IN RE: KAMBRI P. ( 2020 )

06/04/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 4, 2020
IN RE: KAMBRI P. ET AL.
Appeal from the Juvenile Court for Dickson County
No. 10-18-134-DN Michael Meise, Judge
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No. M2019-01352-COA-R3-PT
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This is a termination of parental rights case. Appellants, mother and father, appeal the
trial court’s termination of their respective parental rights to the two minor children. The
court terminated mother’s parental rights on the grounds of: (1) abandonment by failure
to provide a suitable home; (2) failure to substantially comply with the requirements of
the parenting plans; and (3) persistence of the conditions that led to the children’s
removal. The trial court terminated father’s parental rights on the grounds of: (1)
abandonment by failure to provide a suitable home; (2) abandonment by an incarcerated
parent by wanton disregard; (2) persistence of the conditions that led to the children’s
removal; and (3) severe child abuse. The trial court also found that termination of
appellants’ parental rights was in the children’s best interest. Discerning no error, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and RICHARD H. DINKINS, J., joined.
Blake C. Kruse, Dickson, Tennessee, for the appellant, Roman P.1
Tammy L. Hassell, Charlotte, Tennessee, for the appellant, Brittney S.
Herbert H. Slatery, III, Attorney General and Reporter, and Jeffrey D. Ridner, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
OPINION
I. Background
Brittney S. (“Mother”) and Roman P. (“Father,” and together with Mother,
“Appellants”) are the biological parents of the minor children, Kambri P. (d.o.b.
September 2014) and Jasmine P. (d.o.b. November 2016) (together the “Children”).
Appellee Tennessee Department of Children’s Services (“DCS”) became involved with
this family on July 17, 2017, when it received a referral alleging that the Children and
their half-siblings, Nichole and Delila,2 were inadequately supervised and possibly
exposed to drugs. At the time, Mother, Father, and the Children were living with Nichole
and Delila’s father, Ray S.
During the initial DCS investigation, Mother disclosed that she drank alcohol,
smoked marijuana, and took Suboxone that she received from a neighbor.3 DCS
administered a drug test, and Mother tested positive for Suboxone. Father admitted that
he drank alcohol, smoked marijuana, and also took the Suboxone from the neighbor.
Father tested positive for marijuana and Suboxone. At the conclusion of this first
interaction, Mother and Father agreed to participate in services offered by DCS.
Ten days later, on July 27, 2017, DCS received a second referral alleging sexual
abuse of Nichole by Father. During a forensic interview, Nichole disclosed that Father
touched her inappropriately. Father subsequently pled no-contest to aggravated sexual
battery of Nichole and received a six year sentence.
DCS received a third referral on August 12, 2017. By that time, Mother, Father,
and the Children had left Ray S.’s home and were living in a motel. Law enforcement
was called to the motel after the Children were discovered by housekeeping. The
Children were alone with Father, who was asleep. An empty vodka bottle was found on
the nightstand.
As a result of these referrals and interactions with the family, DCS filed a Petition
for Order Controlling Conduct and for Protective Supervision in the Juvenile Court of
Dickson County (“trial court”) on October 5, 2017. The Children were not removed at
this time. Before an adjudicatory hearing could be held, the guardian ad litem moved the
trial court to review the case because Mother had been non-compliant with services, the
whereabouts of the Children were unknown, and DCS was unable to contact Appellants.
Based on the motion and concerns that Father committed severe abuse, the trial court
2
The Children’s half-siblings, Nichole S. and Delila S., were included in the underlying
dependency and neglect proceeding until custody was placed with their father, Ray S. Accordingly,
Nichole S. and Delila S. are not included in the termination action.
3
Suboxone is an opioid.
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found probable cause that the Children were dependent and neglected and entered an
order granting temporary custody to DCS on December 6, 2017.
The first family permanency plan was created on January 3, 2018 with a goal of
returning the Children to their parents. Neither parent was present for its formation.
However, after Father was incarcerated in December of 2017, the DCS case manager
came to the jail, reviewed the permanency plan with him, and asked him to participate in
available services. Under the plan, both parents were required to: (1) pay $50.00 per
month in child support; (2) complete drug and alcohol assessments and follow all
recommendations; (3) complete mental health assessments and follow all
recommendations; and (4) complete domestic violence education classes. Father was also
required to submit to random drug screens and complete a psychological evaluation.
Mother had the additional requirements to: (1) participate in counseling and case
management; (2) complete a psychological evaluation; (3) obtain stable housing; (4)
submit to random drug screens; and (5) take medication as prescribed. Appellants were
allowed phone calls and supervised visits with the Children. The trial court ratified the
plan on March 14, 2018 and found that Appellants’ respective requirements were
reasonable, were related to remedying the conditions that led to the Children’s removal,
and were in the Children’s best interests. At the hearing on the petition to terminate
Appellants’ parental rights, DCS case worker, Shauna Lowry, summarized the desired
outcomes of the plan: “[t]hat the parents obtain and maintain sobriety, have stable
housing, to be able to interact appropriately, and be emotionally stable.”
Ms. Lowry reviewed the permanency plan obligations with Mother on multiple
occasions and provided her a copy of the criteria and procedures for termination of
parental rights on March 26, 2018. Ms. Lowry testified that there were multiple and
consistent reminders provided to Mother concerning her requirements under the plan and
stated: “I always made sure that [Mother] had a copy and understood the tasks and
importance of completing those tasks.” In addition, Ms. Lowry referred Mother for
services, made numerous phone calls, text messages, and face-to-face visits. Father
testified that DCS workers visited him at jail five times and acknowledged that DCS
made him aware of his responsibilities under the plans.
Mother requested assistance with detoxification in April of 2018. Ms. Lowry
made numerous telephone calls for her admission to an appropriate facility and
transported her to the facility. After the detoxification program, Mother immediately
went to a drug treatment program for continued treatment for her drug abuse, but she left
that program against medical advice. DCS administered drug screens, and offered
Mother transportation to and from appointments and visits with the Children. In 2019,
after Mother began efforts to comply with the plan, Ms. Lowry transported Mother to an
alcohol and drug assessment and a mental health appointment.
