In Re Brittany M.C. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 16, 2015
IN RE BRITTANY M. C.1
Appeal from the Juvenile Court for Sullivan County (Kingsport)
No. J39903 Hon. Raymond C. Conkin, Jr., Judge
No. E2014-01450-COA-R3-PT-FILED-MARCH 24, 2015
This is a termination of parental rights case in which the Tennessee Department of Children’s
Services filed a petition to terminate Mother’s parental rights to the Child. The trial court
found that clear and convincing evidence existed to support the termination of Mother’s
parental rights on the statutory grounds of abandonment, substantial noncompliance with the
permanency plans, and the persistence of conditions which led to removal. The court further
found that termination of her rights was in the Child’s best interest. Mother appeals. We
affirm the trial court’s termination of Mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.
Daniel J. Cantwell, Kingsport, Tennessee, for the appellant, Mimi L. B.
Herbert Slatery, Attorney General and Reporter, and Jason I. Coleman, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of
Children’s Services.
1
This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
OPINION
I. BACKGROUND
Brittany M. C. (“the Child”) was born to Mimi L. B. (“Mother”) and Michael D. C.
(“Father”) in April 2002. At some point, the Tennessee Department of Children’s Services
(“DCS”) removed the Child from Mother’s care. Father maintained legal custody of the
Child, while Mother was limited to supervised visitation. Unbeknownst to DCS, Mother
lived with Father and the Child for several years until March 28, 2013, when Father
committed suicide. The Child was removed several days later when Mother tested positive
for Benzodiazepines, Oxycodone, opiates, and marijuana. The Child was placed in foster
care. Since that time, Mother passed a drug test. However, the Child was adjudicated as
dependent and neglected on June 12, 2013. Mother maintained visitation with the Child until
July 16, 2013, after which she moved to Indiana to live with relatives.
DCS developed two permanency plans for Mother. These plans, dated April 22, 2013,
and September 23, 2013, were ratified by the trial court. Pursuant to the plans, Mother was
required, in pertinent part, to complete an alcohol and drug assessment and follow all
recommendations, complete a parenting assessment and follow all recommendations, obtain
and maintain suitable housing and legal income, sign a release allowing DCS to monitor her
compliance with probation, follow rules of probation and refrain from incurring additional
charges, dissociate from those with alcohol, drug, or criminal issues, submit to and pass
random drug screens and pill counts of prescribed medication, provide DCS with a list of
current medical providers and notify DCS of visits with said providers, advise medical
providers of her history of addiction, and notify DCS prior to filling non-emergency
prescriptions.
On December 13, 2013, DCS filed a petition to terminate Mother’s parental rights.
DCS alleged termination on the statutory grounds of abandonment for failure to visit, failure
to provide support, and failure to provide a suitable home; substantial noncompliance with
the permanency plans; and the persistence of conditions which led to removal. DCS also
alleged that termination of Mother’s parental rights was in the best interest of the Child.
Mother finally returned to Sullivan County in January 2014.
A hearing was held over the course of two days in April and June 2014. Mother
testified that she had recently returned to Tennessee from Indiana, where she had been living
with relatives for several months. She explained that she left Tennessee in July because she
was forced to leave Father’s residence after he committed suicide. She stated that she did
-2-
not have any family support in Tennessee or a place to live. She admitted that she violated
the conditions of her probation for misdemeanor theft by leaving Tennessee and that she also
failed to inform DCS of her move. She insisted that she maintained contact with DCS and
the Child to the best of her ability. She asserted that she was “just having a difficult time”
after discovering Father’s dead body and that she “needed the support of [her] family.”
Mother admitted that she had not maintained employment since 2007. She stated that
despite her continued unemployment, she was able to support herself financially because she
received benefits and disability income from the Social Security Administration. She
explained that prior to Father’s passing, she spent most of her time with Father caring for the
Child. She acknowledged that she frequently spent time alone with the Child, despite the fact
that she had only been awarded supervised visitation. She asserted that Father asked for her
assistance and believed that she was not a danger to the Child.
Mother acknowledged that she participated in the creation of the initial permanency
plan for the Child and that the court advised her of her responsibility to visit and support the
Child. She conceded that she had not visited the Child or remitted child support while she
lived in Indiana from July 2013 until January 2014. She claimed to have called the Child on
several occasions and that when she returned, she frequently brought food and gifts for the
Child when she visited. She asserted that she was never specifically tasked with remitting
child support and that she contacted the child support office in January 2014 and was advised
that her records did not indicate a support obligation.
