In re Shyanne H. ( 2020 )

06/25/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 1, 2020
IN RE SHYANNE H. ET AL.
Appeal from the Juvenile Court for Williamson County
No. LF 37368 Sharon Guffee, Judge
___________________________________
No. M2019-02127-COA-R3-PT
___________________________________
This is a termination of parental rights case brought by the Tennessee Department
of Children’s Services. The juvenile court terminated the parental rights of the mother
and the father on the grounds of persistence of conditions and severe child abuse,
pursuant to Tennessee Code Annotated sections 36-1-113(g)(3) and 36-1-113(g)(4),
respectively. The juvenile court also terminated the father’s parental rights on the
additional ground of severe child abuse pursuant to Tennessee Code Annotated section
36-1-113(g)(5). The Mother appealed the grounds for termination as well as the juvenile
court’s finding that termination was in the children’s best interests, while the father only
appealed the juvenile court’s best interests finding. Discerning no reversible error, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which JOHN W. MCCLARTY
and W. NEAL MCBRAYER, JJ., joined.
Jennifer L. Honeycutt, Franklin, Tennessee, for the appellant, Wayne H.
Emily G. Pfeiffer, Nashville, Tennessee, for the appellant Latasha H.
Herbert H. Slattery, III, Attorney General and Reporter; Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. BACKGROUND AND PROCEDURAL HISTORY
Latasha H. (“Mother”) and Wayne H (“Father”) were married in 2006, and,
together, they are the parents of the five children at issue in this case: S.H., born in
October of 2003; J.H., born in June of 2006; W.H., born in October of 2008; C.H., born
in December of 2009; and E.H., born in May of 2012 (together, “the Children”).1 The
Department of Children’s Services (“DCS”) first became involved with Mother, Father,
and the Children in December 2015 while the family was living in Davidson County,
Tennessee. DCS responded to the family home based on a referral for environmental
neglect and lack of supervision. The DCS investigator stated that the home was infested
with roaches, that there were animal feces on the floor, and that there were dirty dishes
and food on the stove and in the refrigerator. It was also determined that E.H. had
obtained a loaded and unsecured handgun from inside the home and had shot himself in
the arm. On December 10, 2015, DCS filed a petition for dependency and neglect in the
Davidson County Juvenile Court. The Children were placed with their grandmother
pursuant to an Immediate Protection Agreement (“IPA”); however, because the IPA “was
not kept properly[,]” the Children were ultimately placed in state custody. On February
3, 2017, the Davidson County Juvenile Court found the Children dependent and
neglected,2 and it also found that Mother and Father had committed severe child abuse
against all five of the Children.3 Following successful trial home visits ordered by the
Davidson County Juvenile Court, the Children were intermittently returned to the custody
of Mother and Father: E.H. on September 30, 2017; S.H. and J.H. on October 6, 2017;
C.H. on February 11, 2018; and W.H. on February 12, 2018. Mother and Father then
relocated to Williamson County, Tennessee.
On April 20, 2018, about two months after Mother and Father had regained
custody of all five of the Children, DCS received another referral alleging lack of
supervision and physical abuse against E.H. and C.H. Specifically, the referral alleged
that E.H. had a cut on his left ear and burn marks on the inside of his leg and that C.H.
also had burn marks the size and shape of a cigarette on his finger. Sandra Grensberg,
the Child Protective Services Investigator assigned to the case, interviewed E.H. and C.H.
at school on April 23, 2018. Neither child, however, reported or disclosed abuse during
these interviews. The next day, Ms. Grensberg interviewed E.H. and W.H. at school and
C.H., J.H., and S.H. at the family home. E.H., W.H., and C.H. reported multiple and
various forms of physical abuse from Father, that they were scared to be at home when
DCS left, that Father threatened to beat them if they admitted anything to DCS, and that
they planned on running away from home that night. Neither S.H. nor J.H. made any
disclosures of abuse that day. That same day, due to the concerns for the Children’s
safety, DCS completed an IPA, whereby Father agreed to leave the home until the
1
In cases involving minor children, it is this Court’s policy to redact names of persons involved
so as to protect the identities of the children.