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The second family permanency plan was created on June 26, 2018. Mother
participated by phone. Because the Children had been in DCS custody for over six
months and both parents had made only minimal progress on the prior plan, the new plan
goals were changed to reunification or adoption. Appellants’ responsibilities and
requirements under the second plan remained largely unchanged from the first plan, and
the Appellants’ were given the additional requirements to not engage in illegal activity
and to follow the rules of probation and/or parole. Mother received an explanation and
copy of the criteria and procedures for termination of parental rights on March 26, 2018.
Father received an explanation and copy of the criteria and procedures for termination of
parental rights on March 14, 2018.
By order of July 16, 2018, the trial court adjudicated the Children to be dependent
and neglected and found that they were the victims of severe child abuse. The trial court
made several findings to support its determination. Both parents admitted to illegal use
of Suboxone. Father admitted that he was discovered passed out while supervising the
Children, and he acknowledged he had a drug and alcohol problem. Neither parent
complied with services provided by DCS. Mother testified she had no stable housing, had
mental health issues from her childhood, and did not believe Nichole’s disclosures of
sexual abuse by Father. Finally, the trial court found that based on Mother’s testimony
and the forensic interviews, Father had perpetrated severe child abuse pursuant to
Tennessee Code Annotated section 37-1-102. The Children remained in DCS custody,
and Mother was granted supervised visits.
Both Appellants have a history of criminal activity. On January 28, 2016, Mother
was convicted of promoting the manufacture of methamphetamine, a class D felony.
Mother received three years of probation. After the Children were removed in December
of 2017, Mother was incarcerated three times: twice for driving without a license and
once for violating the terms and conditions of her probation. As a result of her probation
violation, Mother was sentenced on May 17, 2018. Mother’s most recent incarceration
prior to trial was in November of 2018 when she was incarcerated for one day for failure
to appear. She was still on supervised felony probation at the time of the hearing on the
petition to terminate her parental rights.
In March of 2016, in Williamson County, Father was placed on probation for
initiation of the manufacture of methamphetamine. Father subsequently violated his
probation due to the allegations of sexual abuse against Nichole. Father entered a no-
contest plea to attempted aggravated sexual battery of Nichole and received a six-year
sentence. As a consequence of his plea, Father was placed on the Sex Offender Registry.
Father was initially incarcerated in the Dickson County jail from December 15, 2017
until March 11, 2019; thereafter, he was incarcerated in Williamson County where he
remained at the time of the hearing on the petition to terminate his parental rights. Father
testified that he enrolled in several programs available at the jail and claimed that he
would be released from jail within the month. However, further inquiry revealed that
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Father was being held without bond for an amended probation violation after entering the
no-contest plea to attempted aggravated sexual battery.
On October 9, 2018, DCS filed a petitioned to terminate Appellants’ respective
parental rights to the Children. The trial court heard the petition on April 22, 2019. By
order of July 19, 2019, the trial court terminated Mother’s parental rights on the grounds
of: (1) abandonment by failure to provide a suitable home; (2) substantial noncompliance
with the permanency plans; and (3) failure to remedy persistent conditions preventing
reunification. The trial court terminated Father’s parental rights on the grounds of: (1)
abandonment by failure to provide a suitable home; (2) abandonment by exhibiting a
wanton disregard for the welfare of the Children; (3) failure to remedy persistent
conditions preventing reunification; and (4) severe child abuse. The trial court also
determined that terminating the rights of both parents was in the Children’s best interests.
Mother filed her notice of appeal on July 26, 2019; Father filed his notice of appeal on
August 14, 2019.
II. Issues
We state the dispositive issues as follows:
1. Whether there is clear and convincing evidence to support at least one of the
grounds relied upon by the trial court to terminate each appellant’s respective
parental rights.
2. Whether termination of appellants’ respective parental rights is in the Children’s
best interests.
III. Standard of Review
The Tennessee Supreme Court has previously explained that:
A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect
minors....’ Tennessee law, thus, upholds the [S]tate’s authority as parens
patriae when interference with parenting is necessary to prevent serious
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harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657
S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455
U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E.,
303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute, which identifies
“‘situations in which that state’s interest in the welfare of a child justifies interference
with a parent’s constitutional rights by setting forth grounds on which termination
proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. §
36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1) the
existence of one of the statutory grounds; and (2) that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interest by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d at 546. Clear and
convincing evidence “establishes that the truth of the facts asserted is highly probable . . .
and eliminates any serious or substantial doubt about the correctness of the conclusions
drawn from evidence[,]” and “produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the facts sought to be established.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004).
In termination of parental rights cases, appellate courts review a trial court’s
factual findings de novo and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483
S.W.3d at 523-24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007)). The Tennessee Supreme Court has explained that:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at 393
(quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all
other questions of law in parental termination appeals, as in other appeals,
are reviewed de novo with no presumption of correctness. In re Angela E.,
303 S.W.3d at 246.
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In re Carrington H., 483 S.W.3d at 524.
Furthermore, if the “resolution of an issue in a case depends upon the truthfulness
of witnesses, the trial judge, who has had the opportunity to observe the witnesses and
their manner and demeanor while testifying, is in a far better position than this Court to
decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. App. 2016)
(citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). Therefore, this Court “gives
great weight to the credibility accorded to a particular witness by the trial court.” In re
Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn. Ct.
App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
IV. Grounds for Termination of Parental Rights
Although only one ground must be proven by clear and convincing evidence in
order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this
Court to review every ground relied upon by the trial court to terminate parental rights in
order to prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251
n. 14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.
A. Abandonment by Failure to Provide a Suitable Home
We begin with the ground of abandonment generally. In pertinent part, Tennessee
Code Annotated section 36-1-113(g) provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and nonexclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred . . .
Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 defines
“abandonment,” in relevant part, as follows:
(ii)(a) The child has been removed from the home or the physical or legal
custody of a parent or parents or guardian or guardians by a court order at
any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and the child
was placed in the custody of the department or a licensed child-placing
agency;
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***
(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent or parents
or the guardian or guardians to establish a suitable home for the child, but
that the parent or parents or the guardian or guardians have not made
reciprocal 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 or
guardian in establishing a suitable home for the child shall be found to be
reasonable if such efforts equal or exceed the efforts of the parent or
guardian toward the same goal, when the parent or guardian is aware that
the child is in the custody of the department;
Tenn. Code Ann. § 36-1-102(1)(A)(ii)
“A suitable home ‘requires more than a proper physical living location.’” In re
Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App. 2016) (quoting In re Hannah H., No.