Mother acknowledged that she really did not address the concerns in the permanency
plans, e.g., parenting, drug addiction, and housing, until she returned in January 2014, after
the termination petition had been filed. She testified that she completed her parenting
assessment prior to moving to Indiana but that DCS failed to contact her to review the
recommendations. She stated that she recently began working with Frontier Health to
address parenting issues. Relative to drug addiction, she conceded that she failed a drug test
in March 2014. She stated that she completed her alcohol and drug assessment in April 2014
and had received the recommendations from the assessment and a list of meetings. She
asserted that she no longer associated with those who had drug issues. She stated that she
maintained regular appointments with a therapist to address her mental health issues
concerning Father’s suicide. Relative to housing, she testified that she currently lived with
a friend and occasionally stayed with others. She asserted that she found and applied for an
apartment when she returned to Tennessee. She stated that her application could not be
approved until she submitted her birth certificate, which she had not yet found.
Mother asserted that her failure to substantially complete the requirements in the
permanency plans was largely a result of DCS’s failure to assist her. She felt like she was
-3-
left to assist herself, despite the fact that DCS had offered to assist her with housing, alcohol
and drug treatment, and addressing the concerns related to parenting. She explained that she
did not want to receive treatment from Frontier Health and that DCS had merely offered a
list of housing resources in areas that she did not want to live. She claimed that despite the
lack of assistance, she believed that she could be ready to care for the Child very soon. She
asserted that she and the Child enjoyed a “good” and “very loving relationship.” She enjoyed
her visits with the Child and missed spending time with the Child.
Mother testified that the Child suffered from an anxiety disorder, obsessive
compulsive disorder, and had been diagnosed as autistic. She related that in caring for the
Child, she simply tried to calm her down by talking or doing things with her. She conceded
that caring for a child like hers could be pretty stressful. She asserted that despite the stress,
she had succeeded in obtaining a diagnosis for the Child and had secured some resources to
assist in her growth and development prior to DCS’s involvement. She stated that the Child
was initially removed from her care because the Child was acting out at school.
Travis Sherffey testified that he was the case manager assigned to the Child from
April 2013 until January 2014. He related that the Child was removed following Father’s
suicide because Mother tested positive for drugs and was homeless. He claimed that there
were no other relatives at that time that could take the Child. He related that after the Child
came into custody in April 2013, Mother participated in the creation of a permanency plan,
which specifically directed her to contact the child support office. He also advised her
concerning the Criteria and Procedures for Termination of Parental Rights.
Mr. Sherffey stated that Mother maintained contact with him until June 2013 and that
her last supervised visitation with the Child through Frontier Health was on July 16, 2013.
He related that Mother simply did not appear for the next scheduled visitation in August. He
attempted to contact her, but she hung up on him after he identified himself. He advised the
foster parents to cease communication with Mother until she contacted DCS. He related that
Mother finally contacted him in November 2013. Thereafter, she participated in a foster care
review board meeting by telephone, advised him that she would return in a few weeks, and
identified her sister as a possible placement for the Child. He stated that Mother’s sister was
ultimately denied as a placement and that Mother returned to Tennessee in January 2014,
after the termination petition had been filed.
Mr. Sherffey testified that Mother had sporadic telephone contact with the Child but
did not visit the Child or remit child support during the four months preceding the filing of
the termination petition. He related that prior to Mother’s disappearance, he provided her
with a list of housing options and offered to assist her by filling out paperwork, by exploring
community resources to obtain financial assistance, or by making housing deposits, if
-4-
necessary. He related that he was only able to maintain sporadic telephone contact from
April until June 2013 because Mother refused to tell him where she resided. He admitted that
Mother did submit to and pass a random drug screen in June 2013. He claimed that Mother
never told him that she did not want treatment from Frontier Health and that he could have
arranged for treatment through other providers if she had informed him of her preference.
Mr. Sherffey testified that Mother signed a release to allow him to speak with her
probation officer but that she never provided him with a list of her prescription medication,
medical providers, or pharmacies. He stated that she also did not notify him when she
obtained new prescriptions or attended new medical appointments. He conceded that she
completed the parenting assessment in May 2013 but asserted that he was unable to timely
review the recommendations from the assessment before she disappeared. He related that
he finally discussed the recommendations with her in December 2013. He recalled that the
recommendations, in pertinent part, included completing an alcohol and drug assessment;
addressing her mental health issues; and receiving intensive parenting education to address
appropriate developmental expectations, the importance of providing a nurturing and
supportive environment for the Child, counseling, parent/child interaction therapy, and the
need for community support. He stated that he had no knowledge regarding whether she
complied with the recommendations because her case was transferred in January 2014.