2
Initially, on August 1, 2016, the Davidson County Juvenile Court found all five of the Children
to be dependent and neglected and severely abused, finding further that Mother and Father were
perpetrators of the abuse. Mother and Father petitioned for a rehearing of this decision, which came to be
heard on January 4, 2017.
3
There is nothing in the record indicating that Mother or Father appealed this order.
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investigation was complete. Additionally, Father was allowed only supervised visitation
with the Children and was prohibited from visiting the Children overnight.
On May 2, 2018, DCS filed a dependency and neglect petition in the Williamson
County Juvenile Court. In a preliminary hearing order entered on May 16, 2018, the
Williamson County Juvenile Court ordered that Mother and Father would retain
temporary legal custody of the Children, but that Father would have no overnight visits
and that his visitation would be supervised by a third party other than Mother. The
Williamson County Juvenile Court also ordered Mother and Father to complete a clinical
assessment consisting of parenting and anger-management components.
Sometime in June 2018, Mother and the Children were evicted from the family
home.4 Following the eviction, Mother and the Children moved to Shelbyville,
Tennessee to live with Kimberly Poteete—Father’s sister—and her three children.
Around the same time, Father also moved to Shelbyville and lived in an apartment two
streets away from Ms. Poteete’s home. On July 18, 2018, the Williamson County
Juvenile Court ordered that its prior orders remain in effect—requiring Father’s visits to
be supervised, prohibiting Mother from supervising the visits, and prohibiting overnight
visits in general. However, during an Individual Education Plan (“IEP”) meeting at
school on August 23, 2018, E.H., C.H., and W.H. each reported that the Children spent
the night with Father at his apartment in Shelbyville on multiple occasions. Due to safety
concerns, the Williamson County Juvenile Court then entered an ex parte protective
custody order on September 4, 2018, placing all five of the Children in state custody.
Abigail Jones, a case manager in the foster care division of DCS, was assigned to the
case. Thereafter, on September 7, 2018, the Davidson County Juvenile Court entered a
final order, granting jurisdiction of any and all pending matters regarding the Children to
the Williamson County Juvenile Court (hereinafter, the “juvenile court”).
On September 20, 2018, DCS developed a permanency plan, requiring Mother and
Father, among other things, to: comply with the safety plans developed by the Child and
Family Team; complete all additional recommended assessments, such as parenting
education, victim-abuse counseling, and anger management; provide proof of legal and
stable income; provide proof of safe and stable housing; participate in family counseling;
and participate in supervised therapeutic visitation with the Children. The juvenile court
ratified the permanency plan on October 24, 2018.5 To assist Mother and Father in
completing their tasks under the permanency plans, DCS, among other things, arranged
4
Gregory Collins, the lead investigator for Williamson County DCS, testified that Mother had
reported being evicted because the Children “were too loud.”
5
A second permanency plan was developed on November 16, 2018 and ratified by the juvenile
court on January 8, 2019. The second plan was similar to the first, but the juvenile court added the
following modifications: that family therapy between Mother and Father and any of the Children would
begin only at the recommendation of the Children’s therapists and the parents’ therapists; and that the
Children were not required to participate in weekly phone calls with Mother and Father.
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family support services, including domestic-violence education and anger management,
provided therapeutic visitation for the family, completed home studies, and arranged and
scheduled the parents’ clinical assessments.
The juvenile court further limited the Children’s contact with Mother and Father
due to the chaotic nature of the family visitations. During a sibling visit at which Mother
and Father were also present, Mobile Crisis was called for C.H., and, ultimately, he had
to be hospitalized at Vanderbilt Psychiatric Hospital in order to stabilize his
psychological condition. Around the same time, E.H.’s therapist recommended that he
refrain from sibling visits because he was “struggling to cope with the chaos of the[]
visits.” In a February 6, 2019 judicial review order, the juvenile court prohibited E.H.
from participating in sibling visitation pending further court orders, limited sibling
visitations to consist of only two of the Children at a time, and prohibited Mother and
Father from attending sibling visitations.