E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014)). A
suitable home requires “[a]ppropriate care and attention . . . to the child.” In re Matthew
T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20,
2016). The home must also “be free of drugs and domestic violence.” In re Hannah H.,
2014 WL 2587397, at *9.
As set out in context above, Tennessee Code Annotated Section 36-1-
102(1)(A)(ii)’s definition of abandonment requires DCS to make reasonable efforts to
assist the parent to establish a suitable home. DCS’s efforts to assist the parent “may be
found to be reasonable if such efforts exceed the efforts of the parent or guardian toward
the same goal.” In re Kaliyah S., 455 S.W.3d 533, n. 34 (citing Tenn. Code. Ann. § 36-
1-102(1)(A)(ii)). “[P]arents desiring the return of their children must also make
reasonable and appropriate efforts to rehabilitate themselves and to remedy the conditions
that required the Department to remove their children from custody.” In re Shameel S.,
No. E2014-00294-COA-R3-PT, 2014 WL 4667571, at *5 (Tenn. Ct. App. 2014 (quoting
In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006), overruled on other
grounds by In re Kaliyah S., 455 S.W.3d 553 (Tenn. 2015)).
In its order terminating their parental rights, the trial court found that despite
reasonable efforts by DCS, there was clear and convincing evidence to support
termination of Mother and Father’s respective rights on the ground of abandonment by
failure to provide a suitable home, to-wit:
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Kambri and Jasmine were removed from the [Appellants’] home on
December 6, 2017. Since the children were removed, [Mother] has lived in
at least five places, was incarcerated at least 3 times, moved from place to
place, and at the time of hearing was planning on moving into yet another
home. She has used methamphetamine and suboxone throughout the time
the children have been in custody and chose not to obtain treatment as
recommended by her alcohol and drug assessment. [Father] was
incarcerated since December 15, 2017. He entered a plea of nolo
contend[e]re on April 23, 2019, to the charge of Attempted Aggravated
Sexual Abuse where his daughters’ half-sibling, who is now 8 years of age,
is the victim. Although he has participated in some classes offered at the
local jail, he has failed to provide a suitable home for his children. The
Department made reasonable efforts to assist the parents in establishing a
suitable home, including case management services, offers of random drug
screens, a psychosexual evaluation for [Father], alcohol and drug
assessment for [Mother], and transportation.
Based on the facts set forth above, the Court concludes and finds that
grounds for termination of parental rights do exist as to [Mother and Father]
by clear and convincing evidence, pursuant to T.C.A. §36-1-113(g)(1).
[Mother and Father], despite reasonable efforts from the Department, have
made no reasonable efforts themselves to provide a suitable home for their
minor children and have failed to make even minimal efforts to improve
their home and personal condition, which demonstrates a lack of concern
for the children to such a degree that it appears unlikely that they will be
able to provide a suitable home for their children at an early date.
The evidence supports the trial court’s findings. The Children’s first interaction
with DCS occurred on July 17, 2017, when DCS received a referral alleging that the
Children and their half-siblings were inadequately supervised and drug-exposed. During
the initial DCS investigation, Mother and Father admitted to drug use. Ten days later, on
July 27, 2017, DCS received a second referral alleging sexual abuse of Nichole by
Father. DCS received a third referral on August 12, 2017. DCS filed a petition on
October 5, 2017, alleging that the Children were dependent and neglected. On December
6, 2017, the Children were removed from Appellants’ custody.
Father was incarcerated at the time of the hearing on the petition to terminate his
parental rights. Before his incarceration, and as discussed below, Father failed to provide
a safe and stable home for the Children. He engaged in a transient lifestyle, participated
in illegal drug use, abused alcohol, and placed the Children in danger on numerous
occasions, i.e., Father was discovered passed out due to overuse of alcohol while the
Children were in his sole care. Due to his incarceration, Father has been unable to
establish a home. Furthermore, there is no evidence to suggest that he is free of his drug
and alcohol addiction. Father’s molestation of the Children’s half-sister evinces his
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potential to place these Children in similar danger. This is especially true in view of the
lack of evidence that Father has addressed the sexual abuse in any real or substantial way.
In short, there is no indication that Father will be able to provide a safe and suitable home
at any near date. As such, we conclude that there is sufficient evidence to support the
trial court’s termination of his parental rights on the ground of abandonment by failure to
establish a suitable home.
Turning to Mother, in the four months following the Children’s removal, DCS
made efforts to assist Mother. A permanency plan was prepared by DCS on January 3,
2018, with a goal of returning the Children to Mother’s custody. Ms. Lowry reviewed the
permanency plan obligations with Mother on multiple occasions. Ms. Lowry made
referrals for services to Mother and numerous phone calls, text messages, and face-to-
face visits with her. Mother requested assistance with detoxification in April of 2018.
Ms. Lowry arranged for Mother’s admission to an appropriate facility, and then
transported her to the facility. After the detoxification program, Mother immediately
went to a drug treatment program, but she left that program against medical advice. DCS
administered drug screens, and provided Mother with transportation to and from
appointments and visits with the Children. Despite these efforts on the part of DCS,
Mother failed to fully avail herself of the services and opportunities provided. For
example, DCS approved Mother for sixty hours of services to work on items in the
permanency plans, but she only completed eight hours. Importantly, Mother never
completed drug treatment and continued to use drugs throughout the pendency of the
case, testing positive for methamphetamine as late as November 2018. She also did not
begin mental health treatment until two months before the hearing on the petition to
terminate her parental rights. When asked why she completed so little, she answered,
“I’m not sure.” From our review, DCS’s efforts greatly exceeded Mother’s efforts. In
short, Mother wholly failed to complete the steps that could have enabled her to establish
a suitable home for the Children.
In addition to her failure to comply with counseling and treatment requirements,
the record shows that Mother did not establish a suitable physical home for herself or the
Children. From the time the Children came into DCS custody on December 6, 2017 until
the hearing in April of 2019, Mother estimated she had at least five different addresses.
