In Re Cheyenne S. ( 2020 )

09/24/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 15, 2020
IN RE CHEYENNE S. ET AL.
Appeal from the Juvenile Court for Knox County
No. 164018 Timothy E. Irwin, Judge
___________________________________
No. E2019-01659-COA-R3-PT
___________________________________
A mother appeals the termination of her parental rights to her children. The juvenile
court determined that four statutory grounds supported terminating her parental rights:
abandonment by failure to establish a suitable home; failure to substantially comply with
the permanency plan; persistence of conditions; and her failure to manifest an ability and
willingness to assume custody of her children. The court also determined that
termination of the mother’s parental rights was in the best interests of her children. Upon
our review, we conclude there was clear and convincing evidence supporting both the
grounds for termination and the best interest determination. So we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and THOMAS R. FRIERSON II, J., joined.
Gregory E. Bennett, Seymour, Tennessee, for the appellant, Martha S.
Herbert H. Slatery III, Attorney General and Reporter, and Amber Seymour, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
In June 2016, the Tennessee Department of Children’s Services (the
“Department”) received reports from neighbors of Martha S. (“Mother”) that two of her
children, ages three and two, were running and playing in the street unattended. The
neighbors attempted to alert Mother. But she was behind a locked bedroom door with
another child, age six, and the children’s putative father and could not be roused. The
neighbors also reported incidents of domestic violence in Mother’s home and other
concerns over the home environment.
A couple of days after the report, the Department interviewed Mother at her home.
The petition for temporary legal custody described the home’s condition and that of
Mother’s children.
During this home visit, the Department observed feces on the floor,
smeared into carpets, and on the door to the first bedroom. In the second
bedroom, a child’s toilet with urine inside and on the seat was observed.
[The two-year-old] placed her doll into this toilet during the interview. In
the bathroom, feces and urine were observed in the toilet and a used tampon
was observed on the sink. Marijuana was observed on the couch in the
living room. [The three-year-old] was observed lying on this couch during
the interview. The back bedroom was strewn with clothes and dirty
diapers. The refrigerator was observed to be empty other than a bottle of
coke and a bottle of orange juice. The kitchen cabinets had a box of cereal,
rice, and a coffee tub. [The three-year-old] was observed in his underwear
with feces on his leg. [Mother] took him inside and changed him and
cleaned his leg. All three children had brown and black dirt on their faces
around their mouths and on their arms and legs[,] and all three were
observed to be barefoot with black feet. When the Department first arrived,
[the three-year-old and two-year-old] were both observed to only have on
diapers that were sagging to the floor. [Mother] changed both children after
the Department arrived.
The day the petition was filed, July 6, 2016, the juvenile court granted the Department
temporary legal custody of Mother’s three children.
The juvenile court subsequently found the children to be dependent and neglected
“due to the mother’s domestic violence and environmental neglect issues.” The court
ratified multiple family permanency plans for Mother with the alternative goals of
returning the children to the parent or adoption. And in 2018, a trial home placement
with Mother was attempted. But the court ended the experiment early because Mother
could not “be protective of the children and she . . . allowed inappropriate people in the
home.” The court also found that Mother had not made progress with the cleanliness of
her home.
Nearly thirty-two months after the children’s removal, the Department petitioned
the juvenile court to terminate Mother’s parental rights.1 Following a one-day trial, the
1
The Department filed a separate petition to terminate the parental rights of the putative father.
Because the father’s parental rights are not at issue in this appeal, we only discuss the father to the extent
2
court granted the petition. It concluded that there was clear and convincing evidence of
four statutory grounds for terminating Mother’s parental rights. See Tenn. Code Ann.
§ 36-1-113(g) (Supp. 2019). The court further concluded that the evidence was clear and
convincing that termination of Mother’s parental rights was in the children’s best interest.
See id. § 36-1-113(c)(2).
II.
A parent has a fundamental right, based in both the federal and State constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at
250. State statute identifies those circumstances in which the government’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights. See Tenn.
Code Ann. § 36-1-113(g).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
Parties seeking termination of parental rights must first prove the existence of at least one
of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for
termination are shown, they then must prove that terminating parental rights is in the
child’s best interest. Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,
215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). This heightened burden of proof serves “to minimize the possibility of erroneous
decisions that result in an unwarranted termination of or interference with these rights.”
Id. “Clear and convincing evidence” leaves “no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the
fact-finder’s mind regarding the truth of the facts sought to be established. In re Bernard
T., 319 S.W.3d at 596.
