In re Envy J. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 16, 2016 Session
IN RE ENVY J., ET AL.
Appeal from the Circuit Court for Shelby County
No. CT00370414 Robert L. Childers, Judge
________________________________
No. W2015-01197-COA-R3-PT – Filed September 22, 2016
_________________________________
Mother appeals the trial court‟s termination of her parental rights. The trial court terminated
her parental rights on the grounds that the children were victims of severe abuse and that
mother had failed to financially support the children. The trial court also concluded that
termination of parental rights was in the children‟s best interest. After a thorough review of
the record, we conclude that there was not clear and convincing evidence of abandonment by
willful failure to support. But, we conclude that there was clear and convincing evidence of
severe abuse and that termination was in the best interest of the children. Consequently, we
affirm the termination of Mother‟s parental rights.
Tenn. R. App. 3 Appeal as of Right, Judgment of the Circuit Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Terrell L. Tooten, Memphis, Tennessee, for the appellant, Teshia J.
Herbert H. Slattery, III, Attorney General and Reporter; Rachel E. Buckley, Assistant
Attorney General, for the appellee, State of Tennessee Department of Children‟s Services.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2013, a case manager with the Department of Children‟s Services
(“DCS”) was in search of Teshia J. (“Mother”). She found Mother, who was eight months
pregnant, living at a hotel with one of her children, Envy J., born in December of 2011.
Mother told the case manager that she had been going from her aunt‟s house to her cousin‟s
house and that she did not have stable housing. Mother also admitted that she used marijuana
every day, including that very day. Mother claimed, however, that she only smoked
marijuana outside to prevent exposing Envy.
The case manager decided to drug test Mother, not only due to her admission of drug
use, but also because of her past history with DCS. The case manager was already involved
with two of Mother‟s older children. Mother supplied a urine sample in a drug test cup
provided by the case manager and gave written consent to the drug screen. From lines that
either appeared or did not appear on the cup, the case manager and Mother could see that the
sample tested positive for marijuana, barbiturates, and benzodiazepine. Envy entered state
custody that day.
Also on that day, an investigator with DCS Child Protective Service received a
referral that Envy was drug-exposed. The case investigator later held a Child and Family
Team meeting, which included Mother. During the meeting, the investigator discussed with
Mother her drug use. Mother again admitted to smoking marijuana but denied the use of any
other drugs. The investigator administered a drug test, which was required as part of her
duties in a drug-exposed infant case. Mother‟s sample tested positive for THC.1
Mother gave birth to a son, Gab‟iel J., in July of 2013. The day after his birth, DCS
received a referral that Gab‟iel was also drug-exposed. Gab‟iel‟s urine drug screen at birth
came back positive for both THC and methamphetamines. A cord blood test revealed
positives for THC and benzodiazepines. Mother also tested positive for THC at the time of
Gab‟iel‟s birth. On August 16, 2013, Gab‟iel entered state custody.
On December 13, 2013, the Juvenile Court of Shelby County, Tennessee, held a
hearing on a petition filed by DCS to adjudicate Envy and Gab‟iel dependent and neglected.
The juvenile court concluded that there was clear and convincing evidence that the children
were dependent and neglected and that Gab‟iel was a victim of severe abuse due to Mother‟s
use of drugs while she was pregnant. The juvenile court also ordered that the children
remain in DCS custody and relieved DCS of any obligation to make reasonable efforts
toward the return of the children to their pre-removal home. See Tenn. Code Ann. § 37-1-
166(g)(2), (4) (2014). Mother appealed the juvenile court‟s decision to the Circuit Court of
Shelby County, Tennessee. See id. §§ 37-1-107(e), -159(a) (2014).
1
THC or tetrahydrocannabinol “is a marijuana metabolite that is stored in fat cells and can be detected
in the body up to thirty days after smoking marijuana.” Interstate Mech. Contractors, Inc. v. McIntosh, 229
S.W.3d 674, 677 (Tenn. 2007).
2
While the appeal of the dependency and neglect proceeding was pending, on August
28, 2014, also in circuit court, DCS filed a petition to terminate the parental rights of Mother
and the father of Envy and Gab‟iel.2 As grounds for terminating Mother‟s parental rights,
DCS alleged abandonment by failure to support, substantial noncompliance with the
permanency plan, and severe child abuse.
Faced with the prospect of separate hearings on the de novo appeal from juvenile
court and the petition for termination of parental rights, DCS filed a “motion to join hearing
on termination of parental rights petition with dependency and neglect appeal.” DCS argued
that “[t]he de novo appeal and [t]ermination involve the common issue of law and fact of
severe abuse, which warrants a joined hearing for the purposes of ensuring consistent rulings,
avoiding unnecessary delay, and preserving judicial resources.” DCS further argued that
“[i]f these cases were heard in two different hearings, unnecessary delay and waste of judicial
resources would occur.” As authority for the requested relief, DCS cited a memorandum
opinion of our Court, an opinion which included a warning that it should not be cited or
relied upon in any unrelated case. See Tenn. Ct. App. R. 10.
Over Mother‟s objection, the trial court granted DCS‟s motion to join the two
hearings. However, rather than conducting the hearings concurrently, the court ordered that
“the petitions shall be heard consecutively beginning with the de novo appeal of the
dependency and neglect matter.”
The hearing on the appeal of the dependency and neglect proceeding commenced on
May 11 and concluded on May 12, 2015. At the conclusion of the proof, the trial court ruled
from the bench that both children were dependent and neglected and that Gab‟iel was a
victim of severe abuse. The trial court also ordered that the children would remain in the
custody of DCS.
After ruling on the appeal, the trial court moved immediately into the hearing on the
petition for termination of parental rights. Before the presentation of any proof, DCS
announced it would not proceed against Mother on the ground of substantial noncompliance
with the permanency plan. DCS also asked that the proof of severe abuse presented in the
dependency and neglect hearing be considered as evidence in the parental termination
hearing. Mother‟s attorney did not object to DCS‟s request.
