In Re Ayden J.C. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 17, 2014 Session
IN RE AYDEN J. C.1
Appeal from the Juvenile Court for Union County
No. 8397 Hon. Darryl Edmondson, Judge
No. E2013-02644-COA-R3-PT-FILED-SEPTEMBER 15, 2014
This is a termination of parental rights case in which the Tennessee Department of Children’s
Services filed a petition to terminate Parents’ parental rights to the Child. The trial court
found that clear and convincing evidence existed to support the termination on the statutory
grounds of abandonment for failure to remit support, substantial noncompliance with the
permanency plans, and the persistence of conditions which led to removal. The court further
found that termination of each parent’s parental rights was in the best interest of the Child.
Parents appeal. We reverse the court’s termination of Father’s parental rights for failure to
remit child support. We affirm the court’s termination of parental rights in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Reversed in Part; 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.
Andrew J. Crawford, Knoxville, Tennessee, for the appellant, Lillian A. C.
Clarence E. Pridemore, Jr., Knoxville, Tennessee, for the appellant, Joshua C.
Robert E. Cooper, Jr., Attorney General and Reporter, and Jordan Scott, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of
Children’s Services.
Kevin B. Fox, Knoxville, Tennessee, guardian ad litem for the minor, Ayden J. C.
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
Ayden J. C. (“the Child”) was born to Lillian A. C. (“Mother”) and Joshua C.
(“Father”) in June 2010. Mother was sixteen years old at the time of the Child’s birth, while
Father was unavailable to parent the Child due to his incarceration at various times
throughout the Child’s life. The Child was born with gastroschisis, a condition in which his
stomach and intestines were formed outside of his body. As part of his reparative treatment,
his organs were wrapped in a sac and gently pushed back into his body over the course of
several weeks. Once his organs were properly positioned, he developed pneumatosis, an air
sac in his abdomen that was potentially fatal.
The Child was finally discharged from the hospital two months after his birth. Shortly
thereafter, he returned to the hospital after having fallen out of his grandmother’s bed. He
suffered from a right parietal skull fracture as a result of the fall. Approximately five months
later, his grandmother dropped him while sleeping with him in her arms at the hospital. The
next day, a nurse observed Mother sleeping with the Child in her arms. The nurse advised
Mother that the Child needed to sleep alone in his crib for his safety. Hours later, the nurse
returned to find Mother sleeping with the Child in her arms again. When Mother continued
to sleep with the Child, despite being advised against such behavior, a meeting was arranged
wherein the Child’s doctor again advised Mother of the potential harm given the Child’s
fragile state. Despite the meeting, another nurse found Mother sleeping with the Child the
next day. This time, the nurse had to unwrap the Child’s IV cord from around his neck.
Mother remained adamant that her behavior was not harmful and stated her intention to
continue sleeping with the Child once he was discharged from the hospital.
Following the Child’s discharge from the hospital, Mother failed to return the Child
to the hospital for his scheduled appointments and also blatantly disregarded important
medical instructions concerning his care, namely she allowed him to drink water after being
advised that the ingestion of water could cause his death. In March 2011, the Child was
removed by the Tennessee Department of Children’s Services (“DCS”) as a result of
Mother’s refusal to comply with medical advice and Father’s inability to care for the Child
due to his incarceration. Three months later, the Child was subsequently adjudicated as
dependent and neglected due to Father’s incarceration and Mother’s medical neglect and a
failed drug screen. Mother and Father (collectively “Parents”) signed the criteria and
procedures for termination of parental rights.
DCS developed a permanency plan on April 19, 2011, and another on October 26,
2011. These plans were ratified by the trial court. Pursuant to the plans, Mother was
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required to complete a mental health assessment and follow all recommendations, use
medication only as prescribed, cooperate with random drug screening, and receive necessary
medical care. Pursuant to the plans, Father was required to complete his jail sentence,
comply with the requirements of his probation, abide by the law, remain drug free, complete
an alcohol and drug assessment and follow all recommendations, cooperate with random
drug screening, secure housing and employment when he was released from jail, and remit
child support in the amount of $100 per month.
