In the Matter of: Justin K., Courtney K., Eva K. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 20, 2013
IN THE MATTER OF: JUSTIN K., COURTNEY K., EVA K.
Appeal from the Juvenile Court for Montgomery County
No. MCJVCNRC100051288,0051287,0001027 Wayne C. Shelton, Judge
No. M2012-01779-COA-R3-PT - Filed March 27, 2013
Mother’s parental rights to three children were terminated based on her abandonment, failure
to comply with family permanency plans the Department of Children’s Services developed,
and persistence of the conditions that required removal of the children initially. Mother
appealed, and we affirm the trial court’s judgment. The trial court’s findings are supported
by clear and convincing evidence.
Tenn. R. App. P. 3 Appeal As Of Right; Judgment of the Juvenile Court Affirmed
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.
Wayne Clemons, Clarksville, Tennessee, for the appellant, J.M.K.
Robert E. Cooper, Jr., Attorney General and Reporter, Marcie E. Greene, Assistant Attorney
General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. B ACKGROUND
This case involves the termination of J.M.K.’s parental rights to her three children
Justin, Courtney, and Eva. The Tennessee Department of Children’s Services (“DCS”)
initially became involved with J.M.K.’s family on July 9, 2010, when J.M.K. was arrested
and charged with domestic violence after using a tire iron to break the windows of a vehicle
while Justin and Courtney were inside the vehicle. When it became apparent that the
children’s father was unable to care for the children due to his intoxicated condition, DCS
removed the children from the home and obtained custody of the children.1 Justin and
Courtney were subsequently declared dependent and neglected . In July 2010 Justin was two
years old and Courtney was eleven months old.
DCS began making efforts to reunify the family and developed a Family Permanency
Plan with J.M.K.’s assistance on July 22, 2010. J.M.K. was required to do the following
under the plan: 1) attend classes on domestic violence; 2) complete anger management
classes; 3) complete parenting classes; 4) complete an alcohol and drug assessment and
follow all recommendations; 5) attend an alcohol abuse program; 6) apply for housing; and
7) be able to provide for the children. J.M.K. signed the permanency plan, affirming she had
participated in developing the plan and that she agreed with the plan. J.M.K. also signed a
statement indicating she had received a copy of the Criteria and Procedures for Termination
of Parental Rights and was given an explanation of its contents.
A family service worker employed by DCS, Latricia Halls, assisted J.M.K. in her
efforts to meet the plan’s requirements by helping her obtain a free cell phone with 250
minutes each month through a federal program. Ms. Halls also provided information to
J.M.K. about how to apply for housing in an effort to help J.M.K. obtain stable housing.
J.M.K. initially made progress towards meeting her obligations under the permanency
plan, and her children were returned to her for a trial home visit in January 2011. However,
J.M.K. was arrested for driving under the influence (“DUI”) during the trial home visit, and
complaints were made to DCS alleging J.M.K. and the children’s father were both too
intoxicated to care properly for the children. The home visit was terminated in mid-February,
and Justin and Courtney were returned to DCS custody.
The children were returned to J.M.K. and the father’s home for a second trial home
visit in early March. This home visit was terminated in May 2011 as a result of a referral to
DCS alleging the parents were too intoxicated to care properly for Justin and Courtney and
that Justin was found wandering around outside unsupervised.
A second Family Permanency Plan was developed in July 2011. Under this second
plan J.M.K. was required to 1) pay child support; 2) provide and maintain running water and
electricity in a home without interruptions in service; 3) have a legal means of income; 4) pay
her bills in a timely fashion; 5) participate in a new alcohol and drug assessment and continue
treatment until treatment goals were met; and 6) participate in an alcohol support group. As
with the first plan, J.M.K. signed the second plan, affirming that she had participated in the
1
The children’s father surrendered his parental rights in or about July 2012 and is not a party to this
action.
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plan’s development and agreed with the plan’s provisions. J.M.K. also signed another form
indicating she had received a copy of the Criteria and Procedures for Termination of Parental
Rights.