The children‟s foster mother (“Foster Mother”) testified first at the hearing on
termination of parental rights. During her testimony, Foster Mother described the children‟s
medical needs, their contact with Mother, their current state, and her hopes for the children‟s
2
Envy and Gab‟iel‟s father did not participate in the hearing on the petition to terminate parental rights
and has not appealed the decision to terminate his parental rights. Therefore, this opinion deals solely with the
termination of Mother‟s parental rights.
3
future. Once Gab‟iel came into custody, DCS placed the children with the same foster
parents, and as of the hearing date, the foster parents had cared for the children for twenty-
one months. When asked about the condition of the children when they were first placed
with her, Foster Mother described Gab‟iel as having an enlarged heart, respiratory issues, and
a flap of skin covering his airway. His respiratory issues required ongoing treatment. Envy,
on the other hand, had no special medical needs.
According to Foster Mother, Mother last visited the children in November of 2013.
Mother last attended one of the children‟s medical appointments in October of 2013. Foster
Mother testified that Mother had last seen the children during one of her court appearances,
which took place on March 2, 2015. Foster Mother related that the children did have at least
twice weekly phone calls with Mother. Foster Mother estimated that the calls averaged two
or three minutes in duration.
Foster Mother described the children‟s current state as very happy. Envy participated
in dance and music classes, and both children took art lessons and attended Sunday School.
In the period of time the children had been with the foster parents, the foster parents had
taken them on trips to Washington, D.C., New York, and Atlanta. Foster Mother said the
children referred to her as “Mom” and to her husband as “Daddy.”
Foster Mother expressed her hope that she and her husband could adopt both children.
Both foster parents worked, Foster Mother as a nurse and foster father as a general sales
manager, but Foster Mother stated that both of their schedules were flexible and that they
shared in fostering responsibilities. On cross-examination, Foster Mother was asked if she
had been advised of Gab‟iel‟s drug exposure and the potential for developmental issues and
whether, in light of that information, she still desired to adopt the children. Foster Mother
responded, “Absolutely.”
As she did at the hearing on dependency and neglect, the DCS case manager (the
“Case Manager”) also testified. Her testimony covered several areas, including Mother‟s
support of and interactions with the children, Mother‟s interactions with her, and her
impressions of the foster parents. The Case Manager stated Mother provided financial
support during the first six weeks to two months after Gab‟iel‟s birth, but support ceased
after that other than providing snacks for visits. The Case Manager agreed that Mother was
able-bodied and capable of being employed while the children were in foster care. At some
point in time, which is not clear from the record, Mother‟s attorney provided Case Manager
with a letter verifying that Mother was employed by a cleaning business making
approximately $250 per week. Mother also informed the Case Manager that she worked off
and on at Williams-Sonoma, but again, no time period was mentioned.
The Case Manager had witnessed the children interacting with Mother. When she
supervised visits between Mother and the children, the interactions were appropriate, and
4
Envy referred to Mother as “Mother.” However, as Envy has grown older, the Case Manager
sometimes had to prompt Envy to refer to Mother as “Mother.” The Case Manager observed
that, at Foster Care Review Board meetings, Mother would check the children thoroughly
every time she saw them. When asked why Mother did that, according to the Case Manager,
Mother explained “that anyone could harm her children, and she don‟t [sic] know if they are
harmed or not.”
Ultimately, Mother herself became a safety concern for DCS. The Case Manager
stopped supervising Mother‟s visits “because [Mother] kept making threats towards me and
other DCS staff.” The Case Manager related that Mother,
stated she was going to beat me up before. She stated she was going to slap
me. She stated that if her children were not returned to her on or around
December 2013, around that court hearing, that she was going to get me, the
Judge, the attorneys and the bailiffs. And the Juvenile Court better have over
1,000 bailiffs out there because she did not care.
The Case Manager described the situation during court proceedings involving Mother and
her support group as “volatile.”
The Case Manager testified that the children were doing great in the foster home. She
stated that Envy initially “had some social issues” apparently because Mother “would not
allow [Envy] to play with other children” or “go outside.” The Case Manager said that the
foster parents loved the children and that they were “really on top of it.”
The testimony of the Case Manager concluded DCS‟s proof. Although Mother had
been present for the dependency and neglect hearing, Mother was not present for the hearing
on termination of parental rights and was not called to testify. The only proof offered on
behalf of Mother was a statement from her attorney concerning his observations of Envy
calling Mother “mom” or “mama” in the presence of Foster Mother. The statement was
offered, without objection, to rebut the testimony of Foster Mother that the children did not
refer to Mother as “Mother.”
At the conclusion of the termination of Mother‟s parental rights hearing, the trial court
made findings on the record. The trial court concluded that Mother‟s parental rights should
be terminated based upon abandonment by failure to support and severe child abuse and that
termination would be in the children‟s best interest.
After the trial court stated its findings on the record, a discussion ensued regarding
how best to include exhibits on severe child abuse entered in the dependency and neglect
proceeding in the record for the parental termination case and the numbering of the exhibits.
At this point, Mother‟s attorney objected to the entry of these exhibits into the parental
5
termination proceedings. The attorney argued that these exhibits were not actually entered
into evidence during the parental termination proceedings, but he would not have objected to
their entry had they been introduced during the proceedings. The trial court overruled the
objection.
The trial court entered an order finding the children dependent and neglected and a
separate order concluding that Mother‟s parental rights should be terminated on the same
date, May 26, 2015.
On appeal, Mother argues that the trial court erred: (1) in admitting certain evidence
into the hearing on the petition to terminate Mother‟s parental rights; (2) in ruling that there
was clear and convincing evidence of grounds to terminate Mother‟s parental rights; and (3)
in ruling that that there was clear and convincing evidence that termination was in the best
interest of the children.
II. ANALYSIS
Termination of parental rights is one of the most important decisions courts make. As
acknowledged by the United States Supreme Court, “[f]ew consequences of judicial action
are so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S. 745, 787
(1982). Terminating parental rights has the legal effect of reducing the parent to the role of a
complete stranger and of “severing forever all legal rights and obligations of the parent or
guardian.” Tenn. Code Ann. § 36-1-113(l)(1) (Supp. 2015).