The juvenile court restricted Mother’s and Father’s contact with the Children even
further following a review hearing on March 5, 2019. In the review order, filed on March
14, 2019, the juvenile court noted the current circumstances of the Children, all of whom
had been placed in separate foster homes: S.H. was participating in individual counseling,
was doing well, and had expressed that she did not want to have contact with Mother or
Father; J.H. was receiving therapy through Omni Visions but had recently began
displaying disruptive and noncompliant behaviors; W.H. was participating in weekly
therapy and was “making great progress”; C.H. had been placed in the Youth Villages
campus in Bartlett, Tennessee following his release from Vanderbilt Psychiatric Hospital;
and E.H. was receiving therapy services but had begun to exhibit disobedient and
aggressive behaviors following a phone call with Mother and Father. Considering the
foregoing, the juvenile court found that visitation with Mother and Father was causing
“substantial harm” to the Children and that it was in the Children’s best interests to
suspend visitation with the parents.
After entering state custody on September 4, 2018, the Children made multiple,
additional disclosures of abuse against Mother and Father. In case recordings dated
February and March 2019, S.H. reported to Ms. Jones, her guardian ad litem Katy Miller,
and her Court Appointed Special Advocate Pam Godwin, that, after Father was required
to leave the family home pursuant to the IPA, she and Mother got into a fight in which
Mother shoved her, held her by the neck against the kitchen counter, and hit her in the
face with a frying pan. S.H. also reported that, while Mother and the Children were
living with Ms. Poteete during the summer of 2018, Mother accused her of trying to
“steal her husband” and ruin the parents’ relationship.6 Additionally, S.H. reported that
both Mother and Father had choked her and hit her in the face. E.H. reported incidents of
6
Equally disturbing are S.H.’s reports of Mother’s emotional abuse. S.H. suffers from alopecia,
and, according to S.H., Mother would “rub in her face that she had hair[.]”
-4-
abuse to Jennifer Broadrick, his therapist from January to May 2019 and whom he would
see three to four times a week. He reported that Father had choked him and held him
against the wall on multiple occasions and that, on one occasion, Father had whipped his
face with a belt. E.H. compared Father to the Hulk because “the Hulk destroys
everything.” While W.H. and C.H. made numerous disclosures of abuse to Ms.
Grensberg in April 2018 when the investigation was initiated and prior to entering state
custody, they did not make specific disclosures of abuse to Ms. Jones; however, both
W.H. and C.H. told Ms. Jones that they would not be able to go home if they ever told
her what happened at home.
On May 13, 2019, DCS filed a petition in the juvenile court to terminate the
parental rights of Mother and Father to all five of the Children, alleging the following
grounds: persistence of conditions pursuant to Tennessee Code Annotated section 36-1-
113(g)(3); severe child abuse pursuant to Tennessee Code Annotated sections 36-1-
113(g)(4) and 36-1-113(g)(5); and failure to manifest an ability and willingness to
assume custody of the Children pursuant to Tennessee Code Annotated section 36-1-
113(g)(14). In early June 2019, S.H. started to become nervous about the upcoming
termination trial at which she planned to testify. Ms. Godwin visited her at her foster
home and reported that S.H. was burdened with the emotional weight of possibly
“tear[ing] up her family.” A week later, S.H. ran away from her foster home, and she
was still on “runaway status” at the time of trial.
The juvenile court conducted a trial on the petition on July 19 and 24, 2019,
September 6 and 19, 2019, and October 8, 2019. In an order filed on November 18,
2019, the juvenile court terminated Mother’s and Father’s parental rights on the grounds
of persistence of conditions and severe child abuse, and it terminated Father’s rights on
the additional ground of having received a sentence of more than two years’
imprisonment for severe child abuse against E.H.7 Additionally, the juvenile court found
that termination of Mother’s and Father’s parental rights was in the best interests of the
Children. Father and Mother timely filed notices of appeal on December 3, and
December 6, 2019, respectively.
II. ISSUES PRESENTED
Mother raises three issues for review on appeal, restated as follows:
1. Whether the juvenile court erred in terminating Mother’s parental rights
on the ground of persistence of conditions.
2. Whether the juvenile court erred in terminating Mother’s parental rights
on the ground of new allegations of severe child abuse.
7
DCS elected not to pursue the ground of failure to manifest an ability and willingness to assume
custody of the Children.
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3. Whether the juvenile court erred in finding that termination of Mother’s
parental rights was in the best interests of the Children.