After the Children were removed, Mother moved from place to place. From November of
2018 until February of 2019, Mother lived with her “boyfriend’s boss’ wife,” and then
lived with “boyfriend’s foreman and his family.” In February of 2019, Mother resided
with Nathan P., Father’s brother and her paramour; they moved from their apartment in
April due to potential eviction. At trial, Mother testified that she and Nathan P. were
temporarily residing with Nathan P.’s son in Williamson County and planned to move to
an unknown address in Portland, Tennessee. Mother provided no proof to substantiate
her testimony, and Ms. Lowry testified that Mother gave her numerous potential future
addresses that never materialized. For these reason, we conclude that there is clear and
convincing evidence to support the trial court’s termination of Mother’s parental rights on
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the ground of abandonment by failure to provide a suitable home.
B. Abandonment by Father by Wanton Disregard
Father was incarcerated from December 15, 2017 through the date of the hearing
on the petition to terminate his parental rights. Tennessee Code Annotated section 36-1-
102 defines abandonment by an incarcerated parent as follows:
(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 . . . the parent or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the child. . . .
Tenn. Code Ann. § 36-1-102(1)(A)(iv). Thus, a parent who was incarcerated during all
or part of the four months immediately preceding the filing of the termination petition can
abandon his or her children by engaging in conduct prior to the incarceration that shows a
“wanton disregard” for the children’s welfare.
We note that courts are not limited to the four-month period preceding a parent’s
incarceration to determine whether the parent has engaged in conduct evidencing a
wanton disregard for his or her children’s welfare. In re F.N.M., No. M2015-00519-
COA-R3-PT, 2016 WL 3126077, at *3 (Tenn. Ct. App. Apr. 11, 2016); see also Dep’t of
Children's Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009) (“parental
conduct exhibiting wanton disregard for a child’s welfare may occur at any time prior to
incarceration and is not limited to acts occurring during the four-month period
immediately preceding the parent's incarceration”). However, incarceration itself is not
grounds for the termination of a parent’s rights, but courts consider the incarceration a
“triggering mechanism that allows the court to take a closer look at the child’s situation
to determine whether the parental behavior that resulted in incarceration is part of a
broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm
to the welfare of the child.” In re Audrey S., 182 S.W.3d at 866.
In its order terminating Father’s parental rights, the trial court made the following
findings concerning wanton disregard:
The testimony provided at the hearing was that [Father] was
incarcerated on December 15, 2017, and remained incarcerated at the time
of the hearing, which was within four months prior to the filing of the
termination petition. He was previously incarcerated from July 15, 2015, to
March 24, 2016, when he was convicted of Initiating the Process to
Manufacture Methamphetamine. He was incarcerated on December 15,
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2017, after being charged with Aggravated Sexual Battery and
subsequently Failure to Appear and Violation of Probation warrants. He
entered a plea of nolo contend[e]re to the amended charge of Attempted
Aggravated Sexual Battery on April 23, 2019.
Based on the facts set forth above, the Court concludes and finds that
grounds for termination of parental rights do exist as to [Father], by clear
and convincing evidence, pursuant to T.C.A. §36-1-113(g)(1), because [he]
was in jail part or all of the four months just before the petition in this
matter was filed on October 9, 2018. The father has engaged in conduct that
exhibits a wanton disregard for the children’s welfare by engaging in illegal
behavior and drug use over the course of the children’s lives as set forth
above.
As set out above, the statute does not define “wanton disregard.” In re H.A.L.,
No. M2005-00045-COA-R3-PT, 2005 WL 954866, at *6 (Tenn. Ct. App. Apr. 25,
2005). Nonetheless, Tennessee courts have held that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
867-68. “Our courts have consistently held that an incarcerated parent who has multiple
drug offenses and wastes the opportunity to rehabilitate themselves by continuing to
abuse drugs, resulting in revocation of their parole and reincarceration, constitutes
abandonment of the child, and demonstrates a wanton disregard for the welfare of the
child.” Dep't of Children's Servs. v. J.M.F., No. E2003-03081-COA-R3-PT, 2005 WL
94465, at *7 (Tenn. Ct. App. Jan. 11, 2005) (citing In re C.T.S., 156 S.W.3d 18, 25
(Tenn. Ct. App. 2004)); Dep't of Children's Servs. v. J.S., No. M2000-03212-COA-R3-
JV, 2001 WL 1285894, at *3 (Tenn. Ct. App. Oct. 25, 2001); In re C.W.W., 37 S.W.3d
467, 473 (Tenn. Ct. App. 2000). Indeed, the enactment of Tenn. Code Ann. § 36-1-
102(1)(A)(iv), supra, reflects the General Assembly’s recognition that “parental
incarceration is a strong indicator that there may be problems in the home that threaten
the welfare of the child” and that “[i]ncarceration severely compromises a parent’s ability
to perform his or her parental duties.” In re Audrey S., 182 S.W.3d at 866. “The actions
that our courts have commonly found to constitute wanton disregard reflect a ‘me first’
attitude involving the intentional performance of illegal or unreasonable acts and
indifference to the consequences of the actions for the child.” In re Anthony R., No.
M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015).
As discussed above, prior to his incarceration, Father engaged in illegal drug use
and excessive use of alcohol. On at least two occasions, Father was found passed out
with the Children in his sole care. Appellants led a transient lifestyle, staying with
friends and in motels. Notwithstanding his incarceration, these actions demonstrate a
wanton disregard for the Children. However, in March of 2016, Father received
probation for initiation of the manufacture of methamphetamine. While the offense date
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for this crime occurred before Jasmine was born, Father’s violation of probation of this
conviction after her birth is pertinent to this ground. See In re Anthony R., M2014-
01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015); In re
C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct. App. 2004). The fact that Father’s violation of
probation stemmed from his sexual abuse of the Children’s half-sister is particularly
troubling. Father’s abuse of Nichole led directly to his incarceration and clearly
demonstrates a wanton disregard for the welfare of these Children. Father’s drug and
alcohol abuse, the transient nature of his lifestyle prior to incarceration, and the prurient
nature of his crime against a minor provide clear and convincing proof and more than a
sufficient basis for the trial court’s termination of his parental rights on the ground of
abandonment by wanton disregard for the welfare of the Children.