A parent has a fundamental right, based in both the federal and State constitutions, to
the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In
re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174-75 (Tenn. 1996); In re Adoption of a Female Child, 896 S.W.2d 546, 547-48 (Tenn.
1995). While fundamental, parental rights are not absolute. The State may interfere with
parental rights, through judicial action, in some limited circumstances. Santosky, 455 U.S. at
747; In re Angela E., 303 S.W.3d at 250.
Our Legislature has identified those situations in which the State‟s interest in the
welfare of a child justifies interference with a parent‟s constitutional rights by setting forth
the grounds upon which termination proceedings may be brought. Tenn. Code Ann. § 36-1-
113(g) (Supp. 2015). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at
250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and parental rights may be
terminated only where a statutory ground exists. Tenn. Code Ann. § 36-1-113(c)(1) (Supp.
2015); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998).
6
A. CONSECUTIVE PROCEEDINGS
Because the timing of the hearing on termination of parental rights, on the same day as
the hearing on dependency and neglect, is intertwined with the other issues raised on appeal,
we address first the prudence of conducting such hearings consecutively, one immediately
following the other. At least in the context of cases in juvenile court, we have emphasized
the distinctiveness of the two types of proceedings:
A termination of parental rights proceeding is not simply a continuation of a
dependent-neglect proceeding. It is a new and separate proceeding involving
different goals and remedies, different evidentiary standards, and different
avenues for appeal. The primary purpose of a dependent-neglect proceeding is
to provide for the care and protection of children whose parents are unable or
unwilling to care for them. The sole purpose of the termination proceeding
under Tenn. Code Ann. § 36-1-113 is to sever irrevocably the legal
relationship between biological parents and their children.
In re M.J.B., 140 S.W.3d 643, 651 (Tenn. Ct. App. 2004). Although some distinctions fall
away once dependency and neglect and parental termination proceedings reach circuit court,
the goal and remedy of each proceeding remain different. In addition, unless res judicata
applies, the trial court must make separate findings in each proceeding based on the proof
presented at each respective proceeding. See In re Shannon P., No. E2012-00445-COA-R3-
PT, 2013 WL 3777174, at *4 (Tenn. Ct. App. July 16, 2013), perm. app. denied, (Tenn. Oct.
16, 2013); In re Adriana L., No. M2013-00646-COA-R3-PT, 2013 WL 5434629, at *3
(Tenn. Ct. App. Sept. 25, 2013), perm. app. denied, (Tenn. Dec. 23, 2013).
Here, despite the trial court‟s prior order denying a joint hearing and the judge‟s
efforts during the hearing, the fact that the hearings were held on the same day seemed to
confuse counsel for DCS. At one point during the dependency and neglect hearing, counsel
for Mother objected to the admission of a permanent parenting plan on the basis that it was
irrelevant to dependency and neglect. Counsel for DCS responded: “Your Honor, . . . I do
think that this is a Termination of Parental Rights Hearing and a Dependency and Neglect
appeal. It was my understanding we were having this all in one hearing.” The trial court
quickly corrected counsel, but later in the hearing on dependency and neglect, counsel for
DCS made the following admission:
Yes, Your Honor. I‟m so sorry to interrupt you, but while you were back
there, there were some kind of housekeeping things that we were going over.
There was some confusion, unfortunately, on our part as you are aware, that
has got passed around to some other people while [co-counsel] was on leave
and I was doing Juvenile Court stuff. And I had – it occurred to me that [co-
counsel] and I had apparently misunderstood the prior Order. And we have
7
been putting on our proof like you were hearing both petitions jointly.
Although we can find no prohibition to conducting hearings on dependency and
neglect and termination of parental rights consecutively, the hearings must be distinct.
Certainly one method of accomplishing that goal would be to separate the hearings by at least
a day or more. Furthermore, evidence admitted in a dependency and neglect hearing should
not be relied upon for parental termination unless that evidence was also admitted in the
hearing on parental termination. This point brings us to the first of several evidentiary issues
raised by Mother.
B. ADMISSIBILITY OF EVIDENCE
Mother argues that the trial court erred in admitting evidence into the parental
termination hearing that had been introduced through witnesses only in the dependency and
neglect hearing. If the evidence introduced in the dependency and neglect hearing was
properly admitted in the parental termination hearing, Mother poses an alternative argument.
Mother claims that the trial court erred in overruling her objections to the admission of the
following exhibits introduced during the dependency and neglect hearing: the results from
two drug screens; Gab‟iel‟s medical records from the hospital; a DNA test establishing
paternity; the findings and recommendations of the juvenile court magistrate relating to the
dependency and neglect of Envy and Gab‟iel; and the findings and recommendations of the
juvenile court magistrate relating to the dependency and neglect of Mother‟s other children.
Finally, Mother argues that the trial court erred in admitting an order terminating her parental
rights to two other children, which was first introduced in the parental termination hearing.
The admission or exclusion of evidence is within the trial court‟s discretion. In re
Melanie T., 352 S.W.3d 687, 698 (Tenn. Ct. App. 2011); White v. Vanderbilt Univ., 21
S.W.3d 215, 222 (Tenn. Ct. App. 1999) (citing Seffernick v. Saint Thomas Hosp., 969 S.W.2d
391, 393 (Tenn.1998); Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.
1992)). Although the discretionary nature of the decision does not shield it completely from
appellate review, it does result in less rigorous appellate scrutiny. White, 21 S.W.3d at 222
(citations omitted). When the trial court‟s discretionary decision involves a choice among
acceptable alternatives, the appellate court may not second-guess the trial court‟s exercise of
its discretion merely because “the trial court chose an alternative the appellate courts would
not have chosen.” Id. at 223 (citing Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn.
Ct. App. 1999)).
