “found probable cause that the [C]hildren . . . are dependent and neglected . . . based
upon domestic violence in the family and the [M]other’s mental health issues following a
recent suicide attempt.” The court further found that it was not in the Children’s best
interests to remain in the custody of either Sue R. or Mother. Concerning Mother, the trial
court found that Mother “is currently unstable and unable to provide a suitable home for the
[C]hildren.” The trial court noted that “[i]t was alleged that [M]other was still considering
suicide at [the time of the hearing]. She has no stable housing or reliable transportation. Her
income is not adequate to provide for the [C]hildren.” Based on the foregoing findings, the
trial court continued custody with DCS. At a status hearing on December 3, 2013, Family
Services reported to the court that it was having difficulty determining whether Mother was
compliant with the permanency plan as she was “evasive and failed to participate in
scheduled meetings to review compliance.”
On January 7, 2014, the trial court ratified the November 4, 2013 permanency plan.
This plan was signed by Mother and, in relevant part, required her to: (1) “not display acts of
domestic violence or anything with an aggressive nature in front of the [C]hildren;” (2)
provide proper supervision for the Children; (3) submit to random drug screens and
participate in alcohol and drug assessment if she fails; (4) provide proof of income; (5)
provide DCS with a valid driver’s license; (6) maintain residential stability for a minimum of
six months; (7) stay in contact with DCS; and (8) obtain a mental health intake and follow all
recommendations thereof. The goal of this permanency plan was reunification.
On January 7, 2014, the trial court held an adjudicatory hearing on dependency and
neglect. By order entered on January 9, 2014, the trial court found “clear and convincing
evidence that the [C]hildren . . . are dependent and neglected . . . based upon domestic
violence in the family and [M]other’s mental health issues following a recent suicide
attempt.” The court found that DCS “was making reasonable efforts towards reunification.”
Specifically, the court found that DCS was addressing the Children’s behavioral and medical
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issues and was supervising weekly visitation between Appellant and the Children. Based on
these findings, the trial court continued custody with DCS.
On February 21, 2014, DCS held a CFTM to discuss progress and offer support and
assistance to Mother in completing the requirements of the permanency plan. At that time,
Mother reported that she was living with her mother and would obtain her own housing “as
soon as she received her income tax return.” She stated that she was looking for a trailer to
rent. DCS drug tested Mother, and she tested positive for opiates and oxycodone, but was
unable to produce a prescription for these medications. At the time of the meeting, Mother
had not procured a valid driver’s license; her license had been suspended for failure to appear
in court following citation for failure to have insurance. At this time, Mother had obtained a
mental health intake and had been prescribed medication for depression. However, she had
not enrolled in counseling and was adamant that she would not do so. Although Mother
stated that she was employed, she could not provide any verification. At a status hearing on
April 10, 2014, the trial court ordered Mother to participate in a parenting assessment at
DCS’s expense.
On or about May 9, 2014, DCS met with Mother to review the permanency plan. At
that time, Mother reported that she had broken up with her boyfriend and had placed a
deposit on a two-bedroom trailer. She stated that she was using her ex-boyfriend’s car and
indicated that she would provide proof of insurance. At that time, Mother stated that she was
working at a local grocery, but she had no proof. DCS confirmed that Mother had been
recommended to obtain counseling from Hiwassee Mental Health and had been assigned a
case manager; however, Mother failed to follow through despite having insurance to cover
the counseling. DCS entered into a revised permanency plan with Mother. Mother’s goals
remained substantively unchanged from the initial plan; however, under the revised plan, in
addition to those requirements set out in the original parenting plan (supra), Mother was also
required to complete a parenting assessment. The revised plan was ratified by the trial court
on June 26, 2014. On July 3, 2014, Mother submitted to a parenting assessment. DCS
records indicate that Mother had failed to appear at two previously scheduled appointments.
DCS was required to make special arrangements in order to allow Mother to appear a third
time after two no-shows. Mother met with Dr. Alice Greaves, who recommended that she
seek counseling to address past abuse, post-traumatic stress disorder, obsessive compulsive
disorder, tendency to dissociate, depression, and anxiety. Dr. Greaves further recommended
that Mother seek therapy to specifically address anger and rage issues and recommended that
Mother join a group class for victims of domestic violence. Dr. Greaves further
recommended alcohol and drug assessment if Mother failed any other drug tests.