Father does not challenge the juvenile court’s findings regarding the grounds for
termination of his parental rights. Rather, Father raises only one issue for review on
appeal: whether the juvenile court erred in finding that termination of his parental rights
was in the best interests of the Children.
III. STANDARD OF REVIEW
Under both the United States and Tennessee Constitutions, a parent has a
fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,
405 U.S. 645, 651 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” 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)). A person
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and 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).
Because of the fundamental nature of a parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in
deciding termination cases. Santosky, 455 U.S. at 769. Accordingly, both the grounds
for termination and that termination of parental rights is in the child’s best interests must
be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); 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 the evidence.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence “produces in a fact-finder’s mind
a firm belief or conviction regarding the truth of the facts sought to be established.” Id.
In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838
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(Tenn. 2002).
IV. GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
As noted earlier, the juvenile court terminated Mother’s and Father’s parental
rights on the grounds of persistence of conditions and severe child abuse, and it
terminated Father’s rights on the additional ground of having received a sentence of more
than two years’ imprisonment for severe child abuse against E.H. 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). Moreover,
the Tennessee Supreme Court has also instructed this Court to “review a trial court’s
findings regarding all grounds for termination and whether termination is in a child’s best
interests, even if a parent fails to challenge these findings on appeal.” In re Carrington
H., 483 S.W.3d 507, 511 (Tenn. 2016). Accordingly, we will review each of the
foregoing grounds on which the trial court relied in terminating Mother’s and Father’s
parental rights.
A. Persistence of Conditions
The juvenile court relied on Tennessee Code Annotated section 36-1-113(g)(3) as
a ground for terminating Mother’s and Father’s parental rights, which provides as
follows:
(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[.]
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Tenn. Code Ann. § 36-1-113(g)(3).8 In the instant action, the Davidson County Juvenile
Court adjudicated the Children dependent and neglected and victims of severe child
abuse on February 3, 2017. Additionally, following Mother’s and Father’s
noncompliance with numerous court orders, the Children were placed in state custody on
September 4, 2018 pursuant to the ex parte protective custody order.
When the instant case’s referral to DCS was made in April 2018, the family had
22 prior child protective services referrals, 8 of which were investigated. However,
despite being, as the juvenile court noted, “well versed in the ways of DCS[,]” Mother
and Father failed to show—with their words and actions—that the Children could ever be
safely returned to their custody. Specifically, the juvenile court found as follows:
The parents were hostile and demanding, especially Father. They never
accepted responsibility for their behavior or the children’s behavior.
Unlike the first custodial episode, they blamed everything on DCS. Father
was so confrontational, the court had to order his communication be in
writing because he was constantly harassing every department in DCS.
While they completed the tasks on the permanency plan, they never
implemented anything they were taught after the DCS caseworker
explained to them, it’s “quality, not quantity.” The providers had a difficult
time working with Father and making recommendations to him. He
dominated the meeting and intimidated everyone. Even throughout the
days of trial in this case, the parents sat glaring at everyone, arms crossed
over their chests.
These facts—most significantly Mother’s and Father’s refusal to acknowledge the severe
child abuse pervading throughout this custodial episode—indicate that the conditions that
led to the Children’s removal still persist and that there is little likelihood such conditions
will be remedied in the near future. See In re L.M.H., No. E2017-00604-COA-R3-PT,
2017 WL 4331037, at *6 (Tenn. Ct. Ap. Sept. 28, 2017) (affirming the trial court’s
termination of a father’s parental rights on the ground of persistence of conditions due to
his “fail[ure] to take responsibility for his actions leading to the removal of the children”
and “refus[al] to acknowledge the harm that he has caused the children.”); see also In re
Dakota C.R., 404 S.W.3d 484, 501 (Tenn. Ct. App. 2012) (“In light of their continued
refusal to take responsibility for the children's injuries, as well as their continued belief
that they have done nothing wrong, it is unlikely that Mother or Father will change their
behavior to prevent such abuse in the future.”). Further, we have previously held that a
parent who has refused to acknowledge that the other parent has committed abuse will be
unlikely to protect the children from such abuse in the future. See In re H.L.F., 297
S.W.3d 223, 232 (Tenn. Ct. App. 2009). Accordingly, we conclude, that the evidence is
8
DCS filed the termination petition on May 13, 2019. Accordingly, all versions of the statutes
referenced herein are those that were effective on that date.