1. Evidence from Dependency and Neglect Hearing
Mother argues that the trial court erred when it admitted evidence, specifically
exhibits, previously introduced in the dependency and neglect hearing. DCS asked that the
exhibits related to the claims of severe abuse introduced in the dependency and neglect
8
proceeding be deemed admitted in the parental termination proceeding. Mother claims that
she timely objected to this request and that admission of the evidence prejudiced her.
Rule 36(a) of the Tennessee Rules of Appellate Procedure provides, in pertinent part,
as follows: “Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.” Tenn. R. App. P. 36(a). The Advisory
Committee comments explain that the rule “is a statement of the accepted principle that a
party is not entitled to relief if the party invited error, waived an error, or failed to take
whatever steps were reasonably available to cure an error.” Id. cmt. The accepted principle
referenced by the comment finds expression, in part, through the contemporary objection
rule, which
is an elementary principle of trial practice. Parties who desire to object to the
admission of evidence must make their objection in a timely manner and must
state the specific basis for their objection. Parties cannot obtain relief on
appeal from an alleged error they could have prevented. Therefore, failing to
make an appropriate and timely objection to the admission of evidence in the
trial court prevents a litigant from challenging the admission of the evidence
on appeal.
Levine v. March, 266 S.W.3d 426, 440 (Tenn. Ct. App. 2007) (citations omitted).
During the course of the dependency and neglect proceeding, DCS‟s realization that
the two hearings were not consolidated resulted in a proposal to the trial court. DCS
proposed “that the exhibits towards the severe abuse could be used on both cases.” That
way, DCS reasoned, it would be unnecessary for us “to go get another certified copy of the
medical records and other certified copies of those initial orders.” The court asked counsel if
the request had been discussed, and counsel for Mother responded, “Yes. We are not
opposing it.”
Later, after making its findings and conclusions on the appeal of the dependency and
neglect proceeding, the trial court inquired about the proof that would be offered during the
parental termination hearing. Counsel for DCS responded with the following:
[DCS ATTORNEY 2]: We are going to strike the ground of substantial
noncompliance for efficiency‟s sake, and we would just ask that the
severe abuse proof will be our proof for this severe abuse of the TPR.
THE COURT: So you are not going to put on any further proof?
[DCS ATTORNEY 2]: No. We are not going to put on further proof
9
on the severe abuse. So we would only be putting on brief proof about
mother‟s failure to provide financial support and then very little proof
on the father. Grounds for the father, which are abandonment by
failure to visit or provide support and failure to legitimate and
substantial noncompliance -- and best interest. I‟m sorry, Your Honor.
And best interest of the children.
THE COURT: Okay. [Mother‟s attorney], do you propose to put on any
proof on the termination issue?
[MOTHER‟S ATTORNEY]: Again, so I‟m understanding, so we are
going forward on the termination as to no financial support. And what
is the other ground?
[DCS ATTORNEY 2]: Severe abuse.
[DCS ATTORNEY 1]: Severe abuse.
[DCS ATTORNEY 2]: Because we have already put that on, so we
won‟t be putting on any more proof to severe abuse. . . .
[MOTHER‟S ATTORNEY]: Then the question to me was what proof
am I putting on?
THE COURT: Do you propose to put on any proof on that?
[MOTHER‟S ATTORNEY]: I will, yes.
At the conclusion of the proof on the parental termination hearing and after closing
arguments, the trial court took a short recess to review notes taken during the hearing before
making its ruling. The trial court made its findings of fact and ruled from the bench that
Mother‟s and Father‟s parental rights should be terminated. Following the court‟s ruling,
counsel for DCS brought up a question dealing with the orders to be entered in both
proceedings and the numbering of the exhibits. Counsel for DCS reiterated that they were
relying on the exhibits presented in the dependency and neglect hearing for proof of severe
abuse for purposes of the termination hearing. At this point, counsel for Mother objected to
the entry of and reliance upon exhibits from the dependency and neglect hearing for purposes
of the hearing on termination of parental rights. The trial court overruled the objection.
Under these circumstances, we conclude that Mother failed to timely object to the
admission of the exhibits from the dependency and neglect hearing in the parental
10
termination proceeding. Counsel for Mother initially expressed his agreement that the
exhibits from the dependency and neglect would be admitted in the parental termination
hearing. Any doubt concerning what that agreement entailed should have been dispelled
when counsel for DCS made its announcement that it intended to put on no further proof
regarding severe abuse but was still proceeding on the ground of severe abuse for terminating
Mother‟s parental rights. At that point, counsel for Mother should have objected but failed to
do so. Accordingly, we deem the issue waived.
2. Mother‟s Drug Screens
We next consider Mother‟s objections unique to specific exhibits admitted by the trial
court. In the de novo hearing on the petition to declare Envy and Gab‟iel dependent and
neglected, the DCS investigator testified about administering a urine drug test to Mother. In
conjunction with her testimony, the attorney for DCS moved to enter into evidence drug
screen result forms. Mother‟s attorney objected based on a failure to establish a chain of
custody.3
Before evidence may be admitted, the authenticity or identity of the evidence must be
established. Tenn. R. Evid. 901(a). The Rules of Evidence provide that this prerequisite to
admissibility may be satisfied by evidence “that the matter in question is what its proponent
claims.” Id. If a witness is unable to identify the evidence, an unbroken chain of custody
must be established. State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000). The chain of custody
requirement “„demonstrate[s] that there has been no tampering, loss, substitution, or mistake
with respect to the evidence.‟” Id. (quoting State v. Braden, 867 S.W.2d 750, 759 (Tenn.
Crim. App. 1993)). In the case of specimens or samples, it is often impossible to establish
the exhibit through a single witness because “[s]everal persons have usually handled the
specimen before its analysis.” Ritter v. State, 462 S.W.2d 247, 249 (Tenn. Crim. App. 1970)
(citing 21 A.L.R. 2d 1216; 29 Am. Jur. 2d Evid. § 830; 32 C.J.S. Evid. § 588(2)). Therefore,
“all persons who handle the specimen should be ready to identify it and testify to its custody
and unchanged condition.” Id. Whether a satisfactory chain of custody has been established
is “a matter committed to the discretion of the trial judge and [t]his determination will not be
overturned in the absence of a clearly mistaken exercise thereof.” Id.; see Woods v. Metro.
