In re Dustin L. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 1, 2016
IN RE DUSTIN L. ET AL.
Appeal from the Juvenile Court for Anderson County
Nos. J-31746 to -31750, J-31555 Brian J. Hunt, Judge
No. E2015-02265-COA-R3-PT-FILED-SEPTEMBER 28, 2016
This is a termination of parental rights case focusing on the six minor children of Tonya
F. (“Mother”) and Joshua F. (“Father”). On February 9, 2015, the Tennessee Department
of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Mother
and Father. DCS alleged as a basis for termination the statutory grounds of (1) failure to
provide a suitable home, (2) substantial noncompliance with the permanency plans, and
(3) persistence of the conditions leading to removal of the children. Following a bench
trial, the trial court granted the petition upon its determination by clear and convincing
evidence that DCS had proven all three statutory grounds alleged. The court further
determined by clear and convincing evidence that termination of Mother’s and Father’s
parental rights was in the children’s best interest. Mother and Father have appealed.
Inasmuch as DCS has conceded that the elements of abandonment through failure to
provide a suitable home were not proven as to either party, we reverse this statutory
ground. We affirm the trial court’s judgment in all other respects, including the
termination of Mother’s and Father’s parental rights to the children.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Reversed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Paul L. Sexton, Oak Ridge, Tennessee, for the appellant, Tonya F.
Darrell W. Sproles, Wartburg, Tennessee, for the appellant, Joshua F.
Herbert H. Slatery, III, Attorney General and Reporter, and Rachel E. Buckley, Assistant
Attorney General, for the appellee, State of Tennessee Department of Children’s
Services.
L. Rosillo Mulligan, Harriman, Tennessee, Guardian Ad Litem.
OPINION
I. Factual and Procedural Background
This case involves termination of Mother’s and Father’s parental rights to their six
minor children: Dustin L., Patrick L., Laynie F., Tamra F., Cheyenne F., and Julian F.
(“the Children”).1 The Children were removed from Mother’s and Father’s custody by
order of the Campbell County Juvenile Court, dated December 18, 2012, and placed in
the custody of their paternal grandmother, who was a resident of Anderson County. The
Campbell County Juvenile Court subsequently adjudicated the Children to be dependent
and neglected on February 28, 2013, based upon the condition of Mother’s and Father’s
home. Mother and Father waived the adjudicatory hearing, stipulating that their home
was not appropriate for the Children.
On December 18, 2013, the Anderson County Juvenile Court (“trial court”)
entered a Protective Custody Order removing the Children from the custody of their
paternal grandmother, upon a petition filed by DCS alleging abuse and neglect by the
paternal grandmother and her live-in paramour. DCS also alleged that the paternal
grandmother had been violating the prior temporary custody order by allowing the
parents to exercise unsupervised visitation with the Children at the parents’ home. The
Children were placed in foster care at that time. The Campbell County Juvenile Court
transferred jurisdiction of this matter to the trial court on January 9, 2014.
DCS created the first permanency plan with the parents on January 16, 2014.2 The
permanency plan provided that the parents would: (1) visit with the Children at least 4.3
hours per month, (2) provide and maintain an appropriate and safe living environment
with working utilities, (3) provide beds with frames for all of the Children, (4) store their
medications and guns in a safe manner out of the reach of the Children, (5) complete
alcohol and drug assessments and follow all recommendations, (6) cooperate with in-
home services, (7) submit to random drug screens, (8) provide documentation regarding
valid prescriptions, (9) comply with all court orders, and (10) complete psychological
evaluations or sign releases to allow DCS to access prior evaluations.
1
Father is not the legal father of the oldest two children, Dustin L. and Patrick L. Their legal father
voluntarily surrendered his parental rights to the subject children prior to the termination hearing, and he
is not a party to this appeal.
