In Re Dominic B. ( 2021 )

03/01/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 2, 2021
IN RE DOMINIC B.
Appeal from the Juvenile Court for Knox County
No. 178100 Timothy E. Irwin, Judge
___________________________________
No. E2020-01102-COA-R3-PT
___________________________________
This is an appeal from a termination of parental rights case. The trial court determined that
three grounds for termination had been established as to the child’s mother: abandonment
by failure to establish a suitable home pursuant to Tennessee Code Annotated section 36-
1-102(1)(A)(ii), persistence of conditions pursuant to Tennessee Code Annotated section
36-1-113(g)(3), and failure to manifest an ability and willingness to assume custody
pursuant to Tennessee Code Annotated section 36-1-113(g)(14). The court further
determined that the termination of the mother’s parental rights was in the child’s best
interests. Although we vacate two of the termination grounds due to insufficient findings,
we affirm the trial court’s conclusion that there is clear and convincing evidence to support
its finding of abandonment and its determination that the termination of the mother’s rights
is in the child’s best interests.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in
Part, Affirmed in Part and Remanded.
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which ANDY D. BENNETT
and JOHN W. MCCLARTY, JJ., joined.
Anna East Corcoran, Knoxville, Tennessee, for the appellant, Eva B.
Herbert H. Slattery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
The Appellant Eva B. (“Mother”) is the mother of Dominic B. (“Dominic”), the
child who is the subject of this appeal.1 Dominic, who was born in May 2013, was removed
from Mother’s care in October 2018 as a result of Mother’s mental health issues and
environmental neglect. In a petition requesting that the Knox County Juvenile Court (“the
Juvenile Court”) find Dominic to be dependent and neglected, the Department of
Children’s Services (“the Department”) alleged in pertinent part as follows:
1. Dominic . . . is dependent and neglected . . . because of the mother’s mental
health issues. The Department received a report of harm on July 9 2018, with
allegations of environmental neglect. The report alleged that the family did
not have power in their home. It also alleged that the mother constantly
yelled profanity at the child and that she does not take her psychological
medication appropriately.
2. The case was originally assigned to CPSA Lucas Lawson. Throughout July
and August, CPSA Lawson assisted the family with locating resources to pay
for electricity in the home and enrolling the child into Karns Elementary.
The mother was also provided two monthly bus passes.
3. The case was transferred to CPSA Copeland on September 30, 2018. CPSA
Copeland made multiple attempts to schedule home visits with the parents
but was unable to get cooperation from the mother. CPSA Copeland went to
the child’s school on October 16, 2018. The child’s teacher reported that
Dominic is frequently absent because the mother oversleeps and does not get
him to school. The child is reportedly behind in school and struggles with
his pencil grip. The school social worker [Ms. Courtney] has provided the
child with all of his school supplies. The child is also lacking in social and
verbal skills.
4. [Ms. Courtney] reported that the child has 13 unexcused absences for the
year. Ms. Courtney reported that the family has been without power since
June. Ms. Courtney reported that she had been to the family home twice and
that the family appeared to have “just gotten up” both times she went.
5. CPSA Copeland contacted Pam Tice on October 16, 2018. Ms. Tice has
previously been a resource for the family and has kept the child in the past.
She [reported] that the mother “spews toxic words” at the child when she is
not taking her medication. She reported that the mother has ongoing
problems with her electricity and that she and her parents have assisted the
mother with finances in the past. She reported that the mother has been
clinically depressed since the maternal grandmother passed away in 2010.
She reported that the mother has been unable to keep a job due to her mental
health and has been homeless at times because of this. Ms. Tice stated that
the child’s half-brother . . . would be a resource for the child but that he does
not get along with the mother.
1
This Court has a policy of protecting children’s identities in parental termination cases by
initializing the last names of the parties.
-2-
6. CPSA Copeland contacted . . . the child’s sister-in-law . . . on October 16,
2018. She reported that they have had concerns about Dominic since he was
born. She reported that they have kept him on multiple occasions. She
reported that they would be willing to serve as a placement for Dominic.