We review the trial court’s findings of fact “de novo on the record, with a
presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
necessary to address the termination of Mother’s parental rights.
3
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de
novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct.
App. 2007).
A.
On appeal, Mother argues that the evidence does not clearly and convincingly
support the statutory grounds relied on by the juvenile court for terminating her parental
rights. Mother also argues that the evidence does not clearly and convincingly support
the finding that termination of her parental rights was in the children’s best interest.
1. Abandonment - Failure to Provide a Suitable Home
One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). Abandonment as a ground for
termination is defined in five different ways. See id. § 36-1-102(1)(A) (Supp. 2019)
(defining the term “abandonment”). The juvenile court concluded that Mother
abandoned her children under the second definition of “abandonment.”
The second definition of “abandonment” considers whether a child has a suitable
home to return to after the child’s court-ordered removal from the parent. Tenn. Code
Ann. § 36-1-102(1)(A)(ii). Under Tennessee Code Annotated § 36-1-102(1)(A)(ii),
termination of parental rights may be appropriate if:
(a) The child has been removed from the home or the physical or legal
custody of a parent . . . 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 [D]epartment . . . ;
(b) The juvenile court found . . . that the [D]epartment . . . made reasonable
efforts to prevent removal of the child or that the circumstances of the
child’s situation prevented reasonable efforts from being made prior to the
child’s removal; and
(c) For a period of four (4) months following the physical removal, the
[D]epartment . . . made reasonable efforts to assist the parent . . . to
establish a suitable home for the child, but that the parent . . . ha[s] not
made reciprocal reasonable efforts to provide a suitable home and ha[s]
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that the [parent] will be able to provide a suitable home for the
child at an early date.
4
Mother’s argument focuses on subpart (c) of the second definition of
“abandonment” and the four month period following the physical removal of her
children. Mother describes the proof as “clear” that she “had established a suitable home
at some point between the removal [of the children] on July 6, 2016 and the Trial Home
Placement of September 11, 2018.” The Department counters that the trial home
placement ended because Mother lacked a suitable home.
We conclude that the evidence clearly and convincingly supports the finding of
abandonment by failure to provide a suitable home. A “suitable home” means something
“more than a proper physical living location.” Tenn. Dep’t of Children’s Servs. v. C.W.,
No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29,
2007). 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., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App.
June 10, 2014).
Here, the proof showed that Mother did not even provide a proper physical living
location. When it ended the trial home placement, the court found that Mother had issues
with the cleanliness of her home. The case manager testified that Mother had been
provided in-home services to teach her how to keep her home clean. Yet, when the case
manager visited the home during the trial home placement, she found trash everywhere.
Mother also could not demonstrate that she could care for the children. At least
one of the children came down with scabies. The case manager also reported that there
were truancy issues with the children during the trial home placement. According to the
case manager, Mother claimed “she couldn’t get [the children] up and she couldn’t get
them [to school].”
And the home was not free of domestic violence. The case manager testified that
the children’s safety in the home was her biggest concern because of incidents of
domestic violence. The violence stemmed from Mother allowing the putative father, his
mother, and Mother’s brother in the home. The court specifically noted these
“inappropriate people” when it ended the trial home placement.
2. Substantial Noncompliance
The juvenile court also found Mother was not in substantial compliance with the
requirements of the permanency plan. See Tenn. Code Ann. § 36-1-113(g)(2). The first
family permanency plan, ratified in September 2016, had the goal of returning the
children to Mother. To accomplish the goal, the plan contemplated that Mother would
provide a clean home, free of pests and trash; not incur any further legal charges;
participate in domestic violence education; receive case management services including
5
addressing her domestic violence history and decision making skills as they relate to
interactions with the children; maintain suitable housing; visit regularly with the children
and allow the Department to visit her home at least quarterly; keep her driver’s license
and registration and insurance current; have a legal source of income; and provide the
Department with updated information about her prescription history.
Not surprisingly given the length of time the children remained in the
Department’s custody, several permanency plans were developed after the first. The plan
following the first added the alternative goal of adoption of the children. Plans developed
in 2018 added additional responsibilities related to domestic violence, including notifying
the Department of domestic violence incidents and staying away from domestic-violence
perpetrators. The later plans also required Mother to take all prescribed medications;
complete a mental health assessment and follow any recommendations; participate in
group therapy; attend parenting classes; participate in a parenting assessment; sign
provider releases; complete parenting skills and family conflict counseling; interact with
the children in an age-appropriate manner and demonstrate appropriate discipline during
visits; and pay child support.