On August 14, 2014, the trial court held a review hearing. At that time, Mother’s
parenting assessment was provided to the court. At the hearing, the trial court advised
Mother that, without adequate housing, proof of employment, and proof of enrollment in
counseling, the Children could not be returned to her. The court noted that Mother had
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provided proof of transportation, insurance, and registration. Following the hearing, on or
about August 21, 2014, the trial court entered a “Review Order,” wherein it noted that
Mother had completed the parenting assessment, which had indicated the need for further
counseling. Although she initially refused to participate in counseling, the trial court’s order
notes that she “now states that she will attend [counseling] to address issues of past abuse, a
history of domestic violence, suicide attempts and a tendency to dissociate.” The court also
found that DCS continued to make reasonable efforts toward the goal of reunification by
providing assistance to Mother to help her complete the requirements of the permanency
plan.
Mother notified DCS that she was having difficulty obtaining housing and stable
employment. Accordingly, on September 12, 2014, Family Services provided Mother with
resources for housing and employment. Family Services also provided Mother with
information on obtaining a counselor. On September 26, 2014, DCS held another CFTM. At
this time, Mother informed DCS that she had moved into a home with her sister. Mother
provided a piece of paper stating that she was employed at a local grocery store. Although
she was advised that DCS would need to see a pay stub or something describing her hours
and pay, Mother provided no such documentation. Mother continued to state her opinion that
neither Joshua R. nor Jeremy R. posed a safety concern for the Children. She stated that she
would continue to allow Joshua R. and Jeremy R. to be around the Children despite the past
abuse. Following the CFTM, DCS entered into a revised permanency plan with Mother.
Mother’s requirements remained unchanged from the May 9, 2014 plan.
On October 16, 2014, the trial court held a permanency hearing. In a November 17,
2014 order, the court noted that, despite notice, Mother did not attend the hearing. The court
ratified the September 26, 2014 permanency plan, finding that it was appropriate and in the
best interests of the Children. The court further found that Mother had not completed her
responsibilities under the permanency plan despite DCS’s efforts to assist her in doing so.
Specifically, the trial court found that Mother had failed to follow the recommendations
made by Dr. Greaves following the parenting assessment. Mother had failed to address her
past abuse, suicide attempts, and tendency to disassociate. Instead, Mother had continued to
refuse the necessary therapy despite having insurance to cover it. At the time of the October
16, 2014 hearing, Mother had not provided proof of housing or proof (other than the
aforementioned note) of stable employment. Mother continued to state that, despite domestic
abuse, she would not prohibit either Joshua R. or Jeremy R. from contact with the Children.
DCS further informed the court that Mother continued to test positive for oxycodone, but
could not provide a valid prescription. At the time of the hearing, Mother had not obtained
drug or alcohol assessment as previously required by the court.
On November 4, 2014, DCS filed its petition to terminate Mother’s parental rights.
Therein, DCS asserted the grounds of substantial noncompliance with her requirements under
the permanency plan, and persistence of the conditions that led to the Children’s removal
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from Mother’s home. DCS also alleged that termination of Mother’s parental rights was in
the Children’s best interests. The trial court heard the petition on April 9, 2015; however, the
Children’s guardian ad litem was unable to participate at the hearing. The trial court entered
an order terminating Mother’s parental rights on April 23, 2015. Mother appealed the April
23, 2015 order to this Court. On review, and with the agreement of all parties, this Court
entered an order on October 1, 2015, wherein we set aside the trial court’s order terminating
Mother’s parental rights and remanded the case for a new trial with the participation of the
guardian ad litem. The first appeal was dismissed by order of October 20, 2015.
Per this Court’s instructions, DCS’s petition to terminate Mother’s parental rights was
re-tried on November 9 and November 12, 2015. By order of January 28, 2016, the trial
court terminated Mother’s parental rights on the grounds of persistent conditions and failure
to substantially comply with the requirements of the permanency plan. Mother appeals.