Unlike the first permanency plan, however, J.M.K. took no steps to satisfy her
obligations under the second permanency plan. She did not complete the alcohol and drug
assessment, and she failed to provide any financial support for the children. She also failed
to obtain stable housing or obtain a legal source of income. J.M.K. lost the home she had
during the trial home visit shortly after the visit was terminated. J.M.K. obtained housing
elsewhere for a short period, but J.M.K. moved out of that residence before Ms. Halls had
an opportunity to inspect it.2
Ms. Halls lost contact with J.M.K. shortly thereafter. Ms. Halls called J.M.K.’s
parents, her friends, the Salvation Army, and Community Action. Ms. Halls also went to the
Salvation Army several times in an effort to locate J.M.K. Every time Ms. Halls tried to call
J.M.K., the phone was either out of minutes or not working.
Ms. Halls testified that from September 26, 2011, through January 26, 2012, she saw
J.M.K. only once, during a chance encounter outside the public library that was walking
distance from the DCS office. Ms. Halls approached J.M.K. and invited her to come to the
DCS office to discuss Justin and Courtney, but J.M.K. never went in to meet with Ms. Halls.
Ms. Halls testified further that DCS made arrangements for J.M.K. to be able to visit her
children every day at the daycare center they attended, but that J.M.K. visited only a handful
of times throughout this four-month period. According to Ms. Halls, the last time J.M.K.
visited Justin and Courtney was December 3, 2011.
On January 26, 2012, DCS filed a petition to terminate J.M.K.’s parental rights to
Justin and Courtney based on J.M.K.’s failure to visit or support her children and her
unwillingness to comply with her obligations under the permanency plans. A third Family
Permanency Plan was developed in February 2012, after the petition to terminate was filed.
The third plan required J.M.K. to 1) pay child support; 2) complete a new alcohol and drug
assessment; 3) follow the recommendation(s) of the assessment; 4) develop a relapse plan;
5) be assessed for mental health issues; 6) have a legal means of income to support the
children; and 7) have a stable place to live. The plan provided for J.M.K. to visit her children
and indicated DCS would assist with transportation and monitor the visits.
The following month J.M.K. gave birth to another child, Eva. A few days after she
was born, Eva was taken into state custody as a result of DCS’s concerns about J.M.K.’s drug
2
Ms. Halls testified she made three separate attempts to inspect J.M.K.’s home before she moved out.
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and alcohol abuse, her lack of stable housing, and her refusal to cooperate with DCS. Eva
was declared dependent and neglected in March 2012.3
DCS developed a fourth Family Permanency Plan in March 2012. The first three
plans covered only Justin and Courtney, and this fourth plan applied to all three children.
The fourth permanency plan contained most of the same information and requirements as the
third plan. Ms. Halls testified that she attempted to contact J.M.K. to assist with developing
the third and fourth permanency plans, but Ms. Halls was unable to locate J.M.K. at those
times.
J.M.K. was arrested in May 2012 for burglary, vandalism, and violation of the terms
of her probation. DCS filed a petition to terminate J.M.K.’s parental rights to Eva in July
2012. By this time all the children were living together with foster parents and the
permanency plan listed adoption as a permanent goal in addition to family reunification.
At the time of the termination hearing J.M.K. was incarcerated in Montgomery County
where she was serving a sentence for her probation violation. She was awaiting sentencing
on her burglary and vandalism charges. J.M.K. testified that she suffers from bipolar
disorder and that she is not supposed to consume alcohol while she is taking her bipolar
medication.
II. T RIAL C OURT P ROCEEDINGS
Following a trial at the end of July 2012 the trial court entered an order terminating
J.M.K.’s parental rights to Justin, Courtney, and Eva. The court concluded there was clear
and convincing evidence to support the termination of J.M.K.’s parental rights and that
termination was in the best interest of the children. The grounds for termination included
abandonment, as defined by Tenn. Code Ann. § 36-1-113(g)(1); substantial noncompliance
with the statement of responsibilities in the permanency plans, as set forth in Tenn. Code
Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2); and conditions that led to the children’s removal
still existed that prevented return of the children to J.M.K., as set forth in Tennessee Code
Annotated § 36-1-113(g)(3).