Mr. Sherffey testified that the conditions which led to removal still persisted at the
time of the filing of the termination petition as evidenced by Mother’s lack of contact with
the Child, her violation of probation, her lack of residence, and her refusal to address her
alcohol and drug issues. He related that Mother had not demonstrated that she could provide
a suitable home for the Child. He opined that Mother was progressing with the help of DCS
until she left Tennessee and ceased communication.
Mr. Sherffey testified that he had visited the Child’s foster home. He related that
there were issues in the home related to the Child’s unique needs but that the Child had
slowly adjusted and obtained stability. He believed that removing the Child from the home
would be detrimental to the Child, who expressed a desire to remain in her foster home. He
stated that the foster parents had recently expressed a desire to adopt the Child.
Rebecca Campbell testified that she was assigned to the Child’s case from January
2014 until May 2014. She stated that Mother had still not disclosed an address. She believed
that the most important requirements in the permanency plan were to address Mother’s
mental health and alcohol and drug issues. She acknowledged that Mother had completed
her alcohol and drug assessment, her parenting assessment, and a mental health evaluation.
She stated that she never received proof that Mother was attending and participating in
therapy and that Mother did not complete the alcohol and drug assessment until after the
-5-
termination petition had been filed. She recalled administering a drug test in June 2013 that
was negative, another in March 2014 that revealed positive results for marijuana, Subutex,
and Oxycodone, and a third in April 2014 that was negative. She claimed that Mother never
submitted a prescription to explain the positive results. She asserted that Mother had also not
received drug treatment.
Ms. Campbell testified that Mother failed to submit proof of income. She asserted
that she advised Mother concerning her responsibility to remit child support and the
consequences for failure to remit child support. She recalled that Mother expressed a desire
to find employment but that Mother never applied for a job or asked for assistance in finding
employment. She acknowledged that Mother brought food for the Child during visitation.
Brenda Greer testified that she was assigned to the Child’s case in May 2014. She
stated that she did not have a valid address for Mother and that she had attempted to contact
Mother to no avail until Mother contacted her on the morning of the hearing. She stated that
she was currently attempting to schedule intensive outpatient alcohol and drug treatment for
Mother. She recalled that Mother had not attended the last visitation with the Child because
Mother was sick.
Stacy Guinn testified that she was employed as a case manager for Frontier Health.
She was assigned to the Child’s case in April 2013 and since that time, had supervised the
Child’s visits with Mother and worked with the foster parents. She also worked with the
Child on an individual basis each week. She recalled that Mother did not visit the Child from
July 2013 until January 2014. She explained that Mother’s absence had a “huge impact” on
the Child because of the Child’s special needs. She acknowledged that Mother maintained
telephone contact with the Child from November 2013 but that the Child expressed anxiety
and confusion during the conversations.
Ms. Guinn testified that the Child had improved, largely as a result of her environment
in the foster home and at school. She believed that the Child was doing well in the foster
home and was receiving stability. She claimed that Mother had difficulty applying a set
schedule in a two-hour visit and that Mother could not recall skills she had learned minutes
prior to their needed implementation. She did not believe that Mother was able to parent the
Child. She related that Mother needed to obtain stable housing and income and to learn how
to apply the learned parenting skills before the Child could be returned to Mother’s care.
Denise Johnson testified that she was employed by Kingsport City Schools as a
Special Education Teacher. She related that she taught the Child during the 2013-2014
school year. She claimed that her curriculum focused on teaching functional academics,
which would allow special needs children to grow into a functioning adult. She believed that
-6-
the Child was capable of achieving self-sufficiency as a functioning adult. She related that
parental involvement was very important for special needs children like the Child because
the children needed to implement the skills learned in the classroom. She recalled that
Mother was present for each of the Child’s individual education program meetings and that
the foster parents were very involved in the Child’s day-to-day education. She asserted that
the Child needed constant supervision and had consistently improved as a result of a very
scheduled, project-oriented curriculum. She recalled that the Child expressed a desire to
remain in the foster home.