In March 2012, the Child was returned to Parents for a 90-day trial home placement
as a result of their compliance with the permanency plans. Three months later, the Child was
returned to DCS custody when Parents failed their respective drug screens and it was
discovered that the Child had missed several important medical appointments while in their
care. Father also violated his probation and incurred new criminal charges on September 14,
2012, when a police officer stopped Parents and found a syringe containing cocaine and
methamphetamine under the passenger seat of the car. Father admitted ownership of the
syringe and was taken into custody.
To address the return of the Child to DCS custody, DCS developed a new permanency
plan on November 20, 2012. This plan was also ratified by the trial court. The plan required
Mother to remit child support,2 use medication only as prescribed, complete an alcohol and
drug assessment and follow all recommendations, cooperate with random drug screening, and
follow the recommendations of her previously-completed mental health assessment. The
plan required Father to remit child support, provide a safe and stable home environment,
refrain from the abuse of drugs or alcohol, cease illegal activities, and complete an alcohol
and drug assessment while in jail, if possible.
DCS filed a petition to terminate each parent’s parental rights to the Child on February
8, 2013. DCS alleged that Parents had abandoned the Child by failing to remit child support
and by failing to provide a suitable home, that they had failed to substantially comply with
the permanency plans, and that the conditions which led to removal persisted. A hearing was
held at which several witnesses testified.
Beth Miracle, a foster team leader with DCS, testified that she first worked with the
Child in 2010, when he was referred for medical neglect. She related that the 2010 case was
eventually resolved but that she opened a new case in February 2011, when he was referred
for medical neglect and lack of supervision. She recalled that Mother failed her drug screen
on June 22, 2011, the day of the adjudicatory hearing, and that the Child was adjudicated as
2
Mother had not previously been required to remit child support because she had not yet reached the age of
majority.
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dependent and neglected and placed in foster care. She conceded that Mother claimed to
have a valid prescription but asserted that Mother failed to produce the prescription upon
request. She acknowledged that she had not tested Mother prior to the adjudicatory hearing
and that she did not have reason to believe that Mother was abusing drugs prior to her receipt
of the failed drug screen.
Terri Devaney, a case manager with DCS, testified that she was assigned to the
Child’s case from March 2011 until November 2012. Relative to Mother, she testified that
Mother had only remitted a total of $54 in child support, despite a short period of
employment at Burger King and then at Wal-Mart in the four months prior to the filing of the
termination petition. She acknowledged that Mother injured her hip in January 2013 and
needed the assistance of a walker for mobility. She asserted that Mother either missed her
appointment or refused to provide a urine sample for several of her scheduled drug screens.
She acknowledged that Mother completed an alcohol and drug assessment in July 2012 but
stated that the facility was unable to provide a recommendation because Mother could not
provide a urine sample. She conceded that Mother completed a second assessment as
required but asserted that Mother refused the treatment recommended by the facility. She
claimed that Mother simply denied the need for treatment and repeatedly requested a third
assessment. She related that she referred Mother to Youth Villages after Mother completed
her mental health assessment. She conceded that Mother was “extremely compliant” with
their services and was progressing until the program ended in September 2012. She
acknowledged that Mother also successfully addressed her own medical needs as required
by the first permanency plan.
Ms. Devaney acknowledged that Mother was in DCS custody when the Child was
removed. She conceded that she did not appoint a guardian ad litem for Mother even though
she believed that Mother’s custodian was not providing adequate supervision. She testified
that Mother never missed a visitation with the Child and that the Child enjoyed a bond with
Mother and would undoubtedly miss Mother if her parental rights were terminated. She
explained that the Child also enjoyed a strong bond with his foster family and that he had
finally readjusted to his surroundings following his short trial home placement with Mother.
She related that despite the trial home placement, the Child had resided with the foster
parents since March 2011. She conceded that Mother had physical housing for the Child but
claimed that DCS was primarily concerned about her substance abuse issues and Father’s
criminal activity.
Relative to Father, Ms. Devaney testified that when Father was not incarcerated, he
regularly visited the Child. Ms. Devaney testified that Father was incarcerated from
September 2012 until May 2013, well after the termination petition was filed. She related
that in the four months preceding the filing of the termination petition, Father remitted
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approximately $92 in child support. She acknowledged that Father’s child support was paid
pursuant to a garnishment order and that approximately $23 was garnished from each
paycheck he received. She had no knowledge concerning the rate of pay Father received but
opined that Father was clearly able to work. She acknowledged that Father completed his
alcohol and drug assessment and that he was not required to seek further treatment and that
he had not failed a drug screen since June 2012. However, Father refused to take a drug test
in August 2012.