2
Although this plan was ratified by the trial court on February 11, 2014, we note that the requirement
contained in Tennessee Code Annotated § 37-2-403 (2014), directing the juvenile court to ratify the
permanency plan within sixty days, is “directory and not mandatory.” In re A.W., 114 S.W.3d 541, 546
(Tenn. Ct. App. 2003). Ergo, a permanency plan that is not ratified within this timeframe is not
considered a nullity. Id.
2
A subsequent permanency plan was created on February 26, 2014. This plan
reveals that the trial court had entered a no-contact order prohibiting contact between the
parents and the Children.3 For this reason, the visitation requirement was removed, but
the other requirements of the prior plan were reiterated in the February 26 plan. The next
permanency plan was created on June 19, 2014. Because the no-contact order was still in
effect, the June 19 plan was virtually identical to the February 26 plan. The only
additional requirements were: (1) Mother to resolve her legal issues relating to a recent
DUI charge, (2) the parents to submit to random pill counts, and (3) DCS to compile a list
of environmental issues regarding the parents’ home that needed to be resolved for the
safe return of the Children. On November 21, 2014, the trial court entered a review order
finding the parents to be in substantial noncompliance with the permanency plans. In this
order, the court states that the parents had failed to comply with the requirement of
psychological evaluation recommendations, failed to comply with in-home services, and
failed to address the environmental concerns in the home.
A subsequent permanency plan was created on January 22, 2015. By this time, the
parents had been allowed to resume visitation with the Children, such that the
requirement of visitation of at least 4.3 hours per month was again included in the plan.
The only other requirement added to this plan provided that the parents should not incur
any new criminal charges. The final permanency plan was created on May 27, 2015. By
this time, DCS had filed the termination petition on February 9, 2015. The final
permanency plan was virtually identical to the January 22, 2015 plan.
The trial court conducted the termination hearing on September 17 and 18, 2015.
The parents appeared in court approximately half-way through the first day of trial. They
testified during the second day of trial. Other witnesses included the family’s current and
former DCS family service workers, the in-home service worker for Youth Villages (a
DCS contractor), and the fifteen-year-old child, Patrick L. Following the bench trial, the
court entered an order terminating the parents’ parental rights. The court determined that
DCS had proven by clear and convincing evidence the statutory grounds of (1) failure to
provide a suitable home, (2) substantial noncompliance with the permanency plans, and
(3) persistence of the conditions leading to removal of the Children. The court further
determined by clear and convincing evidence that termination of Mother’s and Father’s
parental rights was in the Children’s best interest. Mother and Father timely appealed.
3
This no-contact order appears to be based upon allegations that the parents were “coaching” the
Children not to report abuse by the paternal grandmother’s paramour, as well as allegations that the
Children were “hysterical” and suffered an increase in nightmares and defiant behavior following visits
with the parents.
3
II. Issues Presented
Mother and Father present identical issues for our review, which we have restated
as follows:
1. Whether the trial court erred by finding clear and convincing
evidence that the conditions leading to the Children’s removal into
protective custody persisted.
2. Whether the trial court erred by finding clear and convincing
evidence that it was in the Children’s best interest to terminate
Mother’s and Father’s parental rights.
In addition, DCS raises the following issue, which we have restated slightly:
3. Whether the trial court erred by finding clear and convincing
evidence that Mother and Father had substantially failed to comply
with the statements of responsibilities in the permanency plans.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982)). As our Supreme Court has recently explained:
4
The parental rights at stake are “far more precious than any property
right.” Santosky, 455 U.S. at 758-59. Termination of 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 of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
rights is “final and irrevocable”). In light of the interests and consequences
at stake, parents are constitutionally entitled to “fundamentally fair
procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; 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.” In re
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).