C. Mother’s Failure to Substantially Comply
with the Requirements of the Permanency Plan
The trial court found, by clear and convincing evidence, that Mother’s parental
rights should be terminated on the ground of failure to substantially comply with the
requirements of the permanency plan. Tennessee Code Annotated Section 36-1-
113(g)(2) provides that a parent’s rights may be terminated when “[t]here has been
substantial noncompliance by the parent . . . with the statement of responsibilities in a
permanency plan.”
“[T]he permanency plans are not simply a series of hoops for the biological parent
to jump through in order to have custody of the children returned.” In re C.S., Jr., et al.,
No. M2005-02499-COA-R3-PT, 2006 WL 2644371, at *10 (Tenn. Ct. App. Sept. 14,
2006). Rather,
the requirements of the permanency plan are intended to address the
problems that led to removal; they are meant to place the parent in a
position to provide the children with a safe, stable home and consistent
appropriate care. This requires the parent to put in real effort to complete
the requirements of the plan in a meaningful way in order to place herself in
a position to take responsibility for the children.
Id. As discussed by this Court in In re M.J.B., 140 S.W.3d 643 (Tenn. Ct. App. 2004):
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and
tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
113(g)(2), the Department must demonstrate first that the requirements of
the permanency plan 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 Valentine, 79 S.W.3d 539, 547 (Tenn. 2002); In re L.J.C., 124
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S.W.3d 609, 621 (Tenn. Ct. App. 2003), and second that the parent’s
noncompliance is substantial in light of the degree of noncompliance and
the importance of the particular requirement that has not been met. In re
Valentine, 79 S.W.3d at 548-49; In re Z.J.S., No. M2002-02235-COA-R3-
JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003). Trivial,
minor, or technical deviations from a permanency plan’s requirements will
not be deemed to amount to substantial noncompliance. In re Valentine,
79 S.W.3d at 548.
Id. at 656-57. The Tennessee Supreme Court has explained that
[s]ubstantial noncompliance is not defined in the termination statute. The
statute is clear, however, that noncompliance is not enough to justify
termination of parental rights; the noncompliance must be substantial.
Black’s Law Dictionary defines “substantial” as “[o]f real worth and
importance.” Black’s Law Dictionary 1428 (6th ed. 1990). In the context
of the requirements of a permanency plan, the real worth and importance of
noncompliance should be measured by both the degree of noncompliance
and the weight assigned to that requirement.
In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002).
As discussed above, Mother’s requirements under the permanency plans were to:
(1) pay $50.00 per month in child support; (2) complete drug and alcohol assessments
and follow all recommendations; (3) complete mental health assessments and follow all
recommendations; (4) complete domestic violence education classes; (5) participate in
counseling and case management; (6) complete a psychological evaluation; (7) obtain
stable housing; (8) submit to random drug screens; (9) take medication as prescribed; and
(10) not engage in illegal activity and to follow the rules of probation and/or parole. The
trial court ratified the plans and held that the requirements thereunder were reasonable
and related to remedying the reasons for the Children’s removal; this finding is not
disputed.
Concerning Mother’s failure to substantially comply with the foregoing
requirements, in its order terminating her parental rights, the trial court found:
The testimony provided was that . . . permanency plans [were]
developed throughout the entirety of this case, all of which the Court finds
were in the best interests of the minor children and all of which also
contained requirements for the parents that were reasonably related to
remedying the reasons for foster care.
The testimony from the Department was that the mother did not
pursue getting a hair follicle test despite being offered transportation and
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assistance from the Department. The mother did not follow through with
the alcohol and drug treatment program she had begun. The mother has not
maintained stable housing since the children were placed in the
Department’s custody and has had multiple residences and stayed with
various people. The mother did not have a mental health assessment as
required, despite the Department offering to assist her with obtaining this
service. The mother only took advantage of 54 hours of visitation with her
children when over 140 hours were offered to her. The mother failed to
remain in consistent contact with the Department, and there have been
periods throughout this case where the mother’s whereabouts were
unknown despite diligent search efforts from the Department.
Based on the facts set forth above, the Court concludes and finds that
grounds for termination of parental rights do exist as to [Mother], by clear
and convincing evidence, pursuant to T.C.A. §36-1-113(g)(2), because she
has not substantially complied with the responsibilities and requirements
set out for her in the permanency plans prepared in this matter over the
course of the case.
The evidence supports the trial court’s findings. As discussed above, during the
course of these proceedings, Mother was unable to obtain a suitable home for herself and
the Children. From the time the Children were removed from her custody, Mother had at
least five different addresses. At the time of the hearing, Mother was living with her
paramour, Father’s brother, and his son. Mother’s paramour was previously incarcerated
and was on probation for drug offenses. In addition, after the Children’s removal,
Mother was incarcerated three times—twice for driving without a license and once for
violating the terms of her probation. As a result of the probation violation, Mother was
sentenced on May 17, 2018. Mother’s most recent incarceration prior to trial was in
November of 2018 when she was incarcerated for one day, and she remained on
supervised felony probation at the time of the hearing.
After the Children were removed from her custody, Mother continued to use
illegal and prescription drugs, for which she had no prescription. At the hearing, Mother
acknowledged the importance of drug treatment, especially given her history, but she
maintained that she was addressing her drug abuse on her own. Although she attended
some drug education classes, she was dismissed from the program for poor attendance.
Mother never completed any drug programs. Mother tested positive for drugs several
times: April 2018; May 29, 2018; September 17, 2018; and November 5, 2018. She
refused another drug screen in January 2019. In the two months preceding the hearing on
the petition to terminate her parental rights, i.e., February and March of 2019, Mother
tested positive for methamphetamines, amphetamines, benzodiazepines, opiates, and
Suboxone. In sum, out of twenty-six requests while the case was pending, Mother failed
nine drug screens and refused another nine screens.