-8-
clear and convincing in favor of the juvenile court’s finding that Mother’s and Father’s
parental rights should be terminated on the ground of persistence of conditions within the
meaning of Tennessee Code Annotated section 36-1-113(g)(4).
B. Severe Child Abuse
The juvenile court also relied on Tennessee Code Annotated section 36-1-
113(g)(4) as a ground for terminating Mother’s and Father’s parental rights. This
statutory ground provides that a parent’s rights may be terminated if that parent (1) “has
been found to have committed severe child abuse, as defined in § 37-1-102, under any
prior order of a court” or (2) “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). Here, the juvenile court terminated
Mother’s and Father’s parental rights on both bases provided in Tennessee Code
Annotated section 36-1-113(g)(4). We will address each in turn.
First, the juvenile court terminated Mother’s and Father’s parental rights based
upon a prior finding of severe child abuse. On February 3, 2017, the Davidson County
Juvenile Court found that Mother and Father had committed severe child abuse against
all five of the Children based upon the fact that E.H. had found a loaded and unsecured
handgun in the family home and had shot himself in the arm.9 Moreover, as noted
previously, neither parent appealed this order. As this Court has stated, “[o]nce there has
been a finding of severe child abuse in a final order, the doctrine of res judicata prevents
parents from re-litigating the issue of whether they committed severe child abuse in a
subsequent proceeding to terminate their parental rights.”10 In re C.D., No. M2016-
00275-COA-R3-PT, 2016 WL 4548042, at *5 (Tenn. Ct. App. Aug. 30, 2016). Further,
this Court “has repeatedly applied the doctrine of res judicata to prevent a parent from re-
litigating whether he or she committed severed child abuse in a termination of parental
rights proceeding when such a finding has already been made in a previous dependency
and neglect action.” In re Kylea K., No. E2017-02097-COA-R3-PT, 2018 WL 3084530,
at *4 (Tenn. Ct. App. June 21, 2018). Because Mother, Father, and DCS were parties in
the prior dependency and neglect action, and because the issue of whether Mother and
9
Quoting the Davidson County Juvenile Court’s February 3, 2017 Order of Adjudication, the
Williamson County Juvenile Court, in its Termination of Parental Rights Order, stated: “The fact that
[E.H.] found the handgun and suffered serious bodily injury constitutes severe child abuse, and the
parents knowingly failed to protect their children from the same danger, thus making all of the children
severely abused.”
10
Under the doctrine of res judicata, “‘an existing final judgment rendered upon the merits,
without fraud or collusion, by a court of competent jurisdiction, is conclusive of the rights, questions and
facts in issue as to the parties and their privies, in all other actions in the same or any other judicial
tribunal of concurrent jurisdiction.’” In re Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App.
2010) (quoting Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn. Ct. App. 1990)).
-9-
Father committed severe child abuse was fully litigated, the issue of whether Mother and
Father committed severe child abuse is res judicata.
Second, the juvenile court also terminated Mother’s and Father’s parental rights
based upon new allegations of—and ultimate findings that the parents had committed—
severe child abuse under subsections (A) and (B) of Tennessee Code Annotated section
37-1-102(b)(27).
Subsection (A) defines severe child abuse 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 and the knowing use of force on a child that is likely to
cause serious bodily injury or death[.]” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i). Here,
the Children’s disclosures of abuse are both consistent and shocking, revealing a violent
and chaotic home in which the Children were subjected to constant abuse by both Mother
and Father. The juvenile court even noted that, “[i]f ever there was a case of severe
abuse, this is it.” The following includes only some of the Children’s disclosures of
abuse committed by Father: throwing a DVD case at W.H.’s head; throwing a boot at
E.H.’s head and busting his nose; punching W.H. in the chest; beating and slapping the
Children in the face; making J.H. sit on his knees and punching him in the chest; hitting
S.H. so hard that she went unconscious; hitting J.H. in the head with a wooden plank and
splitting his head open; hitting W.H. so hard that he stopped breathing and an ambulance
had to be called; choking E.H. and holding him against a wall on multiple occasions;
whipping E.H. in the face with a belt; and spanking S.H. until she bled. Mother’s abuse
was directed more towards S.H., the daughter: in one instance, Mother held S.H. by the
neck against the kitchen counter and hit her in the face with a frying pan; in another,
Mother spat on S.H. and hit her in the face, busting S.H.’s nose and giving her a black
eye. Mother’s abuse of S.H. was also emotional: S.H. suffers from alopecia, and,
according to S.H., Mother would “rub in her face that she had hair[.]”11 The foregoing
clearly constitutes “the knowing use of force on a child that is likely to cause serious
bodily injury or death.” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i).