***
In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
5
IV. Grounds for Termination of Parental Rights
Tennessee Code Annotated § 36-1-113 (Supp. 2016) lists the statutory grounds for
termination of parental rights, providing in relevant part as follows:
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based 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) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
The trial court determined that the evidence clearly and convincingly supported a
finding of three statutory grounds to terminate Mother’s and Father’s parental rights: (1)
abandonment by failure to provide a suitable home pursuant to Tennessee Code
Annotated § 36-1-113(g)(1), (2) persistence of conditions leading to the Children’s
removal pursuant to Tennessee Code Annotated § 36-1-113(g)(3), and (3) failure to
substantially comply with the reasonable responsibilities set out in the permanency plans
pursuant to Tennessee Code Annotated § 36-1-113(g)(2). In its appellate brief, DCS
concedes that the requirements of the statutory ground of abandonment by failure to
provide a suitable home were not proven by clear and convincing evidence. Upon our
review of the record, we agree. Therefore, this ground must be reversed on appeal. We
will address the remaining termination grounds found by the trial court in turn.
A. Persistence of Conditions Leading to the Children’s Removal
The trial court found clear and convincing evidence as to both parents of the
statutory ground of persistence of conditions leading to removal of the Children from the
parents’ home. Regarding this statutory ground, Tennessee Code Annotated § 36-1-
113(g)(3) provides:
6
(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 or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely
returned to the parent or parents or the guardian or guardians
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; . . .
In its final judgment, the trial court made the following specific findings regarding
this statutory ground:
In this case, pursuant to Tenn. Code Ann. §36-1-113(g)(3), the Court
finds that there is clear and convincing evidence that the conditions which
led to the removal of the children persist to this day. It has been thirty-three
months since the children were removed from the parents’ home and
twenty-three months since the children have been in state custody. The
children were removed from the parents’ home due to extreme
environmental concerns which made it unsafe for the children to reside
there. These conditions persist to this day. As detailed above in Ground 1,
Abandonment by Failure to Provide a Suitable Home, the Court finds that
the parents’ home remains unsafe and unsuitable for the children to return
home. Further, other conditions exist in the home that would, in all
reasonable probability, lead to further neglect or abuse of the children, in
that the parents have not completed the recommendations of their
assessments and have not actively participated in services or therapy. The
Court finds that because the children have been removed from the parents’
home for thirty-three months with little progress made by the parents in
completing the tasks required of them on the permanency plans, despite
reasonable efforts by DCS to assist them, that there is little likelihood that
these conditions will be remedied in the near future so that the children can
7
be safely returned to the parents. Continuation of the parent-child
relationship greatly diminishes the children’s chances of being placed into a
safe, stable and permanent home.
Upon careful review, we determine that a preponderance of the evidence supports
the trial court’s findings as to persistence of the conditions leading to removal of the
Children from Mother’s and Father’s home. In the initial petition seeking removal of the
Children, DCS stated the following regarding the family home:
The family of eight resides in a two bedroom house, but one of the
bedrooms cannot be used. It is packed full of junk and the door to the room
is padlocked with a bookcase in front. The six children and two adults
utilize one bedroom that has two twin beds which are difficult to access due
to frequently also being piled with various junk-type items and clothes.
There is also a couch in the home. The kitchen has lots of clutter and dirty
dishes. The bathroom is relatively clean, but there is no water in the
bathroom sink. The tub and toilet do function. Both mother and father
demonstrate hoarder-type behaviors. The Department has put in-home
services through Solution Source to work with the family, and has rented a
dumpster for a week to assist the family in disposing of some of the
inordinate amount of clutter, garbage and junk.
The Department has had numerous referrals since 2000 on this
family, with most of them stemming from environmental issues. In each
case, the parents will make some improvements while the investigation is
pending, but shortly after the Department’s intervention ends, the home
rapidly deteriorates to the condition it was or even worse. Currently, it
seems as if the house is deteriorating more and more each year. The crawl
space underneath the house is packed full of junk. There is a half-built
addition to the home that is unstable and not useable. There are several
non-working vehicles and a camper in the front yard, all of which are full of
clothes, junk and garbage. While the family has made some improvements
to the front yard, there are nails, broken glass and other dangerous debris in
the yard which poses a hazard to the children. The front porch is also
loaded with various items and the roof is falling in. The flooring of the
home feels as if it could possibly give way.