Relative to DCS’s efforts in assisting Parents, Ms. Devaney claimed that she had
trouble communicating with Parents and that they often missed the Child’s medical
appointments. She explained that she assisted Mother in setting up medical appointments
for the Child on a regular basis and that she even made appointments for Mother. She
conceded that Mother was not informed of emergency appointments or appointments
scheduled by the foster mother. She acknowledged that the trial court admonished DCS for
failing to assist Mother in scheduling a second alcohol and drug assessment and refused to
find that DCS had expended reasonable efforts at that time. She explained that she requested
funds for Mother to complete a second assessment and that she provided Mother with
pertinent information to follow through with the assessment. She claimed that Mother
erroneously reported that the facility would not accept her insurance even though she
personally confirmed that Mother’s insurance was acceptable. She stated that her additional
request for funds was denied because Mother had insurance. She recalled that DCS hosted
multiple child and family team meetings, that DCS made several referrals for the required
alcohol and drug assessments, assisted Parents during the trial home visit, and at times,
provided in-home services.
Winter Ford, a family services worker with DCS, testified that she was first assigned
to the case in April 2013, after the termination petition had been filed. She acknowledged
that Mother had injured herself at some point but asserted that Mother appeared fine when
she observed a visitation several weeks later. She assisted Mother in scheduling a third
alcohol and drug assessment because Mother disagreed with the recommendations from the
second assessment. She recalled that following the third assessment, the facility
recommended that Mother complete alcohol and drug treatment. Despite the facility’s
recommendation, Mother never completed treatment and was adamant that she did not have
a drug problem. She acknowledged that she never provided Mother with a specific referral
for treatment. She stated that Mother failed to attend a scheduled drug screening in July 2013
and that Mother failed a drug screen in August 2013 and was unable to provide a current
prescription. She attempted to visit Mother’s residence, but Mother cancelled the visit and
had not rescheduled. She acknowledged that she was in the process of increasing Mother’s
visitation time with the Child and that Mother’s visits were therapeutic in nature, meaning
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that DCS was hopeful that Mother could regain custody. She related that the Child’s health
had improved and that the Child no longer needed intensive medical treatment.
Ms. Winter acknowledged that she maintained little contact with Father because
Father was incarcerated when she was assigned to the case. She related that Father was
released in May 2013 and that she last spoke with him in June or July 2013, when Father was
living in a halfway home. She believed that Father had moved out of the halfway home, but
she had not visited the new residence. She admitted that she did not assist Father with
finding suitable housing and that she had not even scheduled a recent drug screen or attended
Father’s visitation with the Child.
Kristy Troutman, a clinical supervisor for Health Connect America (“Health
Connect”), a for-profit agency that provides alcohol, drug, and mental health treatment,
testified that she received two referrals from DCS regarding Mother. She related that she
performed an alcohol and drug assessment on Mother in December 2012. She claimed that
Mother passed her drug screen but was “very closed and guarded in the assessment.” She
recommended treatment because Mother had previously failed drug screens and because
Mother admitted past drug use. She completed the second alcohol and drug assessment in
May 2013. She recalled that Mother was late, appeared “sluggish” and “drowsy,” and
“nodded off a couple of times while filling out the paperwork.” She stated that Mother was
unable to complete a portion of the testing because of her tardiness. She explained that she
completed the clinical interview and a drug screen. She stated that Mother failed the drug
screen but had a prescription for two of the three drugs that appeared in the results. As a
result of the interview and testing, she recommended that Mother receive alcohol and drug
treatment.
Leanne Goldstein, the clinical manager at Foothills Care, Inc. (“Foothills”), which
provides therapeutic visitation, counseling, and other services for families, testified that she
received a referral to provide therapeutic visitation and parenting services for Mother and the
Child in May 2013. She recalled that Mother was often late for visitation and “spent a lot
of time outside smoking on the porch by herself or with her mother.” She stated that Mother
often blamed others for her problems and contradicted herself when providing excuses for
her behavior. She related that Mother failed a drug screen in June 2013 and was unable to
provide a urine sample for another drug screen in July 2013. She also attempted to provide
parenting education for Mother, who was either late, left early, or failed to appear for the
scheduled sessions. She conceded that Mother participated in one full parenting education
session during her last visit. She acknowledged that Mother’s inability to participate was
partially caused by her mother’s interference and others that were present in the home. She
opined that based upon her interactions with Mother, she did not believe that Mother was
capable of parenting the Child in the near future. She explained that Mother was successful
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in exhibiting proper parenting skills only when she was fully attentive to the Child’s needs
and not distracted by others. She acknowledged that she never worked with Father.