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On appeal, Mother asserts that DCS failed to provide reasonable efforts to help her
complete her responsibilities under the plans. In the first instance, proof of reasonable
efforts is not a precondition to termination of parental rights. In re Kaliyah S., 455
S.W.3d 533, 535 (Tenn. 2015). Nonetheless, from our review, DCS made numerous
efforts to assist Mother. As discussed above, DCS approved her for various services,
offered transportation assistance to visits, assessments, and appointments, helped with
Mother’s entrance into a detoxification facility, and provided and reviewed the
permanency plan. Unfortunately, Mother did not reciprocate these efforts. For example,
DCS approved Mother for sixty hours of services to work on items in the permanency
plans, but she only used eight hours. When asked why she did not avail herself of all of
the hours available, she answered, “I am not sure.” Furthermore, Mother never
completed a psychological evaluation. Although she admitted that she and Father had
episodes of domestic violence in front of the Children, Mother did not complete a
domestic violence education class. Mother did not complete an alcohol and drug
assessment until February 26, 2019. The assessment recommended inpatient treatment,
but Mother refused. Mother never completed any alcohol or drug treatment programs.
Mother paid some support for the children but acknowledged her payments were
behind. Her first payment was made in July of 2018, nearly eight months after the
Children were taken into DCS custody. The record shows that her payments were
inconsistent and there were gaps of time between payments.
Mother participated in mental health counseling, but not until approximately two
months before the hearing on the petition to terminate her parental rights. Mother
attended some parenting classes, but, again, not until immediately before the hearing. Ms.
Lowry, the DCS case worker, testified that Mother met none of her responsibilities under
the plan. From our review, we agree. Based on the totality of the circumstances, we
conclude that there is sufficient evidence to support the trial court’s termination of
Mother’s parental rights on the ground of failure to substantially comply with the
requirements of the permanency plans.
D. Persistence of Conditions
The trial court also found that termination of Mother’s and Father’s parental rights
was appropriate under Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly
referred to as “persistence of conditions.” In re Audrey S., 182 S.W.3d at 871. The
persistence of conditions ground focuses “on the results of the parent’s efforts at
improvement rather than the mere fact that he or she had made them.” Id. at 874. The
goal is to avoid having a child in foster care for a time longer than reasonable for the
parent to demonstrate the ability to provide a safe and caring environment for the child.
In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other
grounds by In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). Thus, the question
before the court is “the likelihood that the child can be safely returned to the custody of
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the [parent], not whether the child can safely remain in foster care.” In re K.A.H., No.
M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000).
There are several elements to the ground of persistence of conditions. When the
termination petition was filed, the ground applied as a basis to terminate parental rights
when:
(3)(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a court
order entered at any stage of proceedings in which a petition has been filed
in the juvenile court alleging that a child is a dependent and neglected child,
and:
(i) The conditions that led to the child's removal still persist, preventing the
child's safe return to the care of the parent or guardian, or other conditions
exist that, in all reasonable probability, would cause the child to be
subjected to further abuse or neglect, preventing the child's safe return to
the care of the parent or guardian;
(ii) 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 guardian
in the near future; and
(iii) 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;
(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard;
Tenn. Code Ann. § 36-1-113(g)(3)(A). Each of the statutory elements must be
established by clear and convincing evidence. In re Valentine, 79 S.W.3d 539, 550
(Tenn. Ct. App. 2002).
As discussed above, DCS filed a dependency-and-neglect petition on October 5,
2017. The trial court removed the Children from Appellants’ custody on December 6,
2017. The Children were removed because Mother was non-compliant with services, the
whereabouts of the Children were unknown, and DCS was unable to contact Mother after
Father was incarcerated for child sexual abuse.
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In its order terminating her parental rights, the trial court found:
The children have been removed, at the time of this hearing, for over
16 months. During this time and at the time of this hearing, the mother has
not established a suitable home and still has not had any alcohol and drug
treatment. The mother never followed through with the services offered to
her, including consistent visitation with the children, a hair follicle drug
test, and inpatient alcohol and drug treatment. The conditions that caused
the children to be removed from [Mother’s] custody persisted and were still
in place at the time of the hearing.
[Father] was still incarcerated as of this hearing, and had been since
December 15, 2017. He has taken some classes while incarcerated and
participated in a psychosexual evaluation, but has not established suitable
housing for the children or demonstrated he is appropriate to parent them.
His wanton disregard of the minor children’s best interests, as shown
through his continuing to incur criminal charges including a charge for
sexually abusing their half-sister, indicate that he has been more concerned
about himself and his desires than his children’s needs.
Based on the facts set forth above, the Court concludes and finds that
grounds for termination of parental rights do exist as [both Mother and
Father], by clear and convincing evidence, pursuant to T.C.A. §36-1-
113(g)(3), because it has been more than 16 months since the removal of
the children from [Mother and Father], and the conditions that led to the
removals still persist and other conditions in these homes exist that, in all
reasonable probability, would lead to further neglect or abuse of the
children.
As discussed above, Mother never obtained safe and stable housing for the
Children even though the removal was based, in part, on a lack of suitable housing. From
the time the Children came into DCS custody on December 6, 2017 until the trial in April
of 2019, Mother could not recall how many addresses she had but estimated about five.
As of February of 2019, Mother was involved with Father’s brother, who also has a
history of criminal activity involving drugs. Although Mother testified that she and
Nathan P. had procured suitable housing, she could not remember the address and
provided no proof of a lease or utilities. Nonetheless, Mother insisted: “I am successful
now. I mean I am a little late on it . . . But I’ve just now got a very decent place for them
to live.” Ms. Lowry explained that, during the pendency of this case, Mother had given
her numerous potential future addresses that never materialized.
In addition to the lack of stable housing, Mother failed to maintain sobriety even
though the Children’s removal was based, in part, on drug abuse. Mother abused drugs
throughout the case. She tested positive for illegal drugs in April 2018, May 2018,
September 2018, and November 2018. Mother did not complete an alcohol and drug
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assessment until February 26, 2019. The assessment recommended inpatient treatment
that Mother refused to attempt. At the time of the hearing, Mother had not completed a
drug and alcohol treatment program, but she insisted that she was addressing the issue on
her own. The fact that Mother tested positive for methamphetamines, amphetamines,
benzodiazepines, opiates, and Suboxone in the two months immediately preceding the
hearing on the petition to terminate her parental rights indicates that her approach to
sobriety is not working.