7. CPSA Copeland spoke to the mother on October 16, 2018. She reported that
she is behind on both her electricity bill and her rent. The mother reported
that her only income is food stamps. The mother reported that she has
clinical depression as well as anxiety but that she has not had access to her
medication for a “few months.” She reported that this makes it difficult for
her to leave her home.
....
9. The child was placed with his half-brother and sister-in-law . . . through an
immediate protection agreement. The have elected [to] become kinship
foster parents for the child.
The Juvenile Court entered a “Protective Custody Order” on October 25, 2018, wherein it
found there to be probable cause that Dominic was dependent and neglected, determined
reasonable efforts had been made to prevent his removal, and awarded temporary legal
custody to the Department. Later, on January 16, 2019, the Juvenile Court found Dominic
to be dependent and neglected.
The primary issues in this case related to Mother’s mental health and housing
situation, and after Dominic was removed, several permanency plans were created with the
aim of addressing these and other concerns. In the first permanency plan, created on
November 13, 2018, Mother was required to, among other things, complete a mental health
assessment and follow all treatment recommendations, take medications as prescribed and
cooperate with pill counts, obtain and maintain housing with working utilities, complete
parenting classes, obtain and maintain a legal source of income and provide proof of
income to the Department, demonstrate parenting skills during visitations with the child,
be on time to visitations, comply with all court orders, maintain contact with the
Department case manager at least twice a month, notify the Department of any changes in
her circumstances, sign any release of information forms as required, not incur new
charges, and resolve any pending legal matters. The requirements of Mother remained
essentially the same under subsequent permanency plans.
On January 3, 2020, the Department filed its “Petition to Terminate Parental Rights”
in the Juvenile Court, requesting that Mother’s parental rights to Dominic be terminated on
the following grounds: (1) abandonment through failure to provide a suitable home, (2)
substantial noncompliance with permanency plan, (3) persistent conditions, and (4) failure
to manifest an ability and willingness to assume custody. The petition further averred that
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termination of Mother’s parental rights was in Dominic’s best interests, claiming, among
other things, that Mother had not made changes in her conduct or circumstances and was
not in compliance with her mental health treatment recommendations. Additionally, the
petition alleged that Dominic had established a strong bond with his foster parents, who
wished to adopt him.
A trial on the Department’s petition occurred on July 23, 2020. The proof consisted
of live witnesses, as well as numerous documentary exhibits. Evidence was offered on
various areas of Mother’s life, particularly concerning her housing situation, employment
prospects, and mental health. At the time of trial, Mother had pending charges for burglary
and shoplifting. She testified that she had been working at McDonald’s for about three
weeks prior to trial and stated that she previously had a job at Hardee’s but had to find
another job once that restaurant closed. Regarding other employment she claimed to have
had held at times since October 2018, Mother testified as follows:
I know there’s one place called Krispy Kreme, I was working for
them. And then after that I applied at another McDonald’s last year, and I
worked there for six months last year. And I did a job -- I did some work
through one of the employment services called Resource, and then got this
job here recently. And I was doing a little part-time job, it was a temp job,
but it was working for Liberty Tax. It was a temporary job because it was
only seasonal.
Whereas Mother recalled at trial that she left her prior job at Krispy Kreme voluntarily,
Deidre West, a foster care worker for Dominic for much of the case,2 claimed that Mother
had previously reported to have been terminated from Krispy Kreme due to a tardiness
issue. Laura Griffin, a family services worker assigned to the case since December 13,
2019, stated that she had not been given proof of employment.
As for her housing situation, Mother testified that she had been living at KARM3
since the end of January and, before that, at the Salvation Army. She asserted that she had
started living at the Salvation Army in August 2019, and before that time, she had lived at
the Autumn Landing apartment complex. According to Ms. West, Mother’s housing at
Autumn Landing did not have power “for the majority of the time.” Ms. West’s testimony
further indicated that Mother had been evicted from Autumn Landing due to housekeeping
issues.
2
Ms. West was a foster care worker for Dominic between his October 2018 removal and June 4,
2019, and then again from October 2, 2019 until December 13, 2019. Ms. West had to initially stop working
on the case in June 2019 when she went on maternity leave.
3
As the Department notes in its brief, and as we have noted in previous cases, see, e.g., In re Crystal
W., No. E2020-00617-COA-R3-JV, 2021 WL 214823, at *2 (Tenn. Ct. App. Jan. 21, 2021), KARM stands
for “Knox Area Rescue Ministries.”