Subsection (B) defines severe child abuse as follows:
11
Mother argues on appeal that S.H. recanted her prior disclosures of abuse in a voicemail to
Mother’s attorney shortly before the trial began and in a YouTube video that was posted as the trial was
ongoing. The juvenile court, however, did not lend credibility to S.H.’s recantations, noting that “the
pressure on her to hold the family together was enormous” and that “[t]he YouTube video clearly
appeared to be coached.” Dr. Trey Monroe, a clinical psychologist testified as follows regarding S.H.’s
recantations:
[In] the forensic interview, she was fluid and spontaneous. In the video, the
YouTube, she was reading – she read a prepared statement and she mispronounced some
of the words. I don’t think she knew what she was exactly – knew what they meant. A
couple of times, in the YouTube video, it looked like she looked off camera for – to make
sure she was saying the right thing or reading the right thing.
- 10 -
Specific brutality, abuse or neglect towards a child that in the opinion of
qualified experts has caused or will reasonably be expected to produce
severe psychosis, severe neurotic disorder, severe depression, severe
developmental delay or intellectual disability, or severe impairment of the
child's ability to function adequately in the child's environment, and the
knowing failure to protect a child from such conduct[.]
Tenn. Code Ann. § 37-1-102(b)(27)(B). Here, Dr. Trey Monroe, a licensed clinical
psychologist, completed psychological harm assessments for C.H. and E.H. Ultimately,
Dr. Monroe determined that C.H. and E.H. exhibited numerous mental health disorders,
including post-traumatic stress disorder, reactive attachment disorder, and generalized
anxiety disorder. Specifically, Dr. Monroe noted that C.H.’s responses to the Complete
These Sentences test “were obsessed with being bullied” and demonstrated “poor
boundaries and primitive emotional functioning.” For example, when prompted, “I will
never forget,” C.H. responded, “when you be mean to me.” When prompted, “It is so
important to me to,” he responded, “love my family.” These responses, according to Dr.
Monroe, indicate that C.H. “is strongly bound to the abusive system.” Dr. Monroe noted
that E.H.’s responses to the Complete These Sentences test “explicitly mentioned how the
domestic violence affects him emotionally” and mentioned an incident “where [Father]
held him by his throat against a wall.” Dr. Monroe opined that additional contact with
Mother and Father would further harm C.H.’s and E.H.’s mental health. Clearly, the
abuse endured by E.H. and C.H. “has caused or will reasonably be expected to produce
severe psychosis, severe neurotic disorder, severe depression, severe developmental delay
or intellectual disability, or severe impairment of the child's ability to function adequately
in the child's environment[.]” Tenn. Code Ann. § 37-1-102(b)(27)(B).
Based on the foregoing, we conclude that the evidence is clear and convincing in
favor of the juvenile court’s finding that Mother and Father committed severe child abuse
within the meaning of Tennessee Code Annotated section 36-1-113(g)(4).
C. Sentence for Child Abuse
The juvenile court also relied on Tennessee Code Annotated section 36-1-
113(g)(5) as a ground for terminating Father’s parental rights, which provides, in relevant
part, that a parent’s rights may be terminated when the parent
has been sentenced to more than two (2) years’ imprisonment for conduct
against the child who is the subject of the petition . . . that has been found
under any prior order of a court or that is found by the court hearing the
petition to be severe child abuse, as defined in § 37-1-102.