Joseph N. (“Foster Father”) testified that he was the Child’s great-uncle and had
served as his foster father for approximately two and a half years. He related that he and his
wife loved the Child and enjoyed a bond with the Child as a result of their extended time
parenting the Child. He stated that they had the financial resources to provide for the Child’s
needs and that their home was suitable for the Child. He claimed that he and his wife
intended to adopt the Child.
Mother, who was 19 years old at the time of the hearing, testified that she became
pregnant with the Child when she was 15. She claimed that at times, DCS failed to inform
her of the Child’s medical appointments and that the Child was not with her when he missed
appointments during his trial home placement. She related that she had signed every medical
release that was necessary for DCS to possess. She believed that DCS did not give her a fair
opportunity to regain custody of the Child and that Ms. Troutman was “hateful” and
“standoffish” toward her during her assessment. She asserted that she was willing to take
another alcohol and drug assessment from another facility and claimed that she would
comply with that facility’s results. She asserted that she could provide a suitable home for
the Child, despite DCS’s failure to assist her in regaining custody of the Child. She
expressed love for the Child and claimed to enjoy a very strong bond with the Child. She
asserted that she was willing to do anything to regain custody of him.
Relative to her employment, Mother acknowledged that she had previously worked
at Burger King for approximately one month and that she later worked at Wal-Mart for
approximately six weeks, beginning in October 2012. She claimed that she was unable to
work after she injured her hip in January 2013. She acknowledged that she was present when
Father was arrested for possession of drugs and drug paraphernalia in September 2012 and
that she refused to submit to a drug screen three days after Father’s arrest. She explained that
she intended to schedule a drug screen with her physician but that she later learned that her
physician would not provide a drug screen. Despite her positive drug screens, she denied
having a drug problem. She claimed that DCS denied her request for a new drug screen on
at least one occasion when she believed the results were erroneous. She explained that she
was required to take a number of valid prescriptions for her numerous health issues. She
identified her medical records, which included various prescriptions, dated January 2013
through April 2013.
Following the presentation of the above evidence, the trial court terminated each
parent’s parental rights on the statutory grounds of abandonment for failure to support,
substantial noncompliance with the permanency plans, and the persistence of conditions
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which led to removal. The court also found that Mother had abandoned the Child by failing
to provide a suitable home. The court further held that termination of each parent’s parental
rights was in the best interest of the Child. This timely appeal followed.
II. ISSUES
We consolidate and restate the issues raised on appeal by Parents as follows:
A. Whether clear and convincing evidence supports the trial court’s
termination of each parent’s parental rights to the Child because of their failure
to remit child support pursuant to Tennessee Code Annotated section 36-1-
102(1)(A).
B. Whether clear and convincing evidence supports the trial court’s
termination of Mother’s parental rights to the Child because of her failure to
provide a suitable home pursuant to Tennessee Code Annotated section 36-1-
102(1)(A)(ii).
C. Whether despite reasonable efforts by DCS, clear and convincing evidence
supports the trial court’s termination of each parent’s parental rights to the
Child because of their substantial noncompliance with the permanency plans
pursuant to Tennessee Code Annotated section 36-1-113(g)(2).
D. Whether despite reasonable efforts by DCS, clear and convincing evidence
supports the trial court’s termination of each parent’s parental rights to the
Child because the conditions which led to removal persist pursuant to
Tennessee Code Annotated section 36-1-113(g)(3).
E. Whether clear and convincing evidence supports the trial court’s finding
that termination of each parent’s parental rights was in the Child’s best interest
pursuant to Tennessee Code Annotated section 36-1-113(i).
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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
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(c). “[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
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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:
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).
IV. DISCUSSION
A.