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Mother’s physical housing situation at the time of trial was no more amenable to a
life with Dominic than it had been at the time of his removal. Indeed, Mother testified that
Dominic could not stay with her at KARM, and she acknowledged that her lack of
appropriate housing was one of the reasons Dominic had been removed. Concerning her
efforts to find housing, Mother testified that she had previously applied for HUD housing
and had also applied for housing through “KCDC,”4 however, she was not approved.
Mother seemed to attribute some blame to the Department for her failure to secure
appropriate housing in the nearly two years since the child’s removal, and when asked if
the Department had given her information incident to Dominic’s removal about “where to
find providers, where to find housing, et cetera,” Mother answered in the negative, stating,
“They can say they have, but they have not.” Ms. West, by contrast, specifically testified
that she gave Mother a resource guide in November 2018. According to her, Mother had
no questions about it. Regarding evidence of Mother’s future intentions with regard to
housing, a letter dated July 6, 2020 was introduced at trial wherein a case manager for the
Helen Ross McNabb Center’s PATH5 program stated that Mother would be applying to the
Center’s Pleasantree Apartments, which was for single mothers.
On top of the concerns that existed as to Mother’s physical housing were those about
Mother’s mental health. Mother testified that she believed she had been diagnosed with
depression and anxiety before Dominic was ever born, and at trial, she testified that she
was on medications for depression, anxiety, and sleep disorder. Records introduced as
exhibits at trial confirmed diagnoses for generalized anxiety disorder, panic disorder, and
moderate recurrent major depression. Whereas the results of Mother’s mental health
assessment included recommendations for individual outpatient therapy, a psychiatric
evaluation, medication management, and homemaker skills, Mother had not fulfilled all of
these recommendations by trial. According to Ms. West, she had not been aware of Mother
attending therapy while she had the case. She further testified that Mother had not been
compliant with her medication management. Ms. Griffin also testified that she was not
aware that Mother had completed therapy.
Mother testified that she goes to Cherokee for therapy and gets medicine prescribed
through the McNabb Center. She stated that she had done therapy a couple of times in the
few months before trial. Paperwork introduced at trial from the “Knox County Adult
Clinic,” where Mother testified she had received medication, showed that Mother’s
services were cancelled in July 2019 due to her noncompliance and that she had
“canceled/no showed” to nine appointments. According to Mother, however, she had been
compliant with her medication since February 2020.
Although Mother testified that she wanted to get a psychiatric evaluation, she
4
As noted in the Department’s brief, KCDC stands for Knoxville’s Community Development
Corporation.
5
Project for Assistance in Transitioning from Homelessness (“PATH”).
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described her claimed difficulty in securing one. Ms. West testified that Mother had never
informed her that she had any issue with contacting providers or setting up evaluations,
and Ms. Griffin testified that she gave Mother a list of providers but stated that Mother did
not reach out and ask for resources regarding a psychiatrist until the day after there was a
permanency hearing on the case.
Proof was also offered about the relationship Mother and Dominic had exercised in
visitations, as well as concerning the relationships Dominic had with members of his foster
family. Regarding her visits with the child, Mother testified that the last few visits had
been “fine” but “not . . . easy” because they had been by video.6 Mother acknowledged,
however, that there had been “issues” with the visits that occurred before video visitation.
Ms. West testified that visitations between Mother and Dominic would “start out well” but
that Mother would “tend to get upset frequently with Dominic” and walked out on several
occasions. According to Ms. West, one visitation ended with Dominic in tears because
Mother had knocked down some blocks that Dominic had built up for a house. Ms. West
testified that Mother had missed one visit and was frequently late for visits. Although Ms.
West acknowledged that Mother had completed parenting classes, she further stated that
Mother had not learned to interact with Dominic appropriately and demonstrate that in
visitations. For her part, although Mother testified that she knew she “can’t keep [Dominic]
right now,” she stated that she loved him and would like a chance to raise him.