Ms. Campbell stated that the Child currently received therapy and attended weekly
appointments with a behavioralist. She related that the child was “doing wonderful” in the
foster home and seemed “very happy” and “very comfortable there.” She stated that the
Child had an established routine and that the foster parents were providing for the Child’s
needs. In contrast, she observed one visitation between Mother and the Child that revealed
Mother playing with the Child as a peer would play with her best friend.
On the second hearing date in June 2014, Mother still had not obtained her birth
certificate to secure housing and had not secured an alcohol and drug counselor to obtain
treatment. She had attended several individual counseling sessions to address her mental
health. She stated that she contacted DCS the morning of the hearing to arrange for alcohol
and drug treatment through her therapist but that Ms. Campbell had not contacted the
therapist yet. She claimed that she regularly brought the Child clothes, food, and toys during
visitation and that she was willing to implement Ms. Guinn’s suggestions in future visits.
She denied that DCS assisted her in obtaining housing, other than by providing her with a list
of apartments. She believed that she could be ready to provide a home for the Child within
a month. She did not believe it was in the Child’s best interest to remain in the foster home.
She acknowledged that she had plenty of time to complete the requirements in the
permanency plans but requested more time because she needed the Child.
Following the presentation of the above evidence, the trial court terminated Mother’s
parental rights on the statutory grounds of abandonment for failure to visit, failure to provide
support, and failure to provide a suitable home; substantial noncompliance with the
permanency plans; and the persistence of conditions which led to removal. The court
likewise found that termination of Mother’s parental rights was in the best interest of the
Child. This timely appeal followed.
-7-
II. ISSUES
We consolidate and restate the issues raised on appeal by Mother as follows:
A. Whether clear and convincing evidence supports the court’s termination of
Mother’s parental rights based upon the statutory ground of abandonment for
failure to visit and remit child support pursuant to Tennessee Code Annotated
section 36-1-102(1)(D), (E).
B. Whether clear and convincing evidence supports the court’s termination of
Mother’s parental rights based upon the statutory ground of abandonment for
failure to provide a suitable home pursuant to Tennessee Code Annotated
section 36-1-102(1)(A)(ii).
C. Whether clear and convincing evidence supports the court’s termination of
Mother’s parental rights based upon her failure to comply with the
requirements of the permanency plan pursuant to Tennessee Code Annotated
section 36-1-113(g)(2).
D. Whether clear and convincing evidence supports the court’s termination of
Mother’s parental rights based upon the persistence of the conditions which
led to removal pursuant to Tennessee Code Annotated section 36-1-113(g)(3).
E. Whether clear and convincing evidence supports the court’s finding of
reasonable efforts by DCS pursuant to Tennessee Code Annotated section 37-
1-166(g)(1).
F. Whether clear and convincing evidence supports the trial court’s finding
that termination of Mother’s parental rights was in the Child’s best interest
pursuant to Tennessee Code Annotated section 36-1-113(i).
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
-8-
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).
While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon
(1) [a] finding by the court by clear and convincing evidence that the grounds
for termination of parental or guardianship rights have been established; and
(2) [t]hat termination of the parent’s or guardian’s rights is in the best interest
[] of the child.
Tenn. Code Ann. § 36-1-113©. “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The existence of at least one statutory basis for termination of parental rights will support the
trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct.
App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.
2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This
evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:
-9-
A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
under [Tennessee Code Annotated section] 36-1-113, 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. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
Appellate courts conduct a de novo review of the trial court’s decisions
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re
Adoption of A.M.H., 215 S.W.3d at 809.
In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010) (emphasis added).
IV. DISCUSSION
A.
In terminating Mother’s parental rights based upon the statutory ground of
abandonment, the court considered Mother’s failure to remit support and failure to visit for
the four months preceding December 13, 2013, the filing date of the termination petition.
Thus, the relevant time period was August 12, 2013 to December 12, 2013.2 Tenn. Code
Ann. § 36-1-102(1)(A)(I). A parent’s willful failure to support the child “means the willful
failure, for a period of four (4) consecutive months, to provide monetary support or the
willful failure to provide more than token payments toward the support of the child.” Tenn.
Code Ann. § 36-1-102(1)(D). Token support is defined as “support, under the circumstances
of the individual case, [that] is insignificant given the parent’s means.” Tenn. Code Ann. §
36-1-102(1)(B). A parent’s willful failure to visit the child “means the willful failure, for a
period of four (4) consecutive months, to visit or engage in more than token visitation.”