Tenn. Code Ann. § 36-1-113(g)(5). The evidence in the record on appeal shows that, on
September 7, 2016, Father pled guilty to attempted aggravated child neglect and received
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a suspended sentence of 10 years imprisonment. The incident underlying Father’s
conviction—E.H.’s obtaining a loaded and unsecured handgun and shooting himself in
the arm—was found by the Davidson County Juvenile Court to constitute severe child
abuse pursuant to Tennessee Code Annotated section 37-1-102. The fact that Father did
not serve any jail time does not preclude termination of his parental rights on this ground.
The statute provides that, unless otherwise stated, “‘sentenced’ shall not be construed to
mean that the parent or guardian must have actually served more than two (2) years
confinement, but shall only be construed to mean that the court had imposed a sentence
of two (2) or more years upon the parent or guardian[.]” Tenn. Code Ann. § 36-1-
113(g)(5) (emphasis added); see also In re K.G., W2003-00809-COA-R3-PT, 2004 WL
1073928, at *3-4 (Tenn. Ct. App. May 10, 2004) (affirming this ground where the mother
received a four-year suspended sentence for two felony counts of child abuse and
neglect). Accordingly, we conclude that the evidence is clear and convincing in favor of
the juvenile court’s finding that Father’s parental rights should be terminated pursuant to
Tennessee Code Annotated section 36-1-113(g)(5).
V. BEST INTERESTS
Having found at least one statutory ground on which to sustain termination of
Mother’s and Father’s parental rights, we must now consider whether DCS has proven by
clear and convincing evidence that termination of Mother’s and Father’s parental rights is
in the Children’s best interests. See Tenn. Code Ann. § 36-1-113(c)(2). Once the court
has determined that a parent is unfit based on clear and convincing evidence that one or
more of the grounds for termination exists, the interests of the parent and child diverge,
and the interests of the child become the court’s paramount consideration. In re Audrey
S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). If the interests of the parent and the
child conflict, the court must always resolve the conflict in favor of the rights and best
interests of the child. Tenn. Code Ann. § 36-1-101(d). Tennessee Code Annotated
section 36-1-113(i) sets forth the following list of factors to be considered when
determining a child’s best interests in a termination of parental rights case:
(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
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have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i). Because long-term foster care is disfavored, “many of
the statutory best interest factors relate to the likelihood that the child will be able to
leave foster care and return to the parent’s home in the near future.” In re Adoption of
J.A.K., No. M2005-02206-COA-R3-PT, 2006 WL 211807, at *4 (Tenn. Ct. App. Jan. 26,
2006). If that likelihood is remote, “the best interest of the child often lies in termination
of parental rights so that the child can attain the security and stability of a permanent
home through adoption.” Id.
Here, the juvenile court found by clear and convincing evidence that it was in the
best interest of the Children to terminate Mother’s and Father’s parental rights. In their
respective appellate briefs, Mother and Father addressed the majority of the nine factors,
arguing that the juvenile court erred in its determination that termination of their parental
rights was in the Children’s best interests. For example, regarding the first, second, and
third best interest factors, Mother and Father argue that they were never afforded an
opportunity to demonstrate their progress towards reunification with the Children because
DCS severely limited their visitation and interaction with the Children. As noted
throughout this opinion, however, the hallmark of this case is the severe child abuse
committed by both parents. With regard to the permanency plans and services offered by
DCS, Ms. Jones testified that Mother and Father “were more so concerned . . . of
checking off boxes and completing tasks and not actually demonstrating the skills
necessary to appropriately parent.”12 Moreover, the record reflects that the parents’
12
When asked by the juvenile court why Mother and Father exhibited little to no progress, Ms.
Jones responded: “I believe that the issue is a lack of wanting to change and to necessarily just put on a
face in order to say we’ve done the job and in order to move on.”
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visitation was limited because of the damaging effect it had on the Children.13 As such,
the limitations placed on Mother’s and Father’s visitation were appropriate. Further, the
parents’ own conduct—most significantly their refusal to acknowledge their abuse and its
harmful effects on the Children, both physically and psychologically—prevented them
from being afforded the opportunity to demonstrate their progress.
With regard to the fourth best interest factor, Mother and Father argue that they
both have a strong bond with the Children, and that the juvenile court erred in weighing
this factor against them. Specifically, the juvenile court found as follows:
There is a relationship between the parents and the children. As noted
above, it is a powerful and controlling relationship laced with trauma and
abuse. It is not a meaningful, healthy relationship in any way. In fact, most
of the children’s behavior is dramatically improving now that they are in
healthy, safe environments and not visiting with parents.