In conducting the best interest analysis, the trial court considered the statutory factors
set forth in § 36-1-113(i) and concluded it was in the children’s best interest to terminate
J.M.K.’s parental rights. The trial court thus entered an order terminating J.M.K.’s parental
rights to Justin, Courtney, and Eva.
3
Ms. Halls testified J.M.K. did not visit Eva after she was taken into DCS custody or make any phone
calls to find out how she was doing.
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J.M.K. appeals the trial court’s order and raises the following issues on appeal:
1. Did the State prove notice of the definition and potential consequences of
abandonment as required by Tenn. Code Ann. § 37-2-403?
2. Did J.M.K. abandon her children by willfully failing to visit or support them?
3. Did J.M.K. abandon her children by engaging in conduct prior to incarceration
that exhibited a wanton disregard for the welfare of the children?
4. Did J.M.K. fail to substantially comply with the Permanency Plan?
5. Is termination of parental rights in the best interest of the children?
III. A NALYSIS
A. Standards for Terminating Parental Rights
A parent has a fundamental right, based in both the federal and state constitutions,
to the care, custody and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921
S.W.2d 170, 174-75 (Tenn. 1996); In Re Adoption of a Female Child, 896 S.W.2d 546, 547-
48 (Tenn. 1995). While this right is fundamental, it is not absolute. The state may interfere
with parental rights, through judicial action, in some limited circumstances. Santosky, 455
U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.
Our legislature has identified those situations in which the state’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting forth
the grounds upon which termination proceedings can be brought. Tenn. Code Ann. § 36-1-
113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn
v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and parental rights may be terminated only
where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct.
App. 1998).
Persons seeking to terminate another’s parental rights must prove two things.
Tennessee Code Annotated § 36-1-113(c) requires that termination of parental rights must
be based upon: (1) A finding by the court by clear and convincing evidence that the grounds
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for termination of parental rights have been established; and (2) that termination of the
parent’s rights is in the best interests of the child.
Both grounds and best interests must be proved by clear and convincing evidence. In
re Angela E., 303 S.W.3d at 250 ; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). This heightened burden of proof is one of the
safeguards required by the fundamental rights involved, Santosky, 455 U.S. at 769, and its
purpose is to minimize the possibility of erroneous decisions that result in an unwarranted
termination of or interference with these rights. In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010); In re Angela E., 303 S.W.3d at 250; In re M.W.A., 980 S.W.2d at 622.
Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d at 861,
and eliminates any serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t of Children’s
Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
In contrast to the preponderance of the evidence standard, clear and convincing
evidence should demonstrate that the truth of the facts asserted is “highly probable” as
opposed to merely “more probable” than not. In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct.
App. 2005).
The party seeking termination must establish the existence of only one statutory
ground to support a termination. In re Angela E., 303 S.W.3d at 251; In re Valentine, 79
S.W.3d at 546. Only if at least one ground is established by clear and convincing evidence
does the trial court or the reviewing court conduct a best interests analysis. In re Angela E.,
303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The
best interests analysis is separate from and subsequent to the determination that there is clear
and convincing evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
As we have stated before, existence of a ground does not inexorably lead to the conclusion
that termination of a parent’s rights is in the best interest of the child. In re C.B.W., 2006 WL
1749534, at *6 (Tenn. Ct. App. June 26, 2006).
Statutory factors are set out for the best interests analysis that the court “shall
consider,” but that analysis “is not limited to” the factors enumerated in the statute. Tenn.
Code Ann. § 36–1–113(i); In re Angela E., 303 S.W.3d at 251; In re Audrey S., 182 S.W.3d
838, 878 (Tenn. Ct. App. 2005). Every factor need not be applicable in order for the trial
court to determine that it is in the best interest of the child for a parent’s right to be
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terminated. The relevance and weight to be given each factor depends on the unique facts of
each case. In some cases one factor alone may be sufficient to determine the outcome. In Re
Audrey S., 182 S.W.3d at 878.