II. Issues
Mother raises six issues for review as stated in her brief:
1. Did the trial court err in finding that the State had proven the ground of
substantial non-compliance T.C.A. 36-1-113(g)(2) by clear and convincing
evidence?
2. Did the trial court err in finding that the State had proven the ground of
persistent conditions T.C.A. 36-1-113(g)(3) by clear and convincing evidence?
3. Did the trial court err in finding that the State had proven, by clear and
convincing evidence, that termination was in the best interest of the minor
children?
4. Did the trial court err in admitting the juvenile court file docket . . .?
5. Did the court err in admitting the “Clinical Parenting Assessment for
[Mother]?
6. Did the trial court err in admitting the hair follicle drug screen results [for
Mother]?
III. Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a fundamental
right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state
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may interfere with parental rights only when a compelling interest exists. Nash–Putnam, 921
S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes
identify “those situations in which the state’s interest in the welfare of a child justifies
interference with a parent’s constitutional rights by setting forth grounds on which
termination proceedings can be brought.” In re W.B., Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing
Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove
both the existence of one of the statutory grounds for termination and that termination is in
the children’s best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360,
367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds for termination
and that termination of parental rights is in the children’s best interests must be established
by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79
S.W.3d at 546. Clear and convincing evidence “establishes that the truth of the facts asserted
is highly probable . . . and eliminates any serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct.
App. 2004), perm. app. denied (Tenn. July 12, 2004). Such evidence “produces in a fact-
finder’s mind a firm belief or conviction regarding the truth of the facts sought to be
established.” Id. at 653.
In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo with
a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d). We must then determine whether the facts, as found by the trial court or as supported
by the preponderance of the evidence, clearly and convincingly establish the elements
necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
IV. Evidentiary Issues
Mother argues that the trial court erred in admitting, as trial exhibit 2, the “entire
juvenile file,” which includes both the clinical assessment and the drug screen results
referenced in Issues 5 and 6 above. In her argument, Mother relies, in part, on Tennessee
Rule of Appellate Procedure 8A, which provides:
(c) In addition to the papers excluded from the record pursuant to Rule 24(a),
any portion of a juvenile court file of a child dependency, delinquency or status
case that has not been properly admitted into evidence at the termination of
parental rights trial shall be excluded from the [appellate] record.
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Contrary to Mother’s argument, Rule 8A does not preclude, from the appellate record, those
portions of the juvenile record that may have been admitted at the trial of the petition to
terminate parental rights. Rather, this Court must limit its review to those documents filed
after the filing of the petition for termination, unless subsequently entered into the record-
made an exhibit at trial, entered into evidence by stipulation of the parties or by order of the
court. It is not proper to include extraneous documents in the record or for this Court to
consider them on appeal. See In re M.J.B., 140 S.W.3d at 651. In other words, Rule 8A
addresses those instances where the juvenile record (or any portion thereof) is not admitted
into evidence at the hearing on the petition to terminate parental rights, but is, nonetheless
included in the appellate record. Here, however, the juvenile file was admitted as trial
exhibit 2. Therefore, Rule 8A is not triggered to preclude the file from our record.
Regardless, we have reviewed the record in this case, and there is sufficient evidence to
support termination of Mother’s parental rights even if we exclude the juvenile file.
Specifically, all permanency plans were admitted into evidence independent of the juvenile
file. The trial court’s finding that Mother failed to comply with the requirements contained
in those plans is based on evidence adduced at the hearing, as discussed infra. Thus, even if
we allow, arguendo, that the juvenile file should not have been part of the record on appeal,
and even if we go so far as to allow, arguendo, that the juvenile file was improperly admitted
into evidence at the hearing before the trial court, the existence of independent evidence to
support at least one of the grounds for termination of Appellant’s parental rights would
render such error harmless. Carpenter v. Klepper, 205 S.W.3d 478, 485 (Tenn. Ct. App.
2006), perm. app. denied (Tenn. Oct. 2, 2006) (“It is well established that if erroneously
admitted evidence is merely cumulative of other evidence presented in the case, its admission
does not constitute reversible error.”) (internal citations omitted).