There is only one exit to the home, and due to the amount of clutter,
it is difficult to navigate through the home. The only source of heat in the
home is a kerosene heater. There are concerns that the heater and the
8
clutter pose a fire hazard to the children. There are no smoke alarms in the
home.
Crystal Mitchell, the DCS worker who was assigned to this family from December
18, 2012, until May 1, 2015, testified at trial that she was present at the parents’ home in
February 2014, approximately fourteen months after the Children were removed. Ms.
Mitchell took photographs of the home at that time, which were presented to the court as
exhibits. These photographs demonstrate that the interior and exterior of the home
remained extremely cluttered, as described in the December 2012 removal petition. In
addition to the clutter, Ms. Mitchell explained that the yard still contained broken glass,
nails, sharp tools, and other hazards. Ms. Mitchell stated that the home’s interior had
exposed wiring and holes in the walls through which one could see outside.
Ms. Mitchell further testified that DCS placed services in the home through Youth
Villages, a contractor paid by DCS. Ms. Mitchell explained that despite the provision of
a dumpster funded by DCS and offers of assistance from the Youth Villages worker, the
parents only succeeded in partially decluttering the yard and the living room of the home
while the other rooms remained the same. According to Ms. Mitchell, her later visits to
the home demonstrated that the clean-up efforts were not long lasting. On September 10,
2014, the parents, Ms. Mitchell, and the Youth Villages worker prepared a list of items
that needed to be remedied before the home would be deemed safe or suitable for the
Children. Ms. Mitchell stated that the parents made little progress regarding the
deficiencies in the home by the time the case was reassigned to another DCS worker.
Leah Baird, the current DCS worker, testified that she had been assigned to the
family since May 1, 2015, approximately four months prior to trial. Ms. Baird related
that although she and the Youth Villages worker had an appointment to meet Mother at
the parents’ home a few days prior to trial, Mother had not been at home. Ms. Baird
reported making two other unannounced visits to the home since she was assigned to the
case but was unable to find the parents in order to gain entry to the residence. According
to Ms. Baird, the home’s yard area appeared to have been cleaned somewhat since her
earlier visits, although she still observed a large amount of clutter on the porch. She also
reported the existence of several vehicles remaining in the yard, a large pile of soda cans
outside the door of the home that had drawn bees and insects, and exposed wiring and
holes between the home’s exterior and interior. Ms. Baird stated that she viewed the
addition of an unfinished room apparently under construction on the side of the home.
She explained that the improvements appeared incomplete. Ms. Baird presented the court
with photographs of the exterior of the home, which depicted the conditions she
described in her testimony.
9
Ms. Baird reported that because she had been unable to gain entry to the interior of
the home, she could not determine whether it had been cleaned or whether the other
concerns regarding the home’s interior had been remedied. Despite the efforts made by
Mother and Father, when asked how the parents’ home compared to other cluttered
homes she had witnessed during her employment with DCS, Ms. Baird described the
parents’ home as being more cluttered.
Catherine Reynolds, the regional supervisor for the in-home services program at
Youth Villages, testified that she and Erin Butler had been assigned to the family in June
2014. She explained that the prior Youth Villages worker, John Mason, was reassigned
because the parents were not satisfied with him and due to concerns for Mr. Mason’s
safety. Ms. Reynolds testified that she and Ms. Butler met with the parents weekly to
work with them on parenting skills and improving their housing situation.4 According to
Ms. Reynolds, she and Mr. Mason had both provided the parents with information
regarding services offered by ETHRA5 to help the parents remedy the issues in their
home.
Ms. Reynolds stated that by November 2014, she and other workers assigned to
the family determined that the parents were not making sufficient progress toward
cleaning and repairing the residence. Consequently, she and Ms. Butler met with the
parents and helped them develop a budget to determine an amount the parents could
afford to pay toward rental of an appropriate home. Ms. Reynolds explained that Father
collected a monthly Social Security disability benefit such that the parents never
indicated that paying rent would be a major concern. Although Ms. Reynolds and Ms.