Appellate courts review the trial court’s findings of fact in termination proceedings
using the standard of review in Tenn. R. App. P. 13(d). In re Bernard T., 319 S.W.3d at 596;
In re Angela E., 303 S.W.3d at 246. Thus, reviewing courts will review the trial court’s
findings of fact de novo on the record and accord these findings a presumption of correctness
unless the evidence preponderates otherwise. In the Matter of M.L.P., 281 S.W.3d 387, 393
(Tenn. 2009); In re A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007).
In light of the heightened burden of proof in termination proceedings, the reviewing
court must make its own determination as to whether the facts, either as found by the trial
court or as supported the evidence, provide clear and convincing evidence that supports all
the elements necessary to terminate a parent’s rights. In re Bernard T., 319 S.W.3d at 597.
A reviewing court must review “the trial court’s ruling that the facts of [a] case sufficiently
support the termination ground. . . .,” a conclusion of law, de novo with no presumption of
correctness. In the Matter of M.L.P., 281 S.W.3d at 393 (quoting In re A.M.H., 215 S.W.3d
at 810).
B. Notice that Abandonment May Lead to Termination
J.M.K. first alleges DCS has failed to prove it satisfied the notice requirements of
Tenn. Code Ann. § 37-2-403, which addresses family permanency plans when children are
placed in foster care. That statute requires that each such plan include in its statement of
parent responsibilities “the definitions of ‘abandonment’ and ‘abandonment of an infant’”
and the criteria and procedures for termination of parental rights. Tenn. Code Ann. § 37-2-
403(a)(2)(A). The provision also requires that each party shall sign the statement and be
given a copy of it.
As set forth above, the first and second Family Permanency Plans DCS developed
with the assistance of J.M.K. included the following statement that J.M.K. signed: “I have
received a copy of Criteria & Procedures for Termination of Parental Rights and have been
given an explanation of its contents.” (Emphasis in original.)
However, on appeal J.M.K. contends that none of the four permanency plans that
appear in the record shows J.M.K. signed a portion of a permanency plan that describes the
criteria for abandonment. However, the record contains the statement quoted above and
signed by J.M.K.
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It is important to point out that the Petition to Terminate Parental Rights DCS filed
in January 2012 with respect to Justin and Courtney included the following statement:
[J.M.K. and her husband] attended the Permanency Plan Meeting on
July 25, 2011 and were advised at that meeting that willful failure to visit or
contribute to the support of the child for four (4) consecutive months was
grounds for termination of parental rights when Latricia Halls reviewed the
Criteria and Procedure for Termination of Parental Rights with them.
The Petition to Terminate Parental Rights DCS filed with respect to Eva in July 2012
included a similar statement:
[J.M.K. and her husband] have attended the Permanency Plan Meeting
on their children, Courtney and Justin on July 25, 2011 and were advised at
that meeting that willful failure to visit or contribute to the support of the child
for four (4) consecutive months was grounds for termination of parental rights
when Latricia Halls reviewed the Criteria and Procedure for Termination of
Parental Rights with them. They have not attended any meetings or court
proceedings on Eva since the First Appearance in her case.
The record does not reflect J.M.K. filed a response to either petition denying these
statements. Nor did she assert at any time either at trial or prior to her appeal that the notice
requirements of § 37-2-403 had not been followed in any respect. In addition, J.M.K.’s
attorney did not question J.M.K. or DCS’s representative at trial about whether J.M.K. had
been informed as to the definition of abandonment or the procedures for termination of
parental rights.
“Issues not raised in the trial court cannot be raised for the first time on appeal.”
Correll v. E.I. DuPont de Nemours & Co., 207 S.W.3d 751, 757 (Tenn. 2006) (quoting
Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991)). J.M.K. has
thus waived her right to argue on appeal that proper notice was not given to J.M.K. of the
effects of abandoning her children.