V. Grounds for Termination of Parental Rights
As noted earlier, the trial court relied on the following statutory grounds in
terminating Appellant’s parental rights: (1) substantial noncompliance with the Tennessee
Code Annotated Section 37-2-403 permanency plan, Tennessee Code Annotated Sections 36-
1-113(g)(2); and (2) persistence of conditions, Tennessee Code Annotated Section 36-1-
113(g)(3). Although only one ground must be proven by clear and convincing evidence in
order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this Court to
review every ground relied upon by the trial court to terminate parental rights in order to
prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn.
2010). Accordingly, we will review both of the foregoing grounds.
A. Reasonable Efforts
Before addressing the specific grounds for termination of Appellant’s parental rights,
we note that, historically, the decision to pursue a termination of parental rights on the
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grounds of substantial noncompliance with a permanency plan has invoked DCS’s statutory
duty to make reasonable efforts to facilitate the safe return of children to the parent’s home.
In re R.L.F., 278 S.W.3d 305, 315 (Tenn. Ct. App. 2008) (citing Tenn. Code Ann. §§ 37-1-
166(b), –166(a)(2), –166(g)(2)); see also In re Tiffany B., 228 S.W.3d 148, 151, 160 (Tenn.
Ct. App. 2007) (vacating a finding of abandonment, substantial noncompliance, and
persistence of conditions for failure to make reasonable efforts). However, in In re Kaliyah
S., 455 S.W.3d 533 (Tenn. 2015), the Tennessee Supreme Court specifically overruled “the
holding of In re Tiffany B. and other cases following the holding in In re C.M.M. to the
extent that the court required DCS to prove by clear and convincing evidence that it made
reasonable efforts to reunify as a precondition to termination of parental rights (citations
omitted).” Id. at 555 n. 34. Proof of reasonable efforts is specifically required by statute to
prove the ground of persistent conditions. However, even under that ground for termination,
DCS’s efforts to assist the parent “may be found to be reasonable if such efforts exceed the
efforts of the parent or guardian toward the same goal.” Id. (citing Tenn. Code. Ann. § 36-1-
102(1)(A)(ii)). In Kaliyah, the Court specifically stated that
proof of reasonable efforts is not a precondition to termination of parental
rights of a respondent parent. As with other factual findings made in
connection with the best interest analysis, reasonable efforts must be proven by
a preponderance of the evidence, not by clear and convincing evidence. In re
Audrey S., 182 S.W.3d at 861. After making the underlying factual findings,
the trial court should then consider the combined weight of those facts to
determine whether they amount to clear and convincing evidence that the
termination is in the child’s best interest (citations omitted).
Id. at 555.
Turning to the record, Family Services Worker, LeAnn Smith, was the primary worker
on this case. Ms. Smith testified that she discussed Mother’s responsibilities under the
permanency plans with Mother and offered assistance to Mother. Specifically, DCS paid for
the parenting assessment. In addition, Ms. Smith testified that, on multiple occasions, she
discussed with Mother the importance of obtaining counseling and therapy and following the
recommendations of the providers. Ms. Smith testified that she offered recommendations for
treatment. Likewise, Stephanie Gayle, another Family Services Work assigned to the case,
testified that DCS would set up appointments for counseling on behalf of Mother, but Mother
would often fail to attend. Without extending the length of this opinion to set out every effort
DCS made to assist Mother, suffice it to say that, from the totality of the circumstances, there
is clear and convincing proof that DCS did, in fact, make reasonable efforts to assist Mother
in this case. Despite DCS’s best efforts, however, the record indicates that Mother has failed
to avail herself of these opportunities, see discussion infra.
B. Persistence of the Conditions that Led to the Children’s Removal
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Tennessee Code Annotated Section 36-1-113(g)(3) provides that termination of parental
rights may be based upon persistence of conditions. Persistence of conditions is defined as:
(3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months:
(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 an
early date so that the child can be safely returned to the parent(s) or
guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly
diminishes the child's chances of early integration into a safe, stable and
permanent home.
The purpose behind the “persistence of conditions” ground for terminating parental rights is
“to prevent the child’s lingering in the uncertain status of foster child if a parent cannot
within a reasonable time demonstrate an ability to provide a safe and caring environment for
the child.” In re Arteria H., 326 S.W.3d 167, 178 (Tenn.Ct.App.2010), overruled on other
grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn.2015).