Gov’t of Nashville & Davidson Cty., No. M2001-03143-COA-R3-CV, 2003 WL 22938947,
at *3 (Tenn. Ct. App. Dec.10, 2003).
The DCS investigator testified that in drug-exposed infant cases she is required to
conduct a drug screen. A urine drug screen is the first drug screen that is usually performed,
and in most instances, DCS conducts the drug screen. As noted above, after obtaining a
signature authorizing the drug screen, the donor is provided a drug test cup. The drug test
3
Mother also objected on the basis of hearsay. However, on appeal her argument is based solely on
chain of custody.
11
cup is packaged in sealed plastic. According to the testimony, the DCS worker removes the
cup from the plastic packaging in the presence of the donor and then examines the cup to
confirm that there is nothing in or on the cup. The donor is then handed the cup and
requested to provide a urine sample.
The DCS investigator described the process after the sample is supplied as similar to a
home pregnancy test. Basically, the drug test cup integrates the sample collection and drug
test in a single device. From lines that either appear or do not appear on the drug test cup, the
tester and donor are able to see whether the urine sample is positive for certain drugs. A
control line appears for each drug that can be detected by the drug screen. If the test is
negative for a particular drug, a line will appear opposite the control line. If the test is
positive, no line will be present. If the test is faulty, the control line will not appear.
Once the results are visible on the drug test cup, the DCS employee documents the
results on the drug screen form, and the donor taking the drug screen signs the form. The
drug screen form is kept as part of the case file for that client. In this case, the first urine
drug test as reflected on the result form signed by Mother showed positive for THC, a
marijuana metabolite. Mother‟s second urine drug test as reflected on the result form showed
positive for THC, barbiturates, and benzodiazepines.
Here, we find Mother‟s objection based on chain of custody to be misplaced. The
witnesses offered by DCS identified the drug screen result forms entered into evidence.
Mother signed both forms in the presence of each witness, and the witnesses who testified
recorded the results shown on the drug test cups. Therefore, the trial court did not abuse its
discretion in admitting the drug screen results over Mother‟s chain of custody objection.
3. Gab‟iel‟s Medical Records
In the de novo hearing on the petition to declare Envy and Gab‟iel dependent and
neglected, DCS moved to admit Gab‟iel‟s medical records, which were obtained through a
subpoena duces tecum. See Tenn. Code Ann. § 68-11-406(a) (2013). The medical records
included the results of both a urine drug screen, which was positive for methamphetamines
and marijuana, and an umbilical cord blood drug screen, which was positive for
benzodiazepine and marijuana. On appeal, Mother asserts that the admission of Gab‟iel‟s
medical records was error.
From our review of the record, Mother failed to object to the entry of Gab‟iel‟s
medical records. As stated above, failure to make a timely, specific objection in the trial
court prevents a litigant from challenging the introduction of inadmissible evidence for the
first time on appeal. See, e.g., Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App.
2000). Therefore, we consider this issue waived.
12
4. DNA Test
Mother does not explain why the admission of the DNA test was prejudicial, and we
fail to see how Mother was prejudiced by the admission of the test. The identity of the
children‟s father had no bearing on the grounds for terminating Mother‟s parental rights and
was not considered in the trial court‟s best interest determination. Consequently, we
conclude that the admission of the DNA test establishing paternity of the children, if error,
was harmless in this instance. See Tenn. R. App. P. 36(b).
5. Prior Juvenile Court Proceeding Relating to Mother‟s Other Children
Mother argues that the trial court erred in admitting documents from a prior juvenile
court proceeding into evidence. The DCS investigator testified about the prior juvenile court
proceeding during the dependency and neglect hearing. Specifically, when she received the
report alleging that Envy was drug-exposed, the DCS investigator testified that she looked to
see if Mother had a history with DCS. Upon researching Mother‟s history, the DCS
investigator discovered a prior petition to adjudicate Mother‟s seven older children
dependent and neglected based upon alleged environmental neglect and a drug-exposed
infant and a juvenile court order on the petition finding the child dependent and neglected.
Mother‟s attorney objected to the testimony and entry of the documents from the prior
dependency and neglect proceeding based upon relevance. Mother‟s attorney also argued
that the evidence in question was hearsay. In response, DCS argued that the DCS employees
check parent histories in such cases because the parent‟s history can determine how the DCS
employee will approach the parent. In other words, the approach may be different when it is
a first report as opposed to the fifth or sixth interaction with the parent. The trial court
overruled Mother‟s objections.
Our Rules of Evidence define “relevant evidence” as “evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.
But, even if relevant, evidence may still “be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. In balancing the evidence‟s probative value against its
potential prejudicial effect, the balance tips in favor of admitting the evidence.
[W]e have observed that the plain language of the rules “strongly suggests”
that when the balance between the evidence‟s probative value and any
prejudicial effect is close, the evidence should be admitted. Therefore,
excluding relevant evidence under Rule 403 “is an extraordinary step that
should be used sparingly.”
13
Goodale v. Langenberg, 243 S.W.3d 575, 587 (Tenn. Ct. App. 2007) (internal citations
omitted).
We conclude that the trial court did not abuse its discretion by admitting the evidence
in question. We find the evidence relevant in that it explained how and why the DCS
investigator took the steps she did when contacting Mother. We also conclude that the
documents in question, as offered, are not hearsay. “„Hearsay‟ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Tenn. R. Evid. 801(c) (emphasis added). Here, DCS
introduced the evidence to show why the DCS investigator handled the situation with regard
to Envy and Gab‟iel in the manner she did. Therefore, by definition, the evidence as it was
offered at the hearing was not hearsay.