Butler assisted the parents in applying for public housing, the parents were not approved
for such housing. Ms. Reynolds and Ms. Butler then accompanied the parents in viewing
three homes that the parents believed they could afford. According to Ms. Reynolds, the
parents were supposed to have arranged for the landlord to meet them so they could view
the interior of the homes, but when they arrived, no one was present.
The parents both testified that substantial work had been done to the interior of
their home in order to add an additional bedroom and to remedy the wiring issues and
other problems pointed out by the service workers. The parents admitted, however, that
the addition was still incomplete and that they could not guarantee when it would be
finished. The parents presented no photographs of the interior of the home, and their
claims could not be verified by any of the service workers assigned to the family due to
the workers’ inability to gain access to the inside of the home.
4
Ms. Reynolds explained that after November 2014, these meetings took place outside the parents’ home
due to concerns for the service workers’ safety following a “threatening gesture” Father made toward Ms.
Mitchell.
5
A widely known acronym for the East Tennessee Human Resource Agency.
10
Having thoroughly reviewed the evidence presented, we determine that a
preponderance of the evidence supports the trial court’s findings as to persistence of the
conditions leading to removal of the Children from Mother’s and Father’s home. A
comparison of the photographs from February 2014 and the photographs taken in
September 2015 demonstrates that there has indeed been some progress made regarding
the home’s yard area, probably due in large part to DCS’s provision of a dumpster.
However, there remains a significant amount of clean-up work to be accomplished.
Photographs of the exterior of the home taken in September 2015 demonstrate the
unfinished construction work, accompanied by large open holes in the walls and exposed
cords and wiring. Piles of cans, tires, building materials, and other debris remained
around the home. A porch or shed on one end of the home was filled with tools,
materials, and waste, much of which appeared to have been untouched for some time.
Furthermore, there was a dearth of evidence to corroborate the parents’ claims
regarding work performed on the interior of the home. None of the service workers had
been able to gain entry to the home for many months. The parents presented no
photographic or other evidence to document the positive change they claimed had
occurred inside the home. The final viewing by Ms. Mitchell and Ms. Reynolds in late
2014 established that during the two-year period since the Children had been removed,
the parents had made only minor improvement to the home and yard, with little enduring
effect.
We note that despite the parents’ arguments to the contrary, this does not appear to
be a case wherein the parents’ economic circumstances have prevented them from
remedying the conditions in and around the home leading to the Children’s removal. The
parents admitted that they owned their residence with no mortgage. Father received
Social Security disability benefits in the amount of $872 per month. In addition, Father
testified that he sold junk metal and aluminum cans to earn extra money. For
approximately five months prior to the termination trial, Mother had been employed at a
gas station working twenty-five to thirty hours per week and earning $7.50 per hour.
According to Mother, she earned, at most, approximately $500 biweekly. In addition, the
parties owned several cars that Father admitted could be sold for approximately $3,000.
Mother explained that prior to her procurement of employment, the parties had lived
solely on Father’s income. She could not explain, however, why the addition of her
income for the past five months had not improved their living situation.
We conclude that a preponderance of the evidence supports the trial court’s factual
findings as to persistence of the conditions leading to removal of the Children from
Mother’s and Father’s home and that clear and convincing evidence established this
11
statutory ground. We therefore affirm the trial court’s determination regarding this
ground for termination of parental rights.
B. Substantial Noncompliance with Permanency Plans
The trial court also found clear and convincing evidence that Mother and Father
failed to substantially comply with the reasonable responsibilities set out in their
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides as an
additional ground for termination of parental rights:
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4; . . . .
Neither Mother nor Father raised this statutory ground as an issue on appeal. Due to the
fundamental constitutional interest involved, however, we will address this ground as
well. See In re Carrington H., 483 S.W.3d at 525; see also In re Angela E., 303 S.W.3d
240, 251 n.14 (Tenn. 2010).