In its order terminating her parental rights, the trial court specifically found that DCS had
proven, by clear and convincing evidence, that Mother had failed to remedy the conditions
that led to the Children’s removal from her custody. Specifically, the trial court found that
Mother
has not adequately addressed the mental health issues in a timely fashion. The
children were placed into custody following a suicide attempt [b]y [Mother]
and issues of domestic violence. Since that time, [Mother] has failed to follow
through with the therapy recommended by various professionals and in June
2015 attempted to take her life by taking sleeping pills. Then again two weeks
later is taken back to the ICU following an overdose of sleeping pills and she
has returned again in October 2015 following a statement regarding suicide.
She is without stable housing or full time employment and is only now
attending therapy sessions, but has only attended four sessions since June
2015.
In In re Audrey S., 182 S.W.3d 838, 872 (Tenn.Ct.App.2005), perm. app. denied
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(Tenn. Nov. 7, 2005), this Court held that, “based on the statutory text and its historical
development, [the ground of persistence of conditions found in Tennessee Code Annotated
Section 36-1-113(g)(3)] applies as a ground for termination of parental rights only where the
prior court order removing the child from the parent’s home was based on a judicial finding
of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 872. In the first instance,
the Children were not, in fact, removed from Mother’s home; rather, they were removed from
Sue R.’s home. In re Destaney D., No. E2014-01651-COA-R3-PT, 2015 WL 3876761, *6
(Tenn. Ct. App. June 23, 2015) (“[W]e hold that the statutory ground of persistence of
conditions is not applicable to Father . . . inasmuch as the record contains no order removing
the Children from Father’s home.”). More importantly, however, it was not the order
adjudicating dependency and neglect that precipitated the Children’s removal to state
custody; rather, it was the petition for custody that was filed by Sue R. As noted above, the
Children were placed in DCS’s custody pursuant to an October 10, 2013 bench order of
removal, wherein the juvenile court specifically found that “there is domestic violence in
[Sue R.’s] home and the home is not suitable for the [C]hildren.” The trial court also found
that Sue R. “harbored her son who was recently arrested at her home. She assisted her son in
concealing the [C]hildren from CPS investigators.” Likewise, in In re Audrey S., the
removal of the children to state custody was based on the father’s petition for a change in
custody, and was not based on an adjudication of dependency and neglect. In re Audrey S.,
182 S.W.3d at 875. Accordingly, this Court held that the trial court erred in relying on the
statutory ground of persistent conditions to terminate parental rights. Id. at 876.
Because the Children were not, in fact, removed from Mother’s home, nor by an order
adjudicating dependency and neglect, we conclude that Appellee failed to meet the threshold
requirement for application of the ground of persistent conditions. Accordingly, we reverse
the trial court’s finding that Mother’s parental rights should be terminated on this ground and
turn to the remaining ground of substantial noncompliance with the requirements of the
permanency plan.
C. Substantial Noncompliance with the Requirements of the Permanency Plan
Tennessee Code Annotated Section 36-1-113(g)(2) provides that parental rights may be
terminated when “[t]here has been substantial noncompliance by the parent . . . with the
statement of responsibilities in a permanency plan.” However, as discussed by this Court in
In re M.J.B., 140 S.W.3d 643 (Tenn.Ct.App.2004):
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and tittle
of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-113(g)(2),
the Department 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
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Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct.
App. 2003), and second 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 Valentine, 79 S.W.3d at 548-49; In re
Z.J.S., 2003 WL 21266854, at *12. Trivial, minor, or technical deviations
from a permanency plan's requirements will not be deemed to amount to
substantial noncompliance. In re Valentine, 79 S.W.3d at 548.
Id. at 656-57. “Nonetheless, the permanency plans are not simply a series of hoops for the
biological parent to jump through in order to have custody of the children returned.” In re
C.S., Jr., et al., No. M2005-02499-COA-R3-PT , 2006 WL 2644371, at *10 (Tenn. Ct. App.
Sept. 14, 2006). Rather,
the requirements of the permanency plan are intended to address the problems
that led to removal; they are meant to place the parent in a position to provide
the children with a safe, stable home and consistent appropriate care. This
requires the parent to put in real effort to complete the requirements of the plan
in a meaningful way in order to place herself in a position to take responsibility
for the children.