Before considering a parent’s compliance with a permanency plan, the court must
find that the permanency plan requirements were “reasonable and . . . related to
remedying the conditions that necessitate[d] foster care placement.” Tenn. Code Ann.
§ 37-2-403(a)(2)(C) (Supp. 2019); In re Valentine, 79 S.W.3d at 547. Permanency plan
requirements may focus on remedying “conditions related both to the child’s removal and
to family reunification.” In re Valentine, 79 S.W.3d at 547.
The children entered foster care primarily due to domestic violence and
environmental neglect issues. We agree with the juvenile court that the requirements of
the plan were reasonable and related to remedying these concerns.
Next, we must determine whether Mother’s noncompliance was substantial in
light of the importance of the requirements to the overall plan. See id. at 548-49. We
review the court’s findings of fact concerning compliance with the requirements of the
permanency plan de novo with a presumption of correctness. See id. at 547. But whether
any noncompliance constitutes “[s]ubstantial noncompliance is a question of law which
we review de novo with no presumption of correctness.” Id. at 548. Our concern is with
the parent’s efforts to comply with the plan, not the achievement of the plan’s desired
outcomes. In re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *8 (Tenn.
Ct. App. Mar. 2, 2009). A “[t]rivial, minor, or technical” deviation from the permanency
plan’s requirements does not qualify as substantial noncompliance. In re M.J.B., 140
S.W.3d 643, 656 (Tenn. Ct. App. 2004).
Mother argues that the fact that she was allowed a trial home placement
demonstrated that she was in compliance with her permanency plan. We disagree.
6
We conclude that the evidence is clear and convincing that Mother failed to
substantially comply with the requirements of the permanency plans. Other than
participating in visitation and having legal employment for an undetermined time, Mother
made little to no effort to address the other requirements of her plan. Mother did not
complete her domestic violence classes or comply with the recommendations following
her mental health evaluation.
Mother did not keep her home free of pests and trash. Despite providing Mother
with services designed to teach her how to get her home clean, the case manager testified
to several concerns when they could get access to the home. In addition, Mother
continued to allow inappropriate people into the home including a homeless person and
people who were known perpetrators of domestic violence.
3. Persistence of Conditions
The juvenile court also found termination of Mother’s parental rights appropriate
under Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly referred to as
“persistence of conditions.” See In re Audrey S., 182 S.W.3d 838, 871 (Tenn. Ct. App.
2005). This ground for termination 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, In re Kaliyah S., 455 S.W.3d at 555. So the question before the court is “the
likelihood that the child can be safely returned to the custody of 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. Persistence
of conditions may be a basis to terminate parental rights when:
The child has been removed from the home or the physical or legal
custody of a parent . . . 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 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 . . . ;
7
(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 . . . in the
near future; and
(iii) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3). Each of the statutory elements must be established
by clear and convincing evidence. In re Valentine, 79 S.W.3d at 550.
At the time of trial, the children had been removed from Mother’s custody for
more than six months. See Tenn. Code Ann. § 36-1-113(g)(3)(B) (“The six (6) months
must accrue on or before the first date the termination of parental rights petition is set to
be heard.”). And this record contains clear and convincing evidence that the conditions
preventing the children’s safe return to Mother remained. Throughout the three years that
the children were in foster care, the Department continued to visit Mother’s home. The
family service workers found half-eaten food lying out on tables with flies and bugs
surrounding them. There was often a lack of food in the house. And there were several
instances of Father, Father’s mother, and Mother’s brother being present at the home
causing calls to the police because of disagreements and altercations.
We further conclude that the evidence is clear and convincing that there was little
likelihood that these conditions would be remedied in the near future. The case manager
testified to an attempt to inspect Mother’s home just over a month prior to the trial.
Although no one was at home, the case manager found the outside of the home “very
unclean and concerning.” At the back door, she found
trash piled up . . . [,] some kind of substance, liquid substance, that was
splattered all over the back door and the wall outside. There was a thing of
cooked beans that looked like it had been thrown out that had flies and all
kinds of bugs surrounding it. There were empty beer cans back there.
There w[ere] pet food bowls that didn’t have anything in them but bugs.
The case manager described the smell as “pretty horrible.” On the front porch, the case
manager found partially eaten bread “surrounded by flies,” “a sheet that was covering
some kind of dirty substance, and a Mason jar full of [an] unidentified liquid.”
At Mother’s request, the case manager performed an inspection inside the home
the day before the trial. The case manager found only little in the way of furniture or
evidence that Mother was prepared to care for children.