Tenn. Code Ann. § 36-1-102(1)(E). Token visitation is defined as “visitation, under the
circumstances of the individual case, [that] constitutes nothing more than perfunctory
2
“The applicable four month window . . . includes the four months preceding the day the petition to terminate
parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-00587-COA-
R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb.20, 2014).
-10-
visitation or visitation of such an infrequent nature or of such short duration as to merely
establish minimal or insubstantial contact with the child.” Tenn. Code Ann. § 36-1-
102(1)(C).
This court has consistently held that the term willfulness as it applies to a party’s
failure to support or failure to visit must contain the element of intent. In re Swanson, 2
S.W.3d 180, 188-89 (Tenn. 1999). The element of intent utilized in termination proceedings
“does not require the same standard of culpability as is required by the penal code.” Audrey
S., 182 S.W.3d at 863. “Willful conduct consists of acts or failures to act that are intentional
or voluntary rather than accidental or inadvertent.” Id. “[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.”
Id. at 863-64. Additionally, “‘[f]ailure to support a child is ‘willful’ when a person is aware
of his or her duty to support, has the capacity to provide the support, makes no attempt to
provide the support, and has no justifiable excuse for not providing the support.’” In re
M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005) (quoting In re Adoption of T.A.M., No.
M2003-02247-COA-R3-PT, 2004 WL 1085228, at *4 (Tenn. Ct. App. May 12, 2004)).
1.
Mother concedes that she failed to remit child support during the relevant time period
but asserts that her failure to remit support was not willful. She argues that she was never
subject to a court order to remit child support. DCS responds that Mother never provided
support for the Child even though she reportedly received income from the Social Security
Administration. DCS asserts that Mother was advised of her child support obligation.
“A parent’s obligation to support his or her child exists regardless of a court order
requiring the parent to pay support.” In re Jacobe M.J., 434 S.W.3d 565, 572 (Tenn. Ct.
App. 2013) (citing Tenn. Code Ann. § 36-1-102(1)(H)). Furthermore, “[e]very parent who
is eighteen (18) years of age or older is presumed to have knowledge of a parent’s legal
obligation to support such parent’s child or children.” Id. Here, Mother was specifically
advised of her duty to remit child support and of the consequences for her failure to comply.
This was not a case where a parent had numerous expenses or extenuating circumstances but
faithfully provided support when he or she was able. See In re Dylan H., No. E2010-01953-
COA-R3-PT, 2011 WL 6310465, at *7 (Tenn. Ct. App. Dec. 16, 2011) (reversing the trial
court’s termination decision because mother was simply unable to fulfill her child support
obligation during the relevant time period). Even though Mother received income from the
Social Security Administration, she failed to remit any form of support for the Child during
the relevant time period. Additionally, she only inquired with the child support office after
the termination petition had been filed. With these considerations in mind, we conclude that
there was clear and convincing evidence to establish that Mother abandoned the Child by
-11-
willfully failing to remit child support before, during, and after the relevant time period and
that a statutory ground existed for termination of Mother’s parental rights.
2.
Mother concedes that she failed to regularly visit the Child during the relevant time
period but asserts that her failure to visit was not willful as a result of her personal
circumstances relating to Father’s suicide. She claims that she moved to Indiana to receive
the family support that she could not find in Tennessee. DCS responds that Mother did not
visit the Child from July 2013 until January 2014 and failed to present a justifiable excuse
for her failure to visit.
The Supreme Court has held that “a parent who attempted to visit and maintain
relations with his child, but was thwarted by the acts of others and circumstances beyond his
control, did not willfully abandon his child.” A.M.H., 215 S.W.3d at 810 (citing Swanson,
2 S.W.3d at 189). However, “[a] parent’s failure to visit may be excused by the acts of
another only if those acts actually prevent the parent from visiting the child or constitute a
significant restraint or interference with the parent’s attempts to visit the child.” In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009) (citation omitted). In A.M.H., the Court was
“presented with a situation in which the parents of [the child] actively pursued legal
proceedings to regain custody [ ] during the ‘abandonment’ period but failed to visit for a
period of four consecutive months immediately prior to the filing of a petition for termination
of parental rights.” 215 S.W.3d at 810. Unlike the situation presented in A.M.H., Mother did
not request assistance or maintain communication with DCS after she last visited the Child
on July 16, 2013. From that time until January 2014, Mother maintained sporadic telephone
contact and failed to physically visit the Child for approximately five and a half months.