Id.
As noted above, the trial court ratified several permanency plans finding that the
Appellant’s requirements were reasonably related to remedying the reason for foster care and
were in the Children’s best interests. Mother’s responsibilities under these plans were to: (1)
provide appropriate supervision for the Children; (2) sign all required released for DCS to
ensure proper case management; (3) submit to random drug tests; (4) obtain alcohol and drug
assessment; and (5) provide a current valid driver’s license, proof of car insurance, vehicle
registration, and transportation plan; (6) provide proof of legal income; (7) maintain
residential stability for a minimum of six months; (8) maintain contact with Family Services
and report any change in circumstance within 24 hours; (9) take all medications as
prescribed; (10) obtain a mental health intake and follow all recommendations thereof; (11)
maintain health insurance; and (12) complete a parenting assessment.
Concerning the foregoing requirements, in its order terminating her parental rights, the
trial court made specific findings that Mother had: (1) “failed to address mental health
concerns raised in her mental health assessment and parenting assessment by attending
recommended therapy and domestic violence counseling;” (2) had failed to provide proof of
residential stability; (3) continued to test positive for unprescribed medications; (5) had failed
to follow through with the recommendations of her alcohol and drug assessment. Although
the trial court found that Mother had provided proof of a valid driver’s license and had
complied with DCS by signing releases, the trial court stated that it “cannot find that this
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compliance is in any way substantial when she has failed to follow through with addressing
the root cause of the children’s placement into foster care; unaddressed mental health
concerns.” The record supports this finding.
As found by the trial court in several of its orders, the primary concerns in this case are
with domestic violence and Mother’s unaddressed mental health issues. In treating Mother,
Dr. Greaves opined that “If [Mother’s] anger gets out of control or dissociation reaches a
severe point, or her suicidal desire returns, the safety of the children in the household can be
endangered.” Dr. Greaves further opined that, if Mother engages in therapy and commits to
addressing her issues, then she may be able to ensure the Children’s safety and her own.
However, Dr. Greaves explained that, if Mother “chooses to keep things as they are,” then
“things might only get worse and cause more serious impairment to her mental health, which
would also likely affect her children.”
During her testimony, Mother admitted that, following the trial date on April 9, 2015,
where her parental rights were initially terminated, she attempted to take her life by overdose
of sleeping pills on June 8, 2015. She was taken to the hospital where she was placed on life
support for a period of time. After she was stabilized, Mother was transported to a mental
health facility, where therapy was recommended. Although a therapy session was scheduled,
Mother failed to attend. Mother also acknowledged that, on or around June 20, 2015, she
was again admitted to the hospital in respiratory distress following an event where she
admitted to taking extra sleeping pills. Mother claimed that she was not attempting suicide,
but testified that she was attempting to go to sleep and that is why she took the extra
medication. Following the June 20, 2015 event, Mother was again placed on life support for
a day and was transferred back to the mental health facility. This time, she took the medical
advice to attend therapy. However, on October 27, 2015, she was again found unresponsive
after stating that it “would be best if [she] just died.” Mother stated that she was not
attempting suicide on October 27, 2015. Although, during her testimony, Mother
acknowledged that she is in need of therapy, she admitted that she has chosen not to follow
the recommendations of providers because “she did not want to.” It appears that Mother has
only recently made efforts toward addressing her mental health issues by attending some
counseling sessions; however, she had failed to attend all of her scheduled sessions.
In addition to the mental health concerns, which have gone largely unaddressed, Mother
has failed to show an ability to maintain stable housing and employment. At the time of the
hearing, she had been living with her boyfriend in a hotel room for over a month. Mother
testified that, following her release from the hospital in June of 2015, she had lived in at least
two other hotels and had moved approximately five times since the summer of 2015. Mother
openly acknowledged that her housing was not suitable for the Children, but claimed that she
intended to look for other housing.
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Meanwhile, the Children have been in foster care. There is no clear evidence that Mother
will, in fact, follow through with the necessary therapy, or that her mental health issues will
be resolved at any early date. In light of her suicide attempts, there can be no doubt that
Mother’s issues are serious. The fact that Mother has not taken the opportunities afforded,
during the pendency of this case, to address these issues is disheartening.