As relevant to this case, abandonment for failure to remit support means that:
(i) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent(s) or guardian(s) of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent(s) or guardian(s)
either have willfully failed to visit or have willfully failed to support or have
willfully failed to make reasonable payments toward the support of the child[.]
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Tenn. Code Ann. § 36-1-102(1)(A)(i). Likewise, when the parent is incarcerated when the
petition is filed, abandonment means that:
(iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the parent
or guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and either
has willfully failed to visit or has willfully failed to support or has willfully
failed to make reasonable payments toward the support of the child for four (4)
consecutive months immediately preceding such parent’s or guardian’s
incarceration[.]
Tenn. Code Ann. § 36-1-102(1)(A)(iv). A parent’s willful failure to support the child or
make reasonable payments toward support of 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 “means that the support, under the circumstances of the individual
case, is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B).
This court has consistently held that the term willfulness as it applies to a party’s
failure to support a child must contain the element of intent. In re Swanson, 2 S.W.3d 180,
188-89 (Tenn. 1999). Indeed, “defining abandonment as the mere non-payment of support
[is] unconstitutional because this language creates an irrebuttable presumption of
abandonment, irrespective of intent.” In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003) (citing
In re Swanson, 2 S.W.3d at 188). The element of intent utilized in termination proceedings
“does not require the same standard of culpability as is required by the penal code.” In re
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)).
Mother
Mother asserts that the trial court erred in terminating her parental rights based upon
the ground of abandonment for willful failure to remit support. She concedes that she failed
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to remit support during the statutory period but asserts that her failure to remit support was
not willful because she was unable to work as a result of a physical injury. DCS responds
that Mother was employed and able to provide support for at least a portion of the relevant
time period. DCS claims that despite Mother’s alleged injury, she remained very active and
never filed a claim for disability. The guardian ad litem likewise responds that Mother failed
to offer any medical evidence concerning her injury.
The relevant period for our consideration is the four months immediately preceding
the filing of the termination petition. Tenn. Code Ann. § 36-1-102(1)(A)(i). Since the
petition was filed on February 8, 2013, the relevant four month period would be October 8,
2012, through February 7, 2013.3 During that period, Mother admittedly failed to remit any
support, despite her employment for at least six weeks, beginning in October 2012.
According to the proof presented at trial, Mother only paid $54.00 for support during the
whole time the child was in custody and that payment was made in September prior to the
commencement of the four month period. This was not a case where a parent had numerous
expenses 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. 6, 2011)
(reversing the trial court’s decision because mother was simply unable to fulfill her child
support obligation during the relevant time period). In this case, Mother was aware of her
obligation to remit support because it was a requirement contained in the most recent
parenting plan and because she had remitted a small amount of support throughout the
Child’s placement with DCS. However, she failed to remit any support when she was
employed and offered no explanation for her failure to remit support during that time. The
only explanation offered by Mother concerns an injury that occurred in January 2013, as
evidenced by her use of a walker on February 13, 2013, and crutches in April 2013. As
previously stated, the relevant period for our consideration is October 8 through February 7.
Accordingly, we conclude that there was clear and convincing evidence to support
termination of Mother’s parental rights based upon her abandonment of the Child for her
willful failure to remit any child support during the relevant period when she was employed.
Thus, a statutory ground existed for termination of Mother’s parental rights.
Father
Father asserts that the trial court erred in terminating his parental rights based upon
the ground of abandonment for willful failure to remit support. DCS concedes that Father
3
“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).
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paid some support during the relevant time period and that the record was devoid of evidence
concerning the amount he was able to pay.
Since Father was incarcerated, the relevant period for our consideration is the four
months immediately preceding his incarceration. Tenn. Code Ann. § 36-1-102(1)(A)(iv).
Father was incarcerated on September 14, 2012. The relevant four month period would be
May 14, 2012, through September 13, 2012. During that time period, Father regularly
remitted support as a result of a garnishment order. While Father was working and obviously
receiving a paycheck, no evidence was presented to establish that his regularly submitted
payments were token in nature. Accordingly, we conclude that the trial court erred in relying
on section 36-1-102(1)(A)(iv) as a statutory ground for termination. We reverse the trial
court’s finding that termination of Father’s parental rights was appropriate based upon his
failure to remit support. This conclusion does not end our inquiry because only one statutory
ground for termination of parental rights listed in section 36-1-113(g) is sufficient to support
an order terminating parental rights when termination is in the best interest of the child. In
re Audrey S., 182 S.W.3d at 860.