6. Chancery Court Order Regarding Mother‟s Other Children
Mother also argues that the trial court erred in admitting a chancery court order
terminating her parental rights to two of her older children. Mother‟s attorney states that he
objected to the admission of the order and that such admission was “greatly prejudicial” to
Mother. DCS argues that the error, if any, was harmless because the order was only
introduced to show that Mother knew that using drugs while pregnant could harm her child
and that there was other evidence presented of this fact.
At the hearing on the parental rights termination, the DCS family service worker who
was assigned to Mother‟s case testified. Among other things, she testified that Mother‟s
parental rights had been previously terminated to two of her other children. When DCS
moved to admit the order terminating her rights into evidence, Mother‟s attorney objected on
the following basis:
Your Honor, I would object to that document even coming into discussion. It
appears to be a document over two of the other children that are not before us.
It appears to be an Order about a court and my understanding is that case is
presently being appealed as we speak. And I would like to object to that being
entered in.
A lengthy discussion then ensued among Mother‟s attorney, the DCS attorney, the Guardian
ad Litem, and the trial court over whether the order terminating parental rights had been
appealed. The chancery court entered the order on July 8, 2014, and the time for appeal had
clearly expired. Ultimately, the trial court overruled the objection to the admission of the
order.
14
Mother argues on appeal that the “other matters were improperly before the court,”
“Mother‟s attorney was never given any of the records as it related to the chancery court
matter,” and “Mother was greatly prejudiced.” However, the only argument presented at the
trial court was that the order should not be admitted because it was not a final order.
We only address the specific objection Mother raised at trial. A party may not
challenge the introduction of inadmissible evidence on a different basis than that raised at
trial. Tenn. R. Evid. 103(a)(1); see also Welch v. Bd. of Prof’l Resp. for the Supreme Court
of Tenn., 193 S.W.3d 457, 464 (Tenn. 2006). The rationale for such a rule is to prevent
“sandbagging” by the objecting party. As our supreme court explained,
[a]ny other rule would result in setting a trap for the other side of the
controversy. When objection is made to evidence, and specified, this
notification may enable opposing counsel to obviate it, and thus make the
evidence competent, but, if the party making an erroneous objection should be
allowed to withhold a good objection and make that in the appellate court,
where there can be no possibility of avoiding the difficulty by other evidence,
this would give a very great advantage to the party so withholding his real
objection, and result in corresponding disadvantage and injustice to the
opposing litigant.
Middle Tennessee R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20, 24 (1916).
Consequently, any objection to admission of the chancery court order raised for the first time
on appeal cannot be considered in the absence of plain error affecting substantial rights. See
Tenn. R. Evid. 103(d).
As stated above, the admission or exclusion of evidence is within the trial court‟s
discretion. In re Melanie T., 352 S.W.3d at 698; White, 21 S.W.3d at 222; Otis, 850 S.W.2d
at 442. By all appearances, any appeal from the chancery court order would have been time-
barred at the time of the hearing. Mother certainly had the opportunity to show that an appeal
was pending but failed to do so. Therefore, we find no abuse of discretion on the part of the
trial court in admitting the order terminating Mother‟s parental rights to two of her other
children.
C. GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
To terminate parental rights, a court must determine by clear and convincing evidence
the existence of a statutory ground for termination and that termination is in the best interest
of the child. Tenn. Code Ann. § 36-1-113(c) (Supp. 2015); In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002). This heightened burden of proof is one of the safeguards required by the
fundamental rights involved. See Santosky, 455 U.S. at 769. The heightened burden serves
“to minimize the possibility of erroneous decisions that result in an unwarranted termination
15
of or interference with these rights.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, and eliminates any serious or substantial doubt about the
correctness of these factual findings.” Id. at 596 (citations omitted). Unlike the
preponderance of the evidence standard, “[e]vidence satisfying the clear and convincing
evidence standard establishes that the truth of the facts asserted is highly probable.” In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
On appeal, we review the trial court‟s findings of fact de novo on the record and
accord these findings a presumption of correctness unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303
S.W.3d at 246. In termination proceedings, “the reviewing court must then make its own
determination regarding whether the facts, either as found by the trial court or as supported
by a preponderance of the evidence, provide clear and convincing evidence that supports all
the elements of the termination claim.” In re Bernard T., 319 S.W.3d at 596-97. We review
the trial court‟s conclusions of law de novo with no presumption of correctness. In re J.C.D.,
254 S.W.3d 432, 439 (Tenn. Ct. App. 2007); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.
1993). We “review the trial court‟s findings as to each ground for termination and as to
whether termination is in the child‟s best interests, regardless of whether the parent
challenges these findings on appeal.” In re Carrington H., 483 S.W.3d 507, 525 (Tenn.
2016), petition for cert. filed sub. nom, Vanessa G. v. Tenn. Dep’t of Children’s Servs., (U.S.
Apr. 22, 2016) (No. 15-1317).
The trial court found two grounds supported the termination of Mother‟s parental
rights: (1) severe child abuse against Gab‟iel; and (2) abandonment by willful failure to
support or make reasonable payments toward the support of the children. On appeal, Mother
argues that the evidence was not clear and convincing to support these grounds.
1. Severe Abuse
In its petition to terminate parental rights, DCS alleged that Mother‟s parental rights
should be terminated because Gab‟iel was a victim of severe abuse. A parent‟s rights may be
terminated if
[t]he parent or guardian has been found to have committed severe child abuse
as defined in § 37-1-102, under any prior order of a court or is found by the
court hearing the petition to terminate parental rights or the petition for
adoption to have committed severe child abuse against the child who is the
subject of the petition or against any sibling or half-sibling of such child, or
any other child residing temporarily or permanently in the home of such parent
or guardian . . . .
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Tenn. Code Ann. § 36-1-113(g)(4). Under this ground for termination of parental rights, a
finding of severe abuse against one child can be the basis for terminating parental rights to a
sibling, including a half-sibling. Therefore, a finding of severe abuse against Gab‟iel could
be a ground for termination as to Envy.