Mother and Father do have a bond or relationship with the Children; however, the
relevant inquiry is not whether the parents have any bond or relationship with the
Children, but whether they have a meaningful bond or relationship with them. We agree
with the juvenile court that Mother’s and Father’s relationships with the Children are
anything but meaningful, and, rather, are ones marred by abuse, control, and
manipulation. We conclude that the juvenile court appropriately weighed this factor
against Mother and Father and in favor of termination.
Lastly, a change of caretakers and physical environment would have a negative
effect on the Children’s emotional, psychological, and medical well-being. While the
Children have encountered some setbacks throughout this custodial episode, such is to be
expected considering the trauma they have experienced. Moreover, the Children have
been making improvements in their respective placements. For example, W.H. had been
“pretty stable” throughout the custodial episode, but his behaviors began to escalate
around the time of trial—notably following his most recent contact with Mother and
Father. However, the juvenile court noted during the September 2019 permanency
hearing—which occurred on the fourth day of trial—that W.H.’s behavior had improved
dramatically. After being discharged from Vanderbilt Psychiatric Hospital, C.H. was
placed at Youth Villages in Bartlett, Tennessee, where he has been doing well, so much
so that his therapist described his progress as “remarkable.”14 E.H. has been receiving
13
As noted above, during a sibling visit during which Mother and Father were present, Mobile
Crisis had to be called for C.H., and he had to be hospitalized at Vanderbilt Psychiatric Hospital to
stabilize his psychological condition. Additionally, E.H.’s therapist recommended that he refrain from
sibling visits because he was “struggling to cope with the chaos of the[] visits.”
14
In fact, Karmen Davis, the DCS Team Coordinator who supervised the case, testified as
follows regarding C.H.’s current condition:
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therapeutic services in his current foster home, and he has been making “significant
progress” in trauma therapy. Additionally, E.H. has been doing well in school, and his
foster parents are willing to adopt him.15 While S.H. was still on “runaway status” at the
time of trial, she had been making progress in her foster home. Moreover, S.H. had
previously expressed a desire to stay with her foster family, who had expressed an
interest in adopting her.16 Out of all of the Children, J.H. had shown the least
improvement. The evidence reflects, however, that contact with Mother and Father only
hinders J.H.’s progress.17
There are many concerns in this case, but at the forefront is Mother’s and Father’s
severe abuse of the Children. The record is replete with evidence pertaining to this
problem, as well as Mother’s and Father’s refusal to acknowledge it. Again, the essential
inquiry here is what is in the best interests of the Children, and based on this record, the
Children’s interests are served by terminating Mother’s and Father’s parental rights and
remaining in their current respective placements, where they have the best opportunity to
progress and achieve stability. In light of the foregoing, we conclude that the record
contains clear and convincing evidence in favor of the juvenile court’s finding that
terminating Mother’s and Father’s parental rights is in the Children’s best interests.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is hereby affirmed.
_________________________________
ARNOLD B. GOLDIN, JUDGE
To see [C.H.] – you’ll see – you know, he – he is doing a lot better. You know,
this is not the same child that use to – you know, prior to going there. You know, he was
very chaotic. He had a lot of anger and things like that when he first arrived there – a lot
of physical restraints; issues with his peers; issues with staff – but now he doesn’t have a
lot of those issues anymore. [C.H.] can communicate about any issues that he’s having
and things like that.
15
Ms. Davis stressed that E.H. was finally stable: “Very stable. I mean, stable at home, stable at
school. Everyone who has known [E.H.] in the past and seen him now, they say, you know, a lot – he is a
lot more stable, you know, a lot – doing a lot better.”
16
In fact, with regard to her foster family, S.H. had reported to Ms. Godwin that “it was the first
time she felt like she had a family.”
17
For example, Ms. Davis testified that, after the juvenile court suspended phone calls between
J.H. and the parents, J.H.’s therapist recommended resuming phone calls as a type of reward fore good
behavior. Following his phone calls with Mother and Father, however, J.H.’s behavior only worsened
and, according to Ms. Davis, “[did] not help[] in the situation at all.”
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