B.
Mother asserts that the trial court erred in relying upon the statutory ground of
abandonment for failure to provide a suitable home when housing had never been an issue
in the case and was never addressed in the permanency plan. She likewise claims that her
alleged failure to provide a suitable home was a result of DCS’s failure to assist her. DCS
responds that it expended reasonable efforts in attempting to assist Mother in her ability to
provide a suitable home free from drug abuse. DCS claims that despite its efforts, Mother
refused to acknowledge her need for treatment.
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
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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). 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). A
“suitable home requires more than a proper physical living location.” State v. C. W., No.
E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007). It
requires that the home be free of drugs. Id.
Admittedly, Mother’s physical home was never questioned by DCS given that she
lived with different relatives throughout the entirety of the case. The three months following
the Child’s removal were spent addressing the Child’s medical neglect. It was not until the
third month following removal that DCS discovered Mother’s possible abuse of prescription
drugs. DCS spent the majority of the time addressing the major concern regarding Mother’s
care of the Child in this case: her drug abuse. Indeed, the Child’s medical issues were
resolved to the point where he is no longer in need of intensive medical care.
The efforts of DCS were frustrated by Mother’s lack of cooperation, namely she
refused to provide a urine sample for the first alcohol and drug assessment, was “very closed
and guarded” during the second assessment, and was late, appeared “sluggish” and “drowsy,”
and “nodded off a couple of times while filling out the paperwork” for the third assessment.
If Mother had simply put forth some effort in properly completing one of the three
assessments offered to her and then simply followed the recommendations, she could have
easily regained custody of the Child. Instead, Mother proceeded to blame others and refused
to take any responsibility for her actions. She also refused to submit to several drug screens
and failed to provide current prescriptions to account for some of her positive drug screens.
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Her failure to properly address the issue preventing her from regaining custody of the Child
demonstrates a lack of concern for the welfare of the Child such that it was unlikely that the
conditions would be remedied at an early date. With these considerations in mind, we
conclude that the record contains clear and convincing evidence that DCS made reasonable
efforts to assist Mother in providing a suitable home and that the evidence does not
preponderate against the court’s finding that a second statutory ground existed for
termination of her parental rights based upon her inability to provide a suitable home.
C.
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
permanency plan, the court must weigh “both the degree of noncompliance and the weight
assigned to that particular requirement.” Id. 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.
Once a child has been removed from a parent’s home, DCS is tasked with making it
possible for the child to return home before instituting termination proceedings. Tenn. Code
Ann. § 37-1-166(a)(2). At the termination proceeding, DCS must prove by clear and
convincing evidence that reasonable efforts were made to reunite the child with the parent.
Tenn. Code Ann. § 37-1-166(b). For purposes of DCS’s involvement, the term reasonable
efforts refers to “the exercise of reasonable care and diligence by the [DCS] to provide
services related to meeting the needs of the child and the family.” Tenn. Code Ann. § 37-1-
166(g)(1). “The reasonableness of [DCS’s] efforts depends upon the circumstances of the
particular case.” In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006).
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“While [DCS’s] reunification efforts need not be “herculean,” DCS must do more
than simply provide the parents with a list of services and send them on their way.” Id.
“[DCS] employees must use their superior insight and training to assist the parents in
addressing and completing the tasks identified in the permanency plan.” Id. These
“employees have an affirmative duty to utilize their education and training to assist parents
in a reasonable way to address the conditions that led to the child’s removal and to complete
the tasks stated in the plan.” In re R.L.F., 278 S.W.3d 305, 316 (Tenn. Ct. App. 2008). In
keeping with this ideal, DCS must provide an affidavit, identifying its reasonable efforts, for
the court’s consideration. Tenn. Code Ann. § 37-1-166(c); see In re R.L.F., 278 S.W.3d at
317. However, “‘[r]eunification of a family is a two-way street, and the law does not require
[DCS] to carry the entire burden of this goal.” State Dep’t. of Children’s Servs. v. S.M.D.,
200 S.W.3d 184, 198 (Tenn. Ct. App. 2006) (quoting In re R.C.V., No. W2001-02102-COA-
R3-JV, 2002 WL 31730899, at *11 (Tenn. Ct. App. Nov. 18, 2002)). “Thus, parents desiring
the return of their children must also make reasonable and appropriate efforts to rehabilitate
themselves and to remedy the conditions that required [DCS] to remove their children from
their custody.” In re Giorgianna H., 205 S.W.3d at 519.