8
In the living room [Mother] had like a laundry line hanging across the . . .
room with comforters hanging on them . . . . Then she had a dog in the
home and a little kitten. In my opinion the dog was observed to be pretty –
his ribs were showing, he was extremely underweight. Went into the
kitchen, there was a severe lack of food in the kitchen. In the freezer, all I
observed was a pop bottle. And there was some cereal and a scar[c]e
amount of cans. [Mother] then took me upstairs where there were three
bedrooms. One bedroom was empty except for a dresser and a fish tank
and some posters on the wall. Another bedroom had about three twin
mattresses that were extremely dirty, stacked up next to the wall. And then
another bedroom, where there was a mattress on the floor, a twin-size
mattress on the floor, was a fan and a comforter on it. The mattress also
appeared to be extremely dirty.
And the case manager noted an overwhelming smell of cigarettes in the home.
The continuation of the parent and child relationship also greatly diminished the
children’s chances of early integration into a safe, stable, and permanent home. At the
time of trial, the children had been in foster care for over three years. They had bonded
with their latest foster family and were flourishing in the care of the foster parents. And
the foster parents were interested in adopting the children.
4. Failure to Manifest an Ability and Willingness to Assume Custody or Financial
Responsibility for the Child
Finally, the court found termination of parental rights appropriate under Tennessee
Code Annotated § 36-1-113(g)(14). Under this ground, a parent’s rights may be
terminated if he or she
[1] has failed to manifest, by act or omission, an ability and willingness to
personally assume legal and physical custody or financial responsibility of
the child, and [2] placing the child in the person’s legal and physical
custody would pose a risk of substantial harm to the physical or
psychological welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). Both prongs must be established by clear and
convincing evidence. See In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL
1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019).
We conclude that terminating Mother’s parental rights on the ground of failure to
manifest an ability and willingness to assume legal and physical custody was appropriate.
The Department established by clear and convincing evidence that Mother failed to
manifest both an ability and willingness to personally assume legal and physical custody
9
and financial responsibility for her children.2 Mother was given the opportunity of a trial
home placement, which failed due to continued issues with cleanliness and the presence
of inappropriate people. And during the trial home placement, the children had issues
with truancy and at least one child developed scabies.
Mother never demonstrated that she could keep her home clean and suitable for
children. Her domestic violence issues and mental health issues also remained
unaddressed. Despite all the services she was offered, Mother remained unable to care
for or support her children.
The evidence is equally clear and convincing that returning the children to
Mother’s custody would pose a risk of substantial harm to their physical or psychological
welfare. Mother’s continued inability to maintain a safe, clean home are a risk to the
children’s safety. So we can conclude the children, more likely than not, faced a real
hazard or danger of harm if returned to Mother. See Ray v. Ray, 83 S.W.3d 726, 732
(Tenn. Ct. App. 2001).
B.
Because “[n]ot all parental misconduct is irredeemable,” our parental termination
“statutes recognize the possibility that terminating an unfit parent’s parental rights is not
always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.
2005). So even if a statutory ground for termination is established by clear and
convincing evidence, we must also determine whether termination of parental rights is in
the child’s best interests. Tennessee Code Annotated § 36-1-113(i) lists nine factors that
courts must consider in making a best interest analysis. The “factors are illustrative, not
exclusive, and any party to the termination proceeding is free to offer proof of any other
factor relevant to the best interests analysis.” In re Gabriella D., 531 S.W.3d 662, 681
(Tenn. 2017). In reaching a decision, “the court must consider all of the statutory factors,
as well as any other relevant proof any party offers.” Id. at 682. The best interest
analysis is a fact-intensive inquiry, and each case is unique. White v. Moody, 171 S.W.3d
187, 193-94 (Tenn. Ct. App. 2004).
2
This Court has split over the proper interpretation of the first prong of Tennessee Code
Annotated § 36-1-113(g)(14). See In re Ellie K., No. M2019-01269-COA-R3-PT, 2020 WL 1943522, at
*9-11 (Tenn. Ct. App. Apr. 23, 2020) (describing the Court’s differing views on the first prong). The
split concerns whether a parent must fail to manifest both an ability and willingness to assume custody or
financial responsibility or whether a parent must fail to manifest either an ability or willingness to assume
custody or financial responsibility. Compare In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL
2447044, at *7 (Tenn. Ct. App. May 31, 2018), with In re Amynn K., No. E2017-01866-COA-R3-PT,
2018 WL 3058280, at *14 (Tenn. Ct. App. June 20, 2018). Here, under either view, the Department met
its burden of proof.