Upon our thorough review of the record, we determine that clear and convincing
evidence demonstrated that both Mother and Father failed to substantially comply with
the reasonable responsibilities set out in their permanency plans. As previously
determined, the parents failed to provide an appropriate home to which the Children
could return. In addition, evidence established that the parents failed to follow the
recommendations of their psychological evaluations and to fully comply with in-home
services. Mother also failed to comply with the recommendations resulting from her
alcohol and drug assessment. We conclude that the trial court properly terminated the
parental rights of Mother and Father based upon this statutory ground as well.
V. Best Interest of Children
When at least one ground for termination of parental rights has been established,
as here, the petitioners must then prove by clear and convincing evidence that termination
of the parent’s rights is in the child’s best interest. See White v. Moody, 171 S.W.3d 187,
192 (Tenn. Ct. App. 1994). When a parent has been found to be unfit by the
establishment of a ground for termination, the interests of parent and child diverge, and
the focus shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877.
Further, the best interest of a child must be determined from the child’s perspective and
not the parent’s. White, 171 S.W.3d at 194.
12
Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:
(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;
(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.
13
Regarding the best interest analysis in this matter, the trial court found:
In reviewing these factors, the Court relies heavily on the factors detailed in
§36-1-113(i)(1) and (2). The Court finds that the parents have failed to
make such an adjustment of circumstance, conduct or conditions as to make
it safe and in the children’s best interest to be returned to the parents’ home.
This was mainly due to the parents’ housing, which while it has been
somewhat improved, [it] has not drastically improved to the extent needed
for the children to return to the parents. In addition, the parents have not
made the progress needed on the permanency plans. Even in the seven
months since the Petition to Terminate Parental Rights was filed, the
parents have failed to remedy their housing situation and have failed to
acknowledge the intensive therapy required for the children to address the
past abuse they suffered. The Court can only look at this conduct and the
circumstances over this time period and rationally conclude that it is
unlikely to change in the near future.
In addition, the Court finds that the parents have failed to effect a
lasting adjustment after reasonable efforts by available social service
agencies for such duration of time, that lasting adjustment does not appear
possible. Again, the Court finds that reasonable efforts were made by DCS
and Youth Villages, as discussed above, to assist the parents in remedying
their circumstances. The parents have failed to make such a lasting
adjustment after roughly twenty-one months, and thus the Court finds that
such an adjustment does not appear reasonably possible.
Further, the Court heard extensive testimony that the children are
doing well in their respective foster homes and placements, that they have
bonded to their foster families and that they wish to be adopted. The Court
can only conclude that termination of the parental rights is in the children’s
best interests.
Having carefully considered the record in this cause, we agree with the trial
court’s determination regarding the best interest of the Children. Our review of the
evidence in light of the statutory factors listed above reveals that Mother and Father did
not demonstrate that they had made such an adjustment of circumstance, conduct, or
conditions as to make it safe and in the Children’s best interest to be in their home.
Father and Mother failed to provide a safe and adequate home to which the Children
could return. In addition, the parents failed to address their mental health issues, and
Mother failed to address her long-term methadone use.
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Mother and Father also did not demonstrate that they had effected a lasting
adjustment after reasonable efforts made by social service agencies. DCS made
reasonable efforts to assist Mother and Father in this matter, including the provision of
in-home services for more than two years. DCS also provided referrals and funding for
psychological evaluations, provided referrals and funding for Mother’s alcohol and drug
assessment, and facilitated visitation with the Children. DCS procured and paid for the
rental of a dumpster for the parents to utilize in their cleaning efforts. Youth Villages
helped the parents apply for public housing and provided the parents with contact
information for other services related to housing. DCS provided drug screens, gas cards,
and offered to pay one month’s rent and utilities if a new home could be located. DCS
entered into permanency plans with the parents and provided a list of suggested repairs
for the family home. DCS workers further testified that while they attempted to maintain
contact with the parents and attempted numerous home visits, they were often unable to
make contact. Because these Children had been removed for approximately thirty-three
months at the time of trial with little progress made by the parents, it appears that a
lasting adjustment would be unlikely in the near future.