Mother
Mother asserts that she was in substantial compliance with the final permanency plan
and that her compliance far exceeded DCS’s efforts when DCS failed to provide Mother with
a referral to a treatment program and allowed substantial time to pass between the creation
of the second and third permanency plans. Mother claims that despite her compliance, the
plans were not reasonably related to remedying the conditions which led to the Child’s
removal, namely medical neglect. DCS responds that the requirements contained in the
permanency plans were reasonable and related to the conditions which led to removal. DCS
asserts that while Mother completed some of the requirements, she was not in substantial
compliance with the permanency plans’ central obligations designed to achieve reunification.
The guardian ad litem responds that despite reasonable efforts by DCS, Mother simply failed
to substantially comply with the requirements of the permanency plans.
Here, Mother was required to complete a mental health assessment and follow all
recommendations, complete an alcohol and drug assessment and follow all recommendations,
use medication only as prescribed, cooperate with random drug screening, receive necessary
medical care, and remit child support. We believe that these requirements were reasonable
and related to remedying the conditions that led to the Child’s removal and that ultimately
resulted in his inability to return home. The Child was initially removed from Mother as a
result of her continued medical neglect. However, the Child remained in custody as a result
of Mother’s failed drug screens and refusal to receive treatment.
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Mother completed some of the action steps contained in the plans, namely she
completed a mental health assessment and followed the recommendations from that
assessment, she received necessary medical care, and she completed an alcohol and drug
assessment. However, she failed to regularly remit child support. More importantly, she
failed to address the primary issue that prohibited her reunification with the Child, namely
her alleged drug abuse. As previously stated, any efforts expended by DCS were frustrated
by Mother’s lack of cooperation and refusal to accept responsibility for her actions. Mother
was uncooperative in each of the three alcohol and drug assessments, she refused to submit
to several drug screens, and she failed to provide current prescription information to account
for some of her positive drug screens.
In an attempt to assist Mother in her reunification efforts, DCS conducted at least 12
child and family team meetings, provided Mother with three referrals for three separate
alcohol and drug assessments, provided therapeutic visitation and parenting education, and
coordinated dozens of urine drug screens. Mother asserts that DCS was to blame for her
failure to receive treatment because DCS never offered a referral for drug treatment.
However, at trial, she disagreed with the findings from the second and third assessments and
claimed that she was entitled to a fourth assessment because Ms. Troutman was obviously
biased against her. She asserted that she would only comply with the recommendations from
a fourth assessment if it were provided by a different facility. Mother’s testimony at trial was
indicative of her uncooperative and defiant behavior throughout the entirety of her
involvement with DCS. With these considerations in mind, we conclude that DCS made
reasonable efforts to assist Mother and that while Mother attempted to comply with some of
the requirements, the trial court’s finding that Mother was in substantial noncompliance with
the permanency plan is supported by clear and convincing evidence. Thus, a third statutory
ground existed for termination of Mother’s parental rights.
Father
Father asserts that he was in substantial compliance with the permanency plans and
that he had managed his substance abuse issues to the best of his ability. He claims that his
failure to obtain suitable housing was a result of DCS’s lackluster efforts in providing
assistance. DCS concedes that it failed to assist or even contact Father after his release from
jail and does not defend the termination of Father’s parental rights. The guardian ad litem
responds that Father failed to substantially comply with the requirements of the permanency
plans when he engaged in illegal activity in September 2012. He claims that DCS cannot be
held at fault for Father’s failure to abide by the law.
Here, Father was required to comply with the requirements of his probation, abide by
the law, refrain from the abuse of drugs or alcohol, complete an alcohol and drug assessment
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and follow all recommendations, cooperate with random drug screening, secure housing and
employment when he was released from jail, and remit child support in the amount of $100
per month. We believe that these requirements were reasonable and related to remedying the
conditions that led to the Child’s removal and that ultimately resulted in his inability to return
home. The Child was initially removed from Father as a result of his inability to parent the
Child due to his incarceration. The Child remained in custody as a result of Father’s failed
drug screens and continued inability to abide by the law.