While we acknowledge Mother’s traumatic experience, Mother simply disappeared and
ignored her parental obligations. The Child experienced anxiety and confusion as a result
of Mother’s long-term absence and abrupt return. With these considerations in mind, we
conclude that there was clear and convincing evidence to establish that Mother willfully
failed to visit the Child during the relevant time period. Thus, a second statutory ground
existed for termination of Mother’s parental rights.
B.
Mother asserts that the trial court erred in relying upon the statutory ground of
abandonment for failure to provide a suitable home when DCS failed to assist her in her
efforts. DCS responds that Mother disappeared and refused its offers of assistance.
-12-
A parent may be found to have abandoned his or her child by failing to establish a
suitable home. The relevant abandonment statutory provision provides, in pertinent part,
The child has been removed from the home of the [parents] as the result of a
petition filed in the juvenile court in which the child was found to be a
dependent and neglected child [], and the child was placed in the custody of
the department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition is filed
finds, that the department or licensed child-placing agency made reasonable
efforts to prevent removal of the child or that the circumstances of the child’s
situation prevented reasonable efforts from being made prior to the child’s
removal; and for a period of four (4) months following the removal, the
department or agency has made reasonable efforts to assist the [parents] to
establish a suitable home for the child, but that the [parents] have made no
reasonable efforts to provide a suitable home and have demonstrated a lack of
concern for the child to such a degree that it appears unlikely that they will be
able to provide a suitable home for the child at an early date. The efforts of the
department or agency to assist a [parent] in establishing a suitable home for the
child may be found to be reasonable if such efforts exceed the efforts of the
[parent] toward the same goal, when the [parent] is aware that the child is in
the custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii) (emphasis added). Termination for failure to provide
a suitable home requires a finding, supported by clear and convincing evidence, that a parent
failed to provide a suitable home for his or her child even after DCS assisted that parent in
his or her attempt to establish a suitable home. Tenn. Code Ann. § 36-1-102(1)(A)(ii); In re
Kaliyah S., — S.W.3d —, No. E2013-01352-SC-R11-PT, 2015 WL 273659, at *18, n. 32
(Tenn. Jan. 22, 2015) (“[P]roof of reasonable efforts is required to prove the ground of
abandonment by failure to provide a suitable home.”). See generally In re R.L.F., 278
S.W.3d 305, 315-16 (Tenn. Ct. App. 2008) (providing that DCS must submit clear and
convincing evidence to establish that it expended reasonable efforts in assisting the parent
when a termination ground based upon DCS’s efforts is implicated). DCS is required to use
its “superior insight and training to assist parents with the problems DCS has identified in
the permanency plan, whether the parents ask for assistance or not.” State, Dep’t of
Children’s Servs. v. Estes, 284 S.W.3d 790, 801 (Tenn. Ct. App. 2008).
The efforts of DCS were frustrated by Mother’s continued absence and refusal to
maintain communication with DCS. Mother specifically testified that she did not want to
live in the areas DCS suggested. Her failure to properly address her living situation
demonstrates a lack of concern for the welfare of the Child such that it was unlikely that the
-13-
conditions would be remedied at an early date. Mother still had not procured her birth
certificate to secure housing before the second hearing in June 2014. Mother blames her
inability to procure housing on the fact that the Child’s case was transferred through several
different case managers. What Mother fails to realize is that Mr. Sherffey was the case
manager for the Child from the time of removal until the termination petition was filed. He
testified that Mother refused his offers of assistance and even hung up on him when he
attempted to contact her in Indiana. With these considerations in mind, we conclude that the
record contains clear and convincing evidence that DCS made reasonable efforts to assist
Mother and that the evidence does not preponderate against the court’s finding that a third
statutory ground existed for termination of her parental rights based upon her inability to
provide a suitable home.
C.
Mother contends that the trial court erred in finding a ground of termination based
upon her substantial noncompliance with the permanency plans. Mother alleges that she
substantially complied with the requirements as evidenced by her completion of the parenting
assessment and the alcohol and drug assessment. She asserts that she also submitted to drug
screening and was receiving counseling. DCS responds that the requirements contained in
the permanency plans were reasonable and that while Mother completed some of the
requirements, she was in substantial noncompliance as evidenced by her violation of
probation, her failed drug screen, her failure to follow the recommendations of the alcohol
and drug assessment, and her failure to provide a suitable home.