The child’s foster mother (“Foster Mother”) testified that Dominic was doing well
and had gone “from being just this boy that was just in his own little bubble to you can’t
get him to be quiet.” She testified that Dominic got along well with her other children, and
she indicated a desire to adopt Dominic if he were to become available for adoption. Foster
Mother testified that she and her husband had a pre-existing relationship with Dominic
before 2018, stating that her husband was the child’s “[h]alf brother.” She testified that
she had not encouraged Dominic to call her and her husband “mom and dad,” but stated
that was something that he chose to do. Ms. Griffin testified that Dominic was doing
“exceptionally well” and stated that he had made “tremendous progress in school.” She
further stated that Dominic referred to his foster siblings as his “brothers and sisters.”
Following the conclusion of the trial, the Juvenile Court entered an order
terminating Mother’s parental rights. With regards to grounds for termination, the Juvenile
Court concluded that Mother had abandoned Dominic through her failure to establish a
suitable home, that the conditions that led to Dominic’s removal continued to persist, and
that Mother had failed to manifest an ability and willingness to assume custody of
Dominic.7 The Juvenile Court further determined that the termination of Mother’s parental
6
Mother claimed that had not been anybody’s fault but stated it was “just because of everything
that’s going on,” presumably a reference to the COVID-19 pandemic.
7
Unaddressed by the Juvenile Court in its order was the Department’s pleaded assertion that
Mother was in substantial noncompliance with the permanency plans. This ground apparently has been
abandoned by the Department, as no reference to it is included in the Department’s appellate briefing.
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rights was in Dominic’s best interest. This appeal followed.
STANDARD OF REVIEW
“A biological parent’s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the due process clauses of
the federal and state constitutions.” In re M.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App.
2007). “Although this right is fundamental and superior to claims of other persons and the
government, it is not absolute.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007).
“It continues without interruption only as long as a parent has not relinquished it,
abandoned it, or engaged in conduct requiring its limitation or termination.” In re M.J.B.,
140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). In Tennessee, “[w]ell-defined circumstances
exist under which a parent’s rights may be terminated.” In re Roger T., No. W2014-02184-
COA-R3-PT, 2015 WL 1897696, at *6 (Tenn. Ct. App. Apr. 27, 2015). Pursuant to the
Tennessee Code, parties who have standing to seek the termination of a parent’s parental
rights must prove two things. They must first prove at least one of the statutory grounds
for termination. In re J.C.D., 254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-1-
113(c)(1)). Then, they must prove that termination of parental rights is in the child’s best
interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).
Because the decision to terminate a parent’s parental rights has “profound
consequences,” trial courts must apply a higher standard of proof in deciding termination
cases. In re M.L.P., 228 S.W.3d at 143. “To terminate parental rights, a court must
determine that clear and convincing evidence proves not only that statutory grounds exist
but also that termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). “Clear and convincing evidence
is evidence that eliminates any substantial doubt and that produces in the fact-finder’s mind
a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-COA-R3-PT, 2007 WL
2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007). This heightened burden of proof
“minimizes the risk of erroneous decisions.” In re M.L.P., 228 S.W.3d at 143.
Due to the heightened burden of proof required under the statute, we must adapt our
customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005). “First, we must review the trial court’s specific findings of fact de novo in
accordance with Tenn. R. App. P. 13(d).” In re M.J.B., 140 S.W.3d at 654. “Second, we
must determine whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required to
terminate a biological parent’s parental rights.” Id.According to the Juvenile Court’s oral ruling following the proof at trial, the Juvenile Court did not find
the ground to be sufficiently established.
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DISCUSSION
In her brief on appeal, Mother challenges the grounds for termination found by the
Juvenile Court and the court’s ruling that termination of her parental rights was in the best
interest of the child. Of course, by mandate of the Tennessee Supreme Court, our review
on appeal would ordinarily reach these matters regardless of whether Mother had
specifically raised them. In order to help “ensure that fundamental parental rights are not
terminated except upon sufficient proof, proper findings, and fundamentally fair
procedures,” we are required to review the trial court’s findings as to each ground for
termination and as to whether termination is in the child’s best interest. See In re
Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[I]n an appeal from an order
terminating parental rights the Court of Appeals must review the trial court’s findings as
to each ground for termination and as to whether termination is in the child’s best interests,
regardless of whether the parent challenges these findings on appeal.”).