Finally, the notice provisions of Tenn. Code Ann. § 37-2-403 only come into play
when a parent’s termination is based on abandonment. State Dep’t of Children’s Servs. v.
K.W.C., 2007 WL 2198593, at *9 (Tenn. Ct. App. Aug. 1, 2007). The notice of grounds is
limited to abandonment. Since we affirm the trial court’s termination of J.M.K.’s parental
rights on a ground other than abandonment, this notice requirement irrelevant in any event.
C. J.M.K. Failed to Comply Substantially with the Permanency Plans
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The trial court terminated J.M.K.’s parental rights on the grounds of 1) abandonment;
2) substantial noncompliance with the permanency plans; and 3) the conditions that led to
the children’s removal still persisted, these conditions were unlikely to be remedied, and
continuing J.M.K.’s parental relationship with the children greatly diminished their chances
of integration into a stable home. Proof of just one of these grounds by clear and convincing
evidence will support the termination of J.M.K.’s parental rights. In re Angela E., 303
S.W.3d 240, 251 (Tenn. 2010); In re Valentine, 79 S.W.3d at 546.
The statutory provision creating a ground for termination based upon noncompliance
with a permanency plan states:
There 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).
J.M.K. contends the trial court found J.M.K. failed to comply substantially with a
number of requirements of the permanency plans, but that the court failed to specify which
permanency plans, and which specific requirements, she failed to comply with.
The trial court stated the following in its order terminating J.M.K.’s parental rights:
After the children came into state’s custody, DCS created a permanency
plan for the children and family. Plans were created after Justin and Courtney
came in to custody in July 2010 and when Eva entered custody in February
2012. The permanency plans listed a number of requirements that Respondent
needed to satisfy before the children could safely be returned home.
The responsibilities for [J.M.K.] were reasonably related to remedying
the reasons for foster care.
[J.M.K.] has not substantially complied with the responsibilities and
requirements set out in the permanency plans. DCS made reasonable efforts
to help [J.M.K.] to satisfy the requirements in the permanency plan.
When an individual’s parental rights are terminated for substantial noncompliance
with a permanency plan, there must be a determination that the requirements of the
permanency plan are “reasonable and related to remedying the conditions that necessitate
foster care placement.” In re Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. § 37-2-
403(a)(2)(c)); see In re M.J.B. and M.W.S., Jr., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004)
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(same). In addition, a parent-child relationship will not be terminated unless the parent’s
noncompliance is substantial, measured by both the degree of noncompliance and the weight
assigned to the particular requirements. “[N]oncompliance 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 will be deemed to be ‘substantial.’” In re Z.J.S.
and M.J.P., 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003).
The trial court expressly found that J.M.K.’s responsibilities under the permanency
plans “were reasonably related to remedying the reasons for foster care.” J.M.K. does not
question this finding, and we agree with the trial court’s determination on this issue. The
second permanency plan was developed after J.M.K.’s children were removed from the trial
home visit because J.M.K. was too intoxicated to care for them, among other reasons. In
addition to the basic requirements of being able to support her children and provide them
with a stable home with running water and electricity, the second, third, and fourth
permanency plans required J.M.K. to address her problems with alcohol and have a legal
means of income. There requirements are clearly reasonably related to remedying the
conditions that led to J.M.K.’s children being placed in foster care.
Ms. Halls testified that J.M.K. did not satisfy any of the requirements of the second,
third, or fourth permanency plans, and J.M.K. did not introduce any evidence suggesting she
complied with any of the requirements. She argues, instead, that her health and poverty
prevented her from paying support.
Evidence was introduced that J.M.K. suffered from a health problem that made it
uncomfortable to walk, but Ms. Halls testified she offered to provide bus passes to J.M.K.
and also offered to give her rides to assist her in meeting her obligations under the
permanency plans.4 There was also evidence that J.M.K. suffered from a bipolar disorder,
but J.M.K. testified she was taking medication for this condition. Of course, the requirement
of support was only one of the requirements in the plans.