Mother argues that the ground of severe abuse as defined in Tennessee Code
Annotated § 37-1-102(b)(21)(A)(i) (Supp. 2016), was not supported by the record. That
statute states severe abuse is, “The knowing exposure of a child to or the knowing failure to
protect a child from abuse or neglect that is likely to cause serious bodily injury or death and
the knowing use of force on a child that is likely to cause serious bodily injury or death.”
Tenn. Code Ann. § 37-1-102(b)(21)(A)(i). Mother argues there was no evidence that Mother
exposed Gab‟iel to serious bodily injury or death.
Our appellate courts have previously held that a mother‟s ingestion of drugs while
pregnant can be considered severe abuse. See In re Garvin M., No. E2013-02080-COA-R3-
PT, 2014 WL 1887334, at * 5 (Tenn. Ct. App. May 9, 2014); In re Benjamin M., 310 S.W.3d
844, 848 (Tenn. Ct. App. 2009); In re Matter of M.J.J., No. M2004-02759-COA-R3-PT,
2005 WL 873305, at *8 (Tenn. Ct. App. Apr. 14, 2005). Severe abuse can be present even
where the child does not manifest any lasting physical effect from mother‟s use of drugs. In
In the Matter of M.J.J., the mother had used or ingested methamphetamine, hydrocodone,
alcohol, and non-prescribed over-the counter medications. 2005 WL 873305, at *8. When
M.J.J. was born, the child suffered from tremors because of prenatal exposure to drugs. Id.
This Court stated that M.J.J. does not appear to have suffered any lasting results, but
nonetheless, the court concluded that the mother‟s “prenatal drug use constituted severe child
abuse for purposes of parental rights termination.” Id.
We conclude that the facts amply support the trial court‟s finding of severe abuse.
The trial court found Mother tested positive for marijuana, benzodiazepines, and barbiturates.
Gab‟iel‟s drug screens were positive for marijuana, methamphetamines, and
benzodiazepines. Furthermore, the trial court found that shortly after he was born he suffered
from an enlarged heart and a flap of skin covering his airway. Gab‟iel will likely have
lifelong respiratory issues and special needs.
Mother also argues that the trial court did not make sufficiently specific findings of
severe abuse. Mother submits that “the court never stated what particular proof it relied on
when making its ruling as to severe abuse”; “the court never state[d] what drugs it believed to
be in [Gab‟iel‟s] system”; and the court “did not specify what it relied on to form” the belief
that “mother used drugs and used drugs around [Envy].” Under Tennessee Code Annotated
§ 36-1-113(k), in parental termination cases, a court is required to “enter an order that makes
specific findings of fact and conclusions of law within thirty (30) days of the conclusion of
the hearing.” Tenn. Code Ann. § 36-1-113(k) (Supp. 2016) (emphasis added).
17
We conclude that the trial court satisfied the statutory requirements. The trial court
made extensive written findings of fact and conclusions of law. Contrary to Mother‟s
assertions, the trial court made very explicit and detailed findings of fact that support the
finding of severe abuse.
2. Abandonment by Willful Failure to Support
Mother also argues that the evidence was not clear and convincing that Mother
abandoned the children by willfully failing to financially support them. At the parental
termination hearing, DCS presented the testimony of the DCS service worker assigned to
Mother. She testified that Mother made support payments for approximately two months
after Gab‟iel‟s birth but that Mother had not made any payments for the four months leading
up to the filing of the petition to terminate parental rights. On cross-examination, Mother
presented an order from the Juvenile Court on April 7, 2014, stating that Mother was not in
compliance with the permanency plan because she had not gotten a psychological evaluation.
The permanency plan also required Mother to make child support payments. Mother used the
fact that the order was not based upon failure to pay child support to argue that she had
indeed paid child support. However, Mother did not testify and no evidence was presented to
contradict the testimony of the DCS service worker.
The trial court found Mother had abandoned the children through her willful failure to
financially support them. Under the parental termination statutes, “abandonment” is defined
to include “the willful failure to visit, to support, or to make reasonable payments toward the
support of the child during the four-month period preceding the filing of the petition to
terminate parental rights.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013);
see also Tenn. Code Ann. § 36-1-102(1)(A)(i) (Supp. 2016). If abandonment is premised
upon a parent‟s failure to pay support, the failure to support must be willful in order to lead to
termination of parental rights. Tenn. Code Ann. § 36-1-102(1)(A)(i).
“Whether a parent failed to . . . support a child is a question of fact.” In re Adoption of
Angela E., 402 S.W.3d at 640. Whether such failure was willful, however, is a question of
law. Id. (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)). Based upon
our review of the record, we find that the evidence does not preponderate against the trial
court‟s finding that Mother paid no support during the four-month period preceding the filing
of the petition to terminate parental rights. Therefore, our resolution of the issue raised by
Mother on appeal hinges on whether Mother‟s failure to support was willful. Our review of
Mother‟s willfulness in failing to provide support to her children is de novo, with no
presumption of correctness. Id.
“The element of willfulness has been held to be both a statutory and constitutional
requirement.” In re C.T.B., No. M2009-00316-COA-R3-PT, 2009 WL 1939826, at *4
(Tenn. Ct. App. July 6, 2009). We have previously addressed, in some detail, the meaning of
18
the term “willfulness” as it applies to parental termination proceedings:
In the statutes governing the termination of parental rights, “willfulness” does
not require the same standard of culpability as is required by the penal code.
Nor does it require malevolence or ill will. Willful conduct consists of acts or
failures to act that are intentional or voluntary rather than accidental or
inadvertent. Conduct is “willful” if it is the product of free will rather than
coercion. Thus, a person acts “willfully” if he or she is a free agent, knows
what he or she is doing, and intends to do what he or she is doing.
Failure to visit or support a child is “willful” when a person is aware of
his or her duty to visit or support, has the capacity to do so, makes no attempt
to do so, and had no justifiable excuse for not doing so. Failure to visit or
support is not excused by another person‟s conduct unless the conduct actually
prevents the person with the obligation from performing his or her duty, or
amounts to a significant restraint or interference with the parent‟s efforts to
support or develop a relationship with the child . . . .