Father completed some of the action steps contained in the plans, namely he
completed an alcohol and drug assessment and regularly remitted child support. However,
he failed to address the primary issue that prohibited his reunification with the Child, namely
his inability to abide by the law. DCS assisted Father by providing drug screens, which he,
at times, failed or refused to take, and by providing an alcohol and drug assessment. We
acknowledge that DCS’s interaction with Father was limited; however, we fail to see what
additional efforts DCS could have expended due to his repeated criminal behavior while the
Child languished in DCS custody. Indeed, Father was not released from jail until after the
termination petition had already been filed. With these considerations in mind, we conclude
that DCS made reasonable efforts to assist Father and that while Father attempted to comply
with some of the requirements, the trial court’s finding that Father was in substantial
noncompliance with the permanency plan is supported by clear and convincing evidence.
Thus, a statutory ground existed for termination of Father’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;
(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
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(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.
The Child was initially removed as a result of Mother’s medical neglect and Father’s
inability to parent the Child as a result of his incarceration. Once it was discovered that
Parents struggled with drug addiction, the Child remained in custody while Parents were
seemingly provided with time to combat their addictions and Father resolved his legal issues.
Parents’ testimony at trial reflected that the conditions which led to removal persisted and
that “other conditions that in all reasonable probability would cause the child to be subjected
to further abuse or neglect” persisted. Mother denied that she ever struggled with drug
abuse, despite receiving two recommendations for drug treatment. Mother never accepted
full responsibility for her actions and questioned the reliability of the drug screens and the
assessments. Likewise, Father allowed the Child to languish in DCS custody for years while
he continued in his illegal behavior. 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 despite reasonable efforts by DCS,
persistent conditions were established by clear and convincing evidence; that continuation
of the parent-child relationship would greatly diminish the Children’s integration into a safe,
stable, permanent home; that a fourth statutory ground existed for termination of Mother’s
parental rights to the Child; and that a second statutory ground existed for termination of
Father’s parental rights to the Child.
E.
Having concluded that there was clear and convincing evidence supporting at least
one statutory ground to terminate each parent’s parental rights, we must consider whether
termination of their 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:
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(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 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
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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).
Mother
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 refusal to accept responsibility for her actions. Tenn. Code Ann. § 36-1-113(i)(1), (2).
The Child resides in a safe and stable foster home that expressed a desire to adopt him.
Tenn. Code Ann. § 36-1-113(i)(5). Questions remain as to whether Mother can provide a
safe and stable home free from drug abuse. Tenn. Code Ann. § 36-1-113(i)(7). Mother has
failed to regularly remit child support. Tenn. Code Ann. § 36-1-113(i)(9). We acknowledge
that Mother obviously cared for the Child. However, her inability to accept responsibility
for her actions place doubt upon her ability to effectively parent the Child in the near future.
The Child needs permanency and stability, which he can receive from the foster parents who
have successfully parented him while Mother allowed the Child to languish in custody. With
all of the above considerations in mind, 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. Accordingly, we affirm the decision of the trial court.
Father
A number of the best interest factors weigh against Father. He had not made the
adjustment of circumstances necessary to provide a stable home for the Child. Tenn. Code
Ann. § 36-1-113(i)(1). Father only maintained sporadic visitation with the Child as a result
of his incarceration. Tenn. Code Ann. § 36-1-113(i)(3). The Child resides in a safe and
stable foster home that expressed a desire to adopt him. Tenn. Code Ann. § 36-1-113(i)(5).
Questions remain as to whether Father can provide a safe and stable home free from drug
abuse and illegal activity. Tenn. Code Ann. § 36-1-113(i)(7). With all of the above
considerations in mind, we conclude that there was clear and convincing evidence to
establish that termination of Father’s parental rights was in the best interest of the Child.
Accordingly, we affirm the decision of the trial court.
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V. CONCLUSION
The judgment of the trial court is reversed as to the termination of Father’s parental
rights based upon his willful failure to remit child support. The judgment of the trial court
is affirmed in all other respects. The case is remanded for such further proceedings as may
be necessary. Costs of the appeal are taxed equally to the appellants, Lillian A. C. and
Joshua C.
______________________________________
JOHN W. McCLARTY, JUDGE
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