Ms. Halls testified she gave J.M.K. information about obtaining housing with the
assistance of an organization called Community Action, but no evidence was introduced that
J.M.K. ever contacted this organization or took other steps to obtain housing for her and her
children. Ms. Halls also testified she provided J.M.K. with a free cell phone with 250
minutes per month. J.M.K. introduced no evidence indicating she took any steps to find
4
The children’s father took advantage of the opportunity to get bus passes one time, but J.M.K. never
requested any passes.
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either housing or a job.5
Based on the evidence introduced at trial, we affirm the trial court’s finding that DCS
has established J.M.K.’s noncompliance with the requirements of the second, third, and
fourth permanency plans by clear and convincing evidence.
D. Best Interests of the Children
Having concluded that grounds exist to terminate J.M.K.’s parental rights to Justin,
Courtney, and Eva, we next consider whether it is in the best interests of the children to
terminate J.M.K.’s rights.6 DCS has the burden of proving by clear and convincing evidence
that termination of J.M.K.’s parental rights is in the best interest of the children. In re Angela
E., 303 S.W.3d at 250.
The legislature has codified certain factors that courts are to consider in ascertaining
whether it is in a child’s best interest to terminate a parent’s rights:
(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;
5
The trial court’s findings, which are supported by the record, included the following:
The Department made reasonable efforts for two years to engage the mother,
[J.M.K.] to rectify the situation that brought the children into care. [J.M.K.] has not availed
herself of the services offered by the Department even though the Department offered her:
unlimited visitation with her children at their daycare; bus passes; helped her obtain a free
cell phone to stay in touch with the Department; and even sent the children on a trial home
visit, which was disrupted due to the parents’ continued intoxication and Justin found
wandering the street unsupervised.
6
J.M.K. raises this as an issue on appeal, but she failed to present any argument on this issue in her
brief. Although J.M.K. waives this argument by failing to brief the issue, we exercise our discretion to
address the issue due to the gravity of the determination.
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(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
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care for
the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to §36-5-101.
Tenn. Code Ann. § 36-1-113(i).
The trial court considered these factors and found the following:
2. The Respondent, [J.M.K.] has not made changes to her conduct or
circumstances that would make it safe for the children to go home.
Specifically, Justin and Courtney have had no contact with [J.M.K.] since
December 3, 2011; Eva has had no contact with [J.M.K.] since February 24,
2012; [J.M.K.] is not in compliance with the permanency plan; and [J.M.K.]
is incarcerated.
3. The Respondent, [J.M.K.] has not made lasting changes in her
lifestyle or conduct after reasonable efforts by the state to help, so that lasting
change does not appear possible. Despite the reasonable efforts from the state
for a period of almost two years, [J.M.K.] knew her children were in state
custody, yet she has made no effort to visit, support or establish a relationship
with them.
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4. The Respondent, [J.M.K.], has not maintained regular visitation with
the children such that a parent-child bond remains.
5. The Respondent, [J.M.K.] has shown little or no interest in the
welfare of the children and has abandoned the care of the children to the state.
6. Latricia Halls testified that the children are in a foster home that
loves them and wishes to adopt them.
The evidence supports these findings. Further, J.M.K. was arrested for domestic
violence when the children were initially removed from the home and was arrested for DUI,
burglary, vandalism, and two other probation violations after the children were removed.
Justin and Courtney have not lived with J.M.K. since July 2010 (other than two short-lived
home trial visits), and Eva has never lived with J.M.K.
For all of these reasons, we conclude DCS has proved by clear and convincing
evidence that terminating J.M.K.’s parental rights to Justin, Courtney, and Eva is in the
children’s best interests. We therefore affirm the trial court’s judgment.
IV. C ONCLUSION
For the reasons stated above, we affirm the trial court’s judgment terminating J.M.K.’s
parental rights to Justin, Courtney, and Eva. Costs of this appeal shall be taxed to the
appellant, J.M.K.
____________________________
PATRICIA J. COTTRELL, JUDGE
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