Failure to Establish a Suitable Home
In its termination order, the Juvenile Court found, by clear and convincing evidence,
that Mother abandoned Dominic through her failure to provide a suitable home. This
particular ground of abandonment authorizes the termination of parental rights when:
(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,[8] and the child
was placed in the custody of the department or a licensed child-placing
agency;
(b) The juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-placing
agency made reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable efforts from
being made prior to the child’s removal; and
(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
8
Whereas the statute now clearly ties this ground to an order of removal 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,” Tenn. Code Ann. § 36-1-102(1)(A)(ii) (emphases added), the statute previously read to
require that the child be removed “as the result of a petition filed in the juvenile court in which the child
was found to be a dependent and neglected child.” See In re Kaden W., No. E2018-00983-COA-R3-PT,
2019 WL 2093317, at *6 (Tenn. Ct. App. May 13, 2019) (emphasis added) (quoting Tenn. Code Ann. §
36-1-102(1)(A)(ii)(2017)).
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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).
We agree that this ground has been clearly and convincingly established. First, the
proof clearly shows that Dominic was removed from Mother by the entry of a court order
in October 2018. That order followed the filing of a petition by the Department in the
Juvenile Court seeking to have Dominic declared dependent and neglected, and the order
indicated that Dominic was placed in the custody of the Department. Second, the order of
removal contained a finding that reasonable efforts had been made to prevent Dominic’s
removal from the home.9
As to the last element, whether the Department made reasonable efforts to assist
Mother in establishing a suitable home for a period of four months following Dominic’s
removal and whether Mother made reciprocal efforts to establish same, we note that the
Department’s efforts are deemed reasonable under the statute if its efforts “equal or exceed
the efforts of the parent . . . toward the same goal.” Id. It also should be noted that the
concept of a suitable home encompasses more than a proper physical location. In re
Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App. 2016). Specifically, the establishment
of a suitable home entails considerations as to whether “[a]ppropriate care and attention”
are given to the child at issue. In re Matthew T., No. M2015-00486-COA-R3-PT, 2016
WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016). Here, the Juvenile Court found that,
in the more than twenty months since Dominic’s removal, the Department had attempted
assistance by “providing referrals for mental health assessments, provid[ing] housing
resources, provid[ing] parenting education resources, and provid[ing] ongoing case
management.” In juxtaposition to the Department’s efforts to engage Mother, the Juvenile
Court found that Mother had “failed to provide a suitable home for the child” and had been
terminated from service providers, failed to follow recommendations for mental health
treatment, and resided in various facilities for a year that do not allow children to reside.
The Juvenile Court stated that Mother had not done anything to improve her circumstances
and concluded that her lack of effort signaled that she would not be able to provide a
9
As to this issue, we note that the record evidences that the Department became involved with the
family several months before Dominic’s removal, during which time the Department, among other things,
assisted with locating resources to pay for electricity in the home and made multiple attempts to schedule
home visits.
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suitable home for Dominic in the near future.
There is no question here that Mother had failed to establish a suitable home by the
time of trial. Mother openly acknowledged that Dominic could not stay where she resided.
One of her prior residences, where she stayed in the immediate wake of Dominic’s
removal, had also been lacking. As previously noted, Ms. West testified that Mother’s
housing at Autumn Landing did not have power “for the majority of the time,” and Mother
had been evicted from that housing due to housekeeping issues.
In her briefing, Mother complains of the Department’s efforts to assist her, a point
she also attempted to establish at trial. As previously detailed, when Mother was asked
during her testimony if the Department had given her information after Dominic’s removal
about “where to find providers, where to find housing, et cetera,” Mother stated the
Department had not. Of course, Ms. West testified that she had given Mother a resource
guide in November 2018 and that Mother had no questions about it. The Juvenile Court’s
findings reveal that it accredited the Department’s witness on this issue, and evidence in
the record reveals that the Department also developed permanency plans for Mother that
included responsibilities related to remedying the conditions that had necessitated foster
care, provided bus passes, referred Mother for parenting instruction, supervised visitation,
offered to put in a referral for mental health services and medication management, and
offered to complete a budget form, among other efforts.