Although the evidence did establish that Mother and Father exercised fairly
regular visitation with the Children, the evidence is somewhat conflicting as to whether a
meaningful relationship existed between the parents and the Children. Some of the
Children resisted visitation after being in foster care for a period. The Children’s
therapists at one point respectively opined that visitation was detrimental to the
Children’s progress in therapy. The trial court suspended visitation for a term of several
months due to allegations that Father coached the Children not to speak about the abuse
they suffered at their paternal grandmother’s home and due to the increase in behavioral
issues following visits. Patrick L., the only child who testified, stated that he was not
happy in the group home in which he lived and that he wanted to return to the parents’
home. A change of caretakers would likely have a negative effect on the emotional and
psychological condition of the younger three children, however, based on the bond they
had formed with their foster parents. Testimony demonstrated that the oldest child and
the youngest three children were thriving in the care of their pre-adoptive foster family.6
We note that Patrick L.’s guardian ad litem has objected to termination of the
parents’ rights, arguing that termination is not in Patrick L.’s best interest because he
might not be an adoptable child due to his age and other concerns. The guardian’s
argument appears to be primarily premised on the theory that Patrick L. would be better
served living with his parents, despite the demonstrated deficiencies with such home
environment, than to remain in foster care and confront the risk of not being adopted.
This Court has previously rejected the argument that adoption must be immediately
6
Two of the children were placed into group homes due to behavioral issues. Ms. Baird testified,
however, that she believed an adoptive home could be found for these children as well.
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contemplated in order for termination to be appropriate. See In re Chloe R.P., No.
E2010-01257-COA-R3-PT, 2011 WL 578534, at *3 (Tenn. Ct. App. Feb. 17, 2011);
State Dep’t of Children’s Servs. v. D.G.B., No. E2001-02426-COA-R3-JV, 2002 WL
31014838, at *9 (Tenn. Ct. App. Sept. 10, 2002); see also In re Audrey S., 182 S.W.3d at
879. Furthermore, there has been no showing in this case that Patrick L. could be
returned to the care of his parents at an early date. Thirty-three months after removal of
the Children, the parents had failed to remedy the conditions leading to removal such that
Patrick L. could safely reside in the family home. The parents had also failed to address
their psychological issues and long-term use of controlled substances, either of which
could result in further neglect to this child. We find the guardian ad litem’s argument to
be unpersuasive.
Regarding the remaining factors, proof in the record indicated that Mother and
Father had shown neglect toward the Children when the Children were in the parents’
care. Furthermore, the physical environment of the parents’ home was not shown to be
healthy and safe for the Children due to environmental concerns and the consistent
presence of prescribed controlled substances. The parents’ failure to comply with the
recommendations of their psychological evaluations indicated that the parents’ mental
and/or emotional status could be detrimental to the Children or prevent the parents from
effectively providing safe and stable care and supervision for the Children. Neither
parent presented proof of having paid child support.
Based on our review of the evidence in light of the statutory factors, we conclude
that the trial court did not err in finding clear and convincing evidence that termination of
Mother’s and Father’s parental rights was in the best interest of the Children. We affirm
the trial court’s determination regarding the Children’s best interest.
VI. Conclusion
For the reasons stated above, we affirm the judgment of the trial court terminating
the parental rights of Mother and Father based on the grounds of persistence of the
conditions leading to the Children’s removal and substantial noncompliance with the
permanency plans. We reverse the trial court’s finding regarding the ground of
abandonment by failure to provide a suitable home in that DCS has conceded that the
requirements of this statutory ground were not proven by clear and convincing evidence.
The trial court’s judgment terminating Mother’s and Father’s parental rights is affirmed
in all other respects. Costs on appeal are taxed to the appellants, Tonya F. and Joshua F.
This case is remanded to the trial court, pursuant to applicable law, for enforcement of
the trial court’s judgment and collection of costs assessed below.
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_______________________________
THOMAS R. FRIERSON, II, JUDGE
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