We conclude, therefore, that the facts, as found by the trial court, are supported by the
preponderance of the evidence and clearly and convincingly establish the elements necessary
to terminate Appellant’s parental rights on the ground of substantial noncompliance with the
requirements of the permanency plan. Tenn. Code Ann. § 36-1-113(g)(2) Jones v. Garrett,
92 S.W.3d at 838. Because only one ground for termination must be found, by clear and
convincing evidence, our reversal of the trial court’s finding that termination was warranted
on the ground of persistent conditions does not require reversal of the trial court’s ultimate
decision to terminate Appellant’s parental rights so long as there is clear and convincing
evidence that termination of Appellant’s parental rights is in the Children’s best interests.
Tenn. Code Ann. § 36-1-113(c). We now turn to address that question.
VI. Best Interests
When at least one ground for termination of parental rights has been established, the
petitioner must then prove by clear and convincing evidence that termination of the parent’s
rights is in the child's best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). When a parent has been found to be unfit (upon establishment of 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. at 877. 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 effect a lasting adjustment
after reasonable efforts by available social services agencies for such duration
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of time that lasting adjustment does not reasonably appear possible;
***
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
***
(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 . . . .
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.
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
In its order terminating her parental rights, the trial court found that Mother has “not
made changes to her conduct and circumstances that would make it safe for the children to go
home.” Tenn. Code Ann §36-1-113(i)(1). During her testimony, Mother stated that she is
not ready for the Children to return to her care. We agree. Because Mother has failed to
address her mental health issues and has failed to maintain stable housing or employment,
there is clear and convincing evidence that she has failed to make any meaningful adjustment
of circumstance so as to allow the Children’s safe return to her custody. The trial court also
found that Mother has “not made lasting changes in her lifestyle or conduct after reasonable
efforts by the State to help.” The evidence indicates that, during the 25 months that these
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Children have been removed from her custody, Mother has failed to make any significant
improvement in her living conditions in terms of stable housing or employment. More
importantly, however, Mother has continued to abuse prescription medications, has attempted
suicide on several occasions during the pendency of this matter, and has failed to address her
mental health issues. As discussed by Dr. Greaves, Mother’s failure to address these issues
indicates that her mental and/or emotional status poses a substantial risk of harm to the
Children. Accordingly, it is not in their best interests to be returned to Mother’s care.
Meanwhile, the evidence suggests that these Children have flourished in their foster
home. The Children’s foster mother testified that, when the Children were first placed in her
home, they showed some concerning behavior. Specifically, the older child would show her
genitals and touch herself inappropriately. Both Children would play games where one
would lie on the floor as if she were dead and the other child would say, “Mommy, are you
dead, wake up mommy.” The foster mother testified that she found this behavior disturbing
and had to redirect the Children and teach them that the game was inappropriate. The foster
mother also testified that the older child would attempt to wake the foster mother up by
asking, “Are you dead?” In addition, after they were placed in foster care, the Children
would often talk about incidents of domestic violence, and they were very sensitive to loud
noises. Having addressed these issues, however, the foster mother testified that the Children
are now well adjusted to her home, and they consider their foster parents to be their parents.
From the totality of the circumstances, it appears that the Children are thriving in their
new environment and that a change in custody, at this point, would be detrimental to their
mental and emotional wellbeing. This is especially so in light of the fact that Mother has
failed to effect any lasting change in her circumstances by addressing her mental health
issues. Accordingly, we conclude that the facts, as found by the trial court, are supported by
the preponderance of the evidence and clearly and convincingly establish that termination of
Appellant’s parental rights is in the Children’s best interests.
VII. Conclusion
We reverse the trial court’s order terminating Appellant’s parental rights on the
ground of persistence of the conditions that led to the Children’s removal. We affirm the
order of the trial court terminating Appellant’s parental rights on the ground of substantial
noncompliance with the requirements of the permanency plan, and the trial court’s finding
that termination of Appellant’s parental rights is in the Children’s best interests. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to the Appellant, Laura F. Because Appellant is
proceeding in forma pauperis in this appeal, execution for costs may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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