Tennessee law requires the development of a plan of care for each foster child and
further requires that the plan include parental responsibilities that are reasonably related to
the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of parental
rights exists when a petitioner proves by clear and convincing evidence that “[t]here has been
substantial noncompliance by the parent or guardian with the statement of responsibilities
in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2). To establish noncompliance, the
trial court must initially find “that the requirements of the permanency plans are reasonable
and related to remedying the conditions that caused the child to be removed from the parent’s
custody in the first place.” In re M.J.B., 140 S.W.3d at 656; see In re Valentine, 79 S.W.3d
at 547. When the trial court does not make such findings, the appellate court should review
the issue de novo. In re Valentine, 79 S.W.3d at 547. Second, the court must find that the
parent’s noncompliance is substantial, In re M.J.B., 140 S.W.3d at 656, meaning that the
parent must be in “noncompliance with requirements in a permanency plan that are
reasonable and related to remedying the conditions that warranted removing the child from
the parent’s custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at
*12 (Tenn. Ct. App. June 3, 2003). To assess a parent’s substantial noncompliance with a
-14-
permanency plan, the court must weigh “both the degree of noncompliance and the weight
assigned to that particular requirement.” In re Z.J.S., 2003 WL 21266854, at *12.
Conversely, “[t]erms which are not reasonable and related are irrelevant, and substantial
noncompliance with such terms is irrelevant.” In re Valentine, 79 S.W.3d at 548-49.
Here, Mother was required, in pertinent part, to complete an alcohol and drug
assessment and follow all recommendations, complete a parenting assessment and follow all
recommendations, obtain and maintain suitable housing and legal income, sign a release
allowing DCS to monitor her compliance with probation, follow rules of probation and
refrain from incurring additional charges, dissociate from those with alcohol, drug, or
criminal issues, submit to and pass random drug screens and pill counts of prescribed
medication, provide DCS with a list of current medical providers and notify DCS of visits
with said providers, advise medical providers of her history of addiction, and notify DCS
prior to filling non-emergency prescriptions.
These requirements were reasonable and related to remedying the conditions that led
to the Children’s placement with DCS, namely Mother’s homelessness and drug addiction.
Mother takes issue with the timeframe in which DCS filed its termination petition. While
DCS was quick to file its petition, Mother had disappeared and was not exhibiting any signs
of compliance with the most important aspects of the permanency plans, namely to obtain
suitable housing and address her drug addiction. By the time of the second hearing date,
Mother still had not obtained housing, was not following the recommendations of her alcohol
and drug assessment, and had failed a drug screen. Accordingly, we conclude that while
Mother attempted to comply with some of the requirements enumerated in the permanency
plans, the court’s finding that Mother was in substantial noncompliance with the permanency
plans is supported by clear and convincing evidence. Thus, a fourth statutory ground existed
for termination of Mother’s parental rights.
D.
Under Tennessee law, a court may terminate parental rights when:
(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 and:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
-15-
(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.
Tenn. Code Ann. § 36-1-113(g)(3) (emphasis added). Termination of parental rights requires
clear and convincing evidence of all three factors. In re Valentine, 79 S.W.3d at 550.
Additionally, the persistence of conditions ground may only be applied “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 874.
Here, the Child was removed based upon a finding of dependency and neglect relative
to Mother’s inability to parent the Child as a result of homelessness and drug addiction.
Mother’s testimony at trial reflected that the conditions which led to removal persisted in that
she was still without a stable residence and had not received treatment for her drug addiction.
Mother allowed the Child to languish in DCS custody while she refused to even provide a
valid address for DCS to approve and continued to abuse prescription medication as
evidenced by her failed drug screen. Thus, there was little likelihood that the conditions
prohibiting the return of the Child would be remedied. Accordingly, the evidence does not
preponderate against the trial court’s finding that persistent conditions were established by
clear and convincing evidence; that continuation of the parent-child relationship would
greatly diminish the Child’s integration into a safe, stable, permanent home; and that a fifth
statutory ground existed for termination of Mother’s parental rights to the Child.
E.
Mother takes issue with DCS’s failure to assist her in reuniting with the Child.