The foregoing concerns persisted throughout the proceedings up to the time of the
hearing on the petition to terminate parental rights. From the time the Children were
removed from her custody, Mother had more than a year to avail herself of the resources
provided by DCS and to work toward reunification with her Children; however, by her
own testimony, at the time of trial, she was still not in a position to care for the Children.
Given Mother’s history, there is no evidence that the conditions that led to the Children’s
removal will be remedied by Mother at any early date. See Tenn. Code Ann. § 36-1-
113(g)(3)(A)(i).
Finally, the continuation of the child-parent relationship would diminish the
Children’s chances of integration into a safe, stable home. At trial, Mother had no home
for herself and the Children. By contrast, the Children have been in a continuous foster-
home placement from March of 2018 until the hearing. At the time of hearing, the
Children were four and two-and-one-half years old and had lived with the foster parents
for over thirteen months. Ms. Lowry observed the Children’s interactions with their foster
parents and testified that there was a strong bond.
Perhaps most telling is the following portion of Mother’s testimony:
Q. [Y]our children have been in custody since December of 2017. How
long should they have to wait for you to get yourself together?
A. They have waited long enough.
We agree, as did the trial court, that Mother has had ample opportunity to remedy the
conditions that led to the Children’s removal, but she has made no significant efforts
toward that goal. As such, we conclude that there is sufficient evidence to support the
trial court’s termination of her parental rights on the ground of persistence of the
conditions that led to the Children’s removal.
The trial court also terminated Father’s parental rights on this ground. Father was
incarcerated from December 15, 2017 until the date of the hearing. Prior to his
incarceration, Father had no stable home for the Children. Before DCS removed the
Children, Father described his living arrangements with Mother and the Children as
“bouncing around from place to place.” For several months, Father, Mother, and all four
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children lived with Ray S. in a two-bedroom, one-bathroom house. Due to allegations of
sexual abuse by Father against his stepdaughter, Ray S.’s daughter Nichole, Father,
Mother, and the Children moved out of Ray S.’s home. During his testimony, Father
acknowledged that the Children were removed because of Father’s and Mother’s
instability. As discussed above, because of his incarcerations, Father was unable to
provide a home for the Children at any point during the pendency of this case.
Furthermore, Father abused illegal and prescription drugs. Father admitted his use of
marijuana and un-prescribed Suboxone before the Children were removed in December
2017 but claimed his last use was November 8, 2017.
Moreover, Father has a history of criminal activity and incarceration that
continued throughout this case. Father violated his probation due to the sexual abuse he
perpetrated against Nichole. At the time of the hearing, Father claimed that he
anticipated being released from incarceration within the month. However, on further
inquiry, it was revealed that he was being held without bond for an amended probation
violation after entering the no-contest plea to attempted aggravated sexual battery. See
Tenn. Code Ann. § 36-1-113(g)(3)(A)(ii). Father recognized that because of his criminal
conduct: “[t]here’s nothing I can possibly do for my children at this moment until I am
released.”
Based on Father’s incarcerations and inability to remedy any of the reasons the
Children were removed, continuation of the child-parent relationship would diminish the
Children’s chances of integration into a safe, stable home. Father’s testimony on this
subject is telling:
Q. I asked a similar question to [Mother] that I will ask of you. How much
longer should your children have to wait for you to get your life together
before they have a permanent, stable home?
A. They shouldn't have to wait at all.
For the foregoing reasons, we conclude that there is sufficient evidence to support the
trial court’s termination of Father’s parental rights on the ground of persistence of the
conditions that led to the Children’s removal.
E. Severe Child Abuse by Father
The trial court found, by clear and convincing evidence, that Father’s parental
rights should be terminated on the ground of severe child abuse. Tenn. Code Ann. § 36-1-
113(g)(4). Tennessee Code Annotated section 36-1-113(g)(4) provides that a ground for
terminating parental rights exists if:
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The parent or guardian has been found to have committed severe child
abuse as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against any child[.]
Tenn. Code Ann. § 36-1-113(g)(4). Tennessee Code Annotated section 37-1-102 defines
“severe child abuse,” in relevant part, as “[t]he knowing exposure of a child to or the
knowing failure to protect a child from abuse or neglect that is likely to cause serious
bodily injury or death[.]” Tenn. Code Ann. § 37-1-102(b)(22)(A)(i).
In its order terminating Father’s parental rights, the trial court found:
Based on the facts set forth herein, the Court concludes and finds that
grounds for termination of parental rights do exist as to [Father], by clear
and convincing evidence, pursuant to T.C.A. §36-1-113(g)(4), because this
Court entered an order on July 16, 2018, where [Father] was found to be a
perpetrator of severe abuse against the now 8 year old half-sibling of his
daughters, and he did not appeal said finding. He also entered a plea of nolo
contend[e]re to the corresponding offense of Attempted Aggravated Sexual
Battery on April 23, 2019.
We agree. On June 27, 2018, the Children were adjudicated dependent and
neglected and found to be the victims of severe child abuse perpetrated by Father based,
in part, on Father sexual abused of the Children’s half-sister. Father entered a no-contest
plea to attempted aggravated sexual battery of Nichole and received a six-year sentence.
Because of his plea, Father was placed on the Sex Offender Registry. Accordingly, the
issue of whether Father committed severe child abuse is res judicata, and the trial court
properly relied on the prior adjudicatory order to terminate Father’s parental rights on this
ground. See In re Heaven L.F., 311 S.W.3d 435, 439-440 (Tenn. Ct. App. 2010)
(holding that the doctrine of res judicata applies “to prevent a parent from re-litigating
whether she committed severe child abuse in a later termination of parental rights
proceeding, when such a finding had been made in a previous dependency and neglect
action) (citing State v. Tate, No. 01-A-01-9409-CV-00444, 1995 WL 138858, at *5
(Tenn. Ct. App. Mar. 31, 1995). Therefore, we conclude that the trial court did not err in
terminating Father’s parental rights on the ground of severe child abuse.
VI. Best Interests
When at least one ground for termination of parental rights has been established,
the petitioner must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). As the Tennessee Supreme Court explained:
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Facts considered in the best interest analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d)(2017).
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. As is
relevant to this appeal, these factors include, but are not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has made such an 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
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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 . . . .
Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] 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 rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. Aug. 11, 2005),
perm. app. denied (Tenn. Nov. 21, 2005). Depending on the circumstances of an
individual case, the consideration of a single factor or other facts outside the enumerated,
statutory factors may dictate the outcome of the best interest analysis. In re Audrey S.,
182 S.W.3d at 877. As explained by this Court:
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on
the unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.
White v. Moody, 171 S.W.3d at 194.
In its order terminating their parental rights, the trial court found:
Here, the Court concludes that termination [of Appellants’
respective] parental rights is in the children’s best interests by clear and
convincing evidence. In determining the issue of best interest the court
considered all of the testimony as well as the statutory factors in T.C.A. §
36-1-113(i).
The Court finds that there has been little adjustment, if any, of the
circumstances, conduct, or condition of the parents. [Mother] has not
obtained treatment to address her drug abuse and has not established a
suitable home. [Father] recently entered a plea to attempted aggravated
sexual battery of a minor and is incarcerated on a violation of probation
charge. He has not established a safe and stable home for the children.
There has not been a lasting change or adjustment of the parents despite the
reasonable efforts made by the Department.
[Father] recently entered a plea to attempted aggravated sexual
battery of his daughter’s now 8 year old half-sibling which concludes there
is brutality and abuse in the home. [Mother] has not provided proof of her
sobriety and has consistently abused drugs throughout this case. There is
also no evidence she has complied with mental health services.
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[Father] has not seen the children since they were removed due to
his incarceration. Even during the short period he was out of jail during the
children’s stay in foster care, he made no efforts to visit the children or to
improve his personal situation such that he could be a placement option for
the children.
[Mother] has not maintained regular visitation with the children and
only participated in approximately 54 hours of visits with her children
when she was offered over 140 hours. There is no meaningful relationship
between the minor children and either parent. The children have been in
custody for over 16 months, which amounts to over half of Jasmine’s life.
The children are in a good home that is committed to adopting the
children, if available for adoption, and any change from that home would
be detrimental to the children.
As discussed above, neither parent has made any significant adjustment of
circumstance, conduct, or conditions so as to make it safe and in the Children’s best
interests to be in their home, and both have failed to effect a lasting adjustment after
reasonable efforts by DCS. See Tenn. Code Ann. § 36-1-113(i)(1)-(2). Mother did not
have a suitable home for the Children when they were removed and did not have one at
the time of trial. Mother never engaged in the therapies and counseling required under the
permanency plans, and throughout these proceedings, she continued to test positive for
drugs.
Father was incarcerated from December 15, 2017 until the date of the hearing.
Although Father completed some classes and evaluations, he acknowledged that his
incarceration was a hurdle to completing his other responsibilities under the parenting
plans. As such, there is no proof that Father has such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the Children’s best interests to be in his
custody or care.
The record indicates that neither parent has maintained regular visitation with the
Children, and no meaningful relationship exists between the Children and Appellants.
See Tenn. Code Ann. § 36-1-113(i)(3) & (4). Although she was offered 140 hours of
visitation while the Children were in custody, Mother only visited for 54 hours. Mother
blamed a lack a lack of transportation for her missed visits, but Ms. Lowry testified that
DCS offered to assist Mother with transportation if she requested it 48 hours in advance.
Mother explained the lack of visits at trial stating: “I wasn’t getting my life together until
recently, honestly. I’m just now getting things the way they’re supposed to be. I know it’s
kind of late.” On some occasions, Mother would not attend a scheduled visitation and
would provide no notice to DCS. Mother acknowledged that her failure to attend
scheduled visits would disappoint the Children. After the Children were removed by
DCS, due to his incarceration, Father never visited them, but he did write occasional
letters and poems to the Children.
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Father committed severe abuse. See Tenn. Code Ann. § 36-1-113(6). On June 27,
2018, the Children were adjudicated to be dependent and neglected and found to be the
victims of severe child abuse perpetrated by Father. Father entered a no-contest plea to
attempted aggravated sexual battery of Nichole, a child in his household, and received a
six-year sentence. Based on his plea, Father was placed on the Sex Offender Registry.
From the record, Appellants’ physical environments are not healthy or safe, and
drug abuse could render the parents consistently unable to care for the Children. See
Tenn. Code Ann. § 36-1-113(7). Father was incarcerated and had no home. Mother was
planning to move into a house with Father’s brother, who was also involved in criminal
activity involving drugs. Mother provided no proof of a lease or utilities at the new
house and could not recall the address.
Furthermore, the Appellants’ mental health and emotional status prevented them
from providing safe and stable care for the Children. See Tenn. Code Ann. § 36-1-113(8).
Mother participated in mental health counseling, but not until two months before the
hearing on the petition to terminate her parental rights. Father never completed a mental
health assessment.
Neither parent paid child support consistent with the guidelines. See Tenn. Code
Ann. § 36-1-113(9). Father paid no support for the Children. Mother paid some support
for the Children but acknowledged her payments were behind. She made her first
payment in July of 2018, which was almost eight months after the Children were placed
in DCS custody. Her payments were inconsistent, and there were gaps of time between
payments.
Finally, we agree with the trial court that a change of caretakers would be
detrimental to the Children. See Tenn. Code Ann. § 36-1-113(5). Since March 2018, the
Children have been in a continuous foster-home placement. At the time of trial, the
Children were four and two-and-a-half years old and had lived with the foster parents for
over thirteen months. Ms. Lowry observed the Children’s interactions with their foster
parents and testified that there was a strong bond. The Children’s foster mother testified
that she and her husband love the Children. The Children interact well with the foster
parents and the other children in the home. The Children attend daycare, and the foster
parents are open to adopting the Children.
Based on the foregoing facts, we conclude that there is clear and convincing
evidence to support the trial court’s determination that termination of Appellants’
respective parental rights is in the Children’s best interests.
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VII. Conclusion
For the foregoing reasons, we affirm the trial court’s order terminating Appellants’
respective parental rights to the two minor Children. The case is remanded for such
further proceedings as may be necessary and are consistent with this opinion. Costs of
the appeal are assessed one-half to Appellant, Brittney S., and one-half to Appellant,
Roman P. Because Brittney S. and Roman P. are proceeding in forma pauperis in this
appeal, execution for costs may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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