The willfulness of particular conduct depends upon the actor‟s intent.
Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
peer into a person‟s mind to assess intentions or motivations. Accordingly,
triers-of-fact must infer intent from the circumstantial evidence, including a
person‟s actions or conduct.
In re Audrey S., 182 S.W.3d at 863-64 (internal citations and footnotes omitted). The
financial ability, or capacity, of a parent to pay support must be considered in determining
willfulness. If the failure to pay child support is due to financial inability, then a parent has
not willfully failed to support the child. O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.
Ct. App. 1995), superseded by statute on other grounds, 1995 Tenn. Pub. Acts, ch. 532, as
recognized in In re Swanson, 2 S.W.3d 180, 184 (Tenn. 1999) (citing Pierce v. Bechtold, 60
Tenn. App. 478, 448 S.W.2d 425, 429 (Tenn. Ct. App. 1969)).
DCS presented scant evidence regarding Mother‟s ability to pay support during the
relevant four-month time period. The DCS service worker testified that Mother told her that
she was working for a cleaning business and making $250 a week. Mother provided DCS a
letter that was not notarized stating that fact. Also, Mother told the DCS service worker that
she was working at Williams-Sonoma. However, the DCS service worker testified that
Mother had never given her any paystubs from Williams-Sonoma.
From this proof, we gather little about Mother‟s income. The testimony of the DCS
service worker is the sole evidence as to Mother‟s income and work history. The evidence
presented is seriously lacking in details. For instance, the record does not reveal how many
19
hours Mother worked, either at the cleaning business or at Williams-Sonoma, or when she
was working. In the case of an hourly worker, lack of information concerning the hours
worked prevents the court from considering whether the parent is willfully underemployed,
which would create an inference of willful failure to support. See In re Austin D., No.
E2012-00579-COA-R3-PT, 2013 WL 357605, at *11-12 (Tenn. Ct. App. Jan. 30, 2013)
(finding that mother‟s personal choice not to work contributed to the conclusion that she
willfully failed to pay child support).
Based on this record, we are unable to conclude that Mother had the capacity to
support her children. See In re Audrey S., 182 S.W.3d at 864 (“Failure to . . . support a child
is „willful‟ when a person is aware of his or her duty to . . . support, has the capacity to do so,
makes no attempt to do so, and has no justifiable excuse for not doing so.”). DCS presented
insufficient evidence concerning Mother‟s income during the relevant time period. Given the
heavy burden necessary to interfere with a fundamental constitutional right, the proof offered
here was simply insufficient to show that Mother‟s failure to support her children was
willful.
D. BEST INTEREST OF THE CHILDREN
Having concluded that there was clear and convincing evidence for one ground for
termination of Mother‟s parental rights, we turn to the issue of whether termination is in the
best interests of the children. The focus of the best interest analysis is on what is best for the
child, not what is best for the parent. In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App.
2005). This Court may consider nine, non-exclusive statutory factors in making a best
interest determination. Tenn. Code Ann. § 36-1-113(i) (Supp. 2016).4 Not every factor
4
The relevant statutory factors include:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child‟s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services agencies for
such duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation
or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is
likely to have on the child‟s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult in
the family or household;
20
enumerated in the statute applies to every case because the facts of each case can vary
widely. In re William T.H., No. M2013-00448-COA-R3-PT, 2014 WL 644730, at *4 (Tenn.
Ct. App. Feb. 18, 2014).
We conclude that there was clear and convincing evidence that termination of
Mother‟s parental rights is in the children‟s best interests. Several of the statutory factors
support this conclusion. We are unable to glean from the record if Mother had made an
adjustment of circumstances. She did not present any evidence at the hearing on the petition
to terminate her parental rights. The evidence established that Mother had a history of
unstable housing and drug use. The trial court also found Mother had committed severe
abuse against Gab‟iel by continuing to use marijuana during her pregnancy.
The record reveals that Mother failed to maintain regular contact with Envy and
Gab‟iel. The DCS service worker testified that she initially supervised Mother‟s visitation
with the children. However, after Gab‟iel came into DCS custody because of drug exposure,
Mother began threatening the DCS service worker, as well as other DCS employees. After
December 2013, Mother chose not to participate in visitation with the children. Mother did
interact with the children at court appearances. However, as of the date of the hearing, the
children had not had any meaningful visitation with Mother for seventeen months.
The record further shows that a change of caretakers would adversely impact the
children. Gab‟iel will have lasting respiratory issues, and Foster Mother, as a nurse, stated
that she was capable of continuing his medical care. The children also seemed to have
bonded with the foster parents. The DCS services worker testified that, during visitation, the
children would go to Foster Mother for comfort if injured or upset. For Gab‟iel, who had
been with the foster parents since he was born, the foster parents were the only parents he
had known.
Perhaps most importantly, Foster Mother testified at the hearing that she and her
(7) Whether the physical environment of the parent‟s or guardian‟s
home is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or controlled
substance analogues as may render the parent or guardian consistently
unable to care for the child in a safe and stable manner;
(8) Whether the parent‟s or guardian‟s mental and/or emotional
status would be detrimental to the child or prevent the parent or guardian
from effectively providing safe and stable care and supervision for the child;
or
(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department pursuant to
§ 36-5-101.
Tenn. Code Ann. § 36-1-113(i) (Supp. 2016).
21
husband wanted to adopt the children. At the time this appeal was heard, these children had
spent over two years in foster care, and the foster parents present the best avenue for a
permanent home for these children.
III. CONCLUSION
We conclude that DCS failed to meet its burden of proving that Mother willfully
abandoned her children by failure to financially support them. Nonetheless, the record
contains clear and convincing evidence to support terminating Mother‟s parental rights on the
remaining ground relied on by the trial court and to support the court‟s conclusion that
terminating Mother‟s parental rights is in the children‟s best interest. Therefore, we affirm
the decision to terminate parental rights.
_________________________________
W. NEAL MCBRAYER, JUDGE
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