Ordinarily, we would address the reasonableness of DCS’s efforts as a stand-alone issue in
determining whether sufficient grounds existed to support the termination of her parental
rights. However, during the pendency of this action, the Supreme Court issued an opinion
in which it specifically overruled the progeny of cases requiring “DCS to prove by clear and
convincing evidence that it made reasonable efforts to reunify as a precondition to
termination of parental rights.” In re Kaliyah S., 2015 WL 273659, at *18, n. 34; see also
In re Robert C., No. M2014-00702-COA-R3-PT, 2015 WL 478991, at *8-9 (Tenn. Ct. App.
February 3, 2015) (addressing the Court’s opinion). The Supreme Court stated,
-16-
“[I]n a termination proceeding, the extent of DCS’s efforts to reunify the
family is weighed in the court’s best-interest analysis, but proof of reasonable
efforts is not a precondition to termination of the parental rights of the
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 termination is in the child’s
best interest. See In re Adoption of Kleshinski, No. M2004-00986-COA-R3-
CV, 2005 WL 1046796, at *17 (Tenn. Ct. App. May 4, 2005) (citing In re
M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004)); see also In re
Giorgianna H., [205 S.W.3d 508, 519 (Tenn. Ct. App. 2006)]; Tenn. Dep’t of
Children’s Servs. v. T.M.B.K., 197 S.W.3d 282, 288 (Tenn. Ct. App. 2006).
Id. at *18. Accordingly, we will address the reasonableness of DCS’s efforts beyond what
was required to assist Mother in establishing a suitable home in the best interest analysis.
F.
Having concluded that there was clear and convincing evidence supporting the
statutory grounds to terminate Mother’s parental rights, we must consider whether
termination of her rights was in the best interest of the Child. In making this determination,
we are guided by the following non-exhaustive list of factors:
(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child . . . the court shall consider, but is not limited to,
the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such duration
of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
-17-
(4) Whether a meaningful relationship has otherwise been established between
the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or
guardian, has shown brutality, physical, sexual, emotional or psychological
abuse, or neglect toward the child, or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol or controlled substances as may render the parent
or guardian consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to [section]
36-5-101.
Tenn. Code Ann. § 36-1-113(I). “This list 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 parental rights is in the best interest of a child.” In re M.A.R., 183
S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when
the best interest[] of the child and those of the adults are in conflict, such conflict shall
always be resolved to favor the rights and the best interest[] of the child, which interests are
hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering
a child’s best interest, the court must take the child’s perspective, rather than the parent’s).
A number of the best interest factors weigh against Mother. She had not made the
adjustment of circumstances necessary to provide a stable home for the Child as evidenced
by her lack of housing and failure to address her drug addition by the time of the hearing.
Tenn. Code Ann. § 36-1-113(i)(1). She failed to maintain regular visitation with the Child
during the relevant time period. Tenn. Code Ann. § 36-1-113(i)(3). The Child resides in a
safe and stable foster home with foster parents that expressed a desire to adopt her and were
capable of addressing her special needs and providing the stability that she needed. Tenn.
-18-
Code Ann. § 36-1-113(i)(5). Questions remain as to whether Mother can provide a safe and
stable home as evidenced by her delay in securing housing and obtaining treatment for her
drug addiction. Tenn. Code Ann. § 36-1-113(i)(7). Mother has never remitted child support.
Tenn. Code Ann. § 36-1-113(i)(9). Relative to DCS’s efforts, DCS presented affidavits
documenting its efforts to reunite the Child with Mother, who essentially disappeared and
ceased communication with DCS from July 2013 until November 2013. Additionally, the
testimony at trial reflects DCS’s attempts to contact Mother and provide services. Having
reviewed the evidence, we conclude that DCS expended reasonable efforts in attempting to
assist Mother, who was difficult to locate, generally unresponsive to assistance from DCS,
and never made a corresponding effort to remedy the conditions which led to the Child’s
placement with DCS. Tenn. Code Ann. § 36-1-113(i)(2).
We acknowledge that Mother obviously cared for the Child and had experienced a
traumatic event. However, she allowed the Child to languish in custody for several months
while she lived in Indiana and ceased communication with DCS. Her inability to provide
stability for the Child and to take responsibility for her actions places doubt upon her ability
to parent. Moreover, the Child needs permanency and stability, which she has consistently
received from sources other than Mother. Accordingly, we conclude that there was clear and
convincing evidence to establish that termination of Mother’s parental rights was in the best
interest of the Child. We affirm the decision of the trial court.
V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Mimi L.
B.
______________________________________
JOHN W. McCLARTY, JUDGE
-19-