10
The focus of this analysis is on what is best for the child, not what is best for the
parent. In re Marr, 194 S.W.3d at 499. Additionally, the analysis should take into
account “the impact on the child of a decision that has the legal effect of reducing the
parent to the role of a complete stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). Although “[f]acts relevant to a
child’s best interests need only be established by a preponderance of the evidence, . . . the
combined weight of the proven facts [must] amount[] to clear and convincing evidence
that termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d 507,
535 (Tenn. 2016).
After considering all the statutory factors, the juvenile court determined that
termination of parental rights was in the children’s best interest. Mother argues that the
evidence preponderates against the juvenile court’s factual findings relative to the first
two statutory best interest factors. The first two factors look at the parent’s current
lifestyle and living conditions. The first factor focuses on whether the parent “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 [parent’s] home.” Tenn. Code Ann. § 36-1-113(i)(1).
The second factor considers the potential for lasting change. See id. § 36-1-113(i)(2)
(asking “[w]hether the parent . . . 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”). The juvenile court found that Mother
failed to make changes in her conduct or circumstances and that lasting change did not
appear possible.
The evidence supports the findings made relative to factors one and two. Mother
continued to have an unclean home and to allow inappropriate people into her home. She
did not finish her domestic violence classes or comply with the recommendations from
her mental health assessment. The Department provided family preservation services to
teach Mother how to maintain her home, but those efforts had no discernable impact.
Factor three takes into account the regularity of the parent’s visitation. See id.
§ 36-1-113(i)(3). And factor four considers whether “a meaningful relationship has
otherwise been established between the parent . . . and the child.” Id. § 36-1-113(i)(4).
The court found both factors weighed against termination.
The fifth factor focuses on “[t]he effect a change of caretakers and physical
environment is likely to have on the child’s emotional, psychological and medical
condition.” Id. § 36-1-113(i)(5). The court found this factor weighed in favor of
termination because of the condition of Mother’s home. But Mother argues that the
factor should weigh against termination because the children had only been in their
current foster placement a relatively short period of time.
11
Although the evidence showed that the children had been with their current foster
family less than two months, the evidence does not preponderate against the juvenile
court’s finding that the children would be adversely affected by a return to Mother. So
we agree that the evidence relative to the fifth factor weighed in favor of termination.
Under the sixth factor, the court determines whether the parent or another person
residing with the parent “has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child” or another person in the home. Id.
§ 36-1-113(i)(6). The seventh factor focuses on the parent’s home environment and
ability to be a safe and stable caregiver. See id. § 36-1-113(i)(7) (“Whether the physical
environment of the parent’s . . . home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of [intoxicants] as may render the
parent . . . consistently unable to care for the child in a safe and stable manner[.]”). The
juvenile court found that Mother had neglected the children. The children were living in
an unsafe environment because of the lack of cleanliness and the presence of perpetrators
of domestic violence. There was also a lack of supervision and substance abuse.
Mother complains that, in weighing factors six and seven, the court relied too
heavily on “past conditions.” But factor six necessarily requires consideration of past
conditions. As for factor seven, Mother’s argument ignores the inspection of her home
that took place the day before the trial.
The eighth statutory factor evaluates the parent’s mental and emotional health,
asking “[w]hether the parent’s . . . mental and/or emotional status would be detrimental to
the child or prevent the parent . . . from effectively providing safe and stable care and
supervision for the child.” Id. § 36-1-113(i)(8). The court also determined that this
factor favored termination. Mother completed a mental health evaluation, but refused to
comply with the treatment recommendations.
Factor nine takes into account the payment of child support. See id. § 36-1-
113(i)(9). The court found that Mother had “paid some child support.” And Mother
argues that factor nine should weigh against termination. Because the court did not
expressly state that the factor weighed for or against termination, for purposes of our
review, we accept Mother’s contention that factor nine, like factors three and four,
weighed against termination.
Still we reach the same conclusion as the juvenile court. The combined weight of
the proven facts amounts to clear and convincing evidence that termination of Mother’s
parental rights is in the children’s best interest.
12
III.
The record contains clear and convincing evidence to support terminating
Mother’s parental rights on four statutory grounds. The record also contains clear and
convincing evidence that termination is in the children’s best interest. So we affirm the
termination of Mother’s parental rights.
_________________________________
W. NEAL MCBRAYER, JUDGE
13