Evidence in the record further shows that the Department attempted to schedule
home visits on several occasions but had been unsuccessful. According to a progress
report, Mother would ask a Department worker to come out but then would either not be
home or would ask to move the visit to another day. Whereas Mother’s housing at Autumn
Landing usually lacked electricity, the Department not only had given Mother a resource
guide, but it also specifically provided Mother with contact information for an employment
agency.
In addition to losing her housing at Autumn Landing and eventually obtaining
residence at KARM, where Dominic could not stay, Mother continued to neglect her
mental health. This was a key issue in this case. Again, a suitable home requires much
more than an appropriate physical structure. In re Navada N., 498 S.W.3d at 595.
Although Mother completed a mental health assessment, she never completed a psychiatric
evaluation as required.10 Testimony from a Department worker indicated that Mother had
been given a list of providers, and when Mother informed the Department she had
insurance, Mother had been informed how to call her insurer to request a list of providers.
Obviously, Mother’s failure to complete a psychiatric evaluation was a concern in this case
10
One of Mother’s permanency plan requirements was to follow treatment recommendations from
her mental health assessment. Submitting to a psychiatric evaluation was among Mother’s treatment
recommendations from her mental health assessment in this case.
- 10 -
given Mother’s mental health history and the fact that it had been specifically required as
one of her treatment recommendations. Although she claimed to be compliant with her
medication at trial, the proof showed that Mother had been noncompliant during a period
in the case, contributing at that time to a termination of services. Further, although Mother
also claimed to be in therapy, Ms. West was not aware that Mother had ever attended
therapy and Ms. Griffin was not aware of Mother ever completing therapy.
Notwithstanding Mother’s testimony at trial that the Department had not given her
resource information, the Juvenile Court accredited the testimony of the Department’s
witness on this point, and the evidence clearly showed that Mother had failed to establish
suitable housing despite the Department’s various efforts at assistance, both in the
immediate wake of Dominic’s removal but also across the entire pendency of the case. We
further conclude that there was clear and convincing evidence for the Juvenile Court to
find that Mother would not be able to provide a suitable home for Dominic in the near
future, and given all of the above, we hereby affirm its reliance on this ground for
termination.
Persistence of Conditions
The termination ground commonly known as “persistence of conditions” applies
when
[t]he 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,[11] 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;
11
Although this ground was previously only applicable if a juvenile court had adjudicated the child
to be dependent and neglected, see In re Jude M., No. E2020-00463-COA-R3-PT, 2020 WL 6233742, at
*11 n.4 (Tenn. Ct. App. Oct. 22, 2020), the current version of the statute, as noted herein, contains a
threshold requirement that the ground be predicated upon an order removing the child which was “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.” Tenn. Code Ann. § 36-1-113(g)(3)(A) (emphasis added).
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Tenn. Code. Ann. § 36-1-113(g)(3)(A). While the Juvenile Court’s order in this case
contains limited findings responsive to this ground, notably, it contains no findings relative
to (g)(3)(A)(iii) concerning whether “[t]he continuation of the parent . . . and child
relationship greatly diminishes the child’s chances of early integration into a safe, stable,
and permanent home.” Being an element of the statutory ground, it is a factor that must be
established and found. Indeed, “[t]he absence of appropriate findings supporting this
ground for termination is not a trivial concern.” In re Mickeal Z., No. E2018-01069-COA-
R3-PT, 2019 WL 337038, at *13 (Tenn. Ct. App. Jan. 25, 2019). In termination cases, “the
trial court is specifically directed by statute to ‘enter an order that makes specific findings
of fact and conclusions of law.’” Id. (quoting Tenn. Code Ann. § 36-1-113(k)). Because
the Juvenile Court did not make findings regarding each of the elements applicable to the
persistence of conditions ground, we hereby vacate the termination order with respect to
this ground.12
Failure to Manifest an Ability and Willingness to Personally Assume Custody or
Financial Responsibility of the Child
This ground for termination, which the Juvenile Court held was established, applies
under the following circumstances:
A parent or guardian 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 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) (emphases added). Similar to the previous ground for
termination, a deficiency exists here with respect to the Juvenile Court’s findings. As
evident by the language emphasized above, a finding that placing the child in the parent’s
custody would pose a risk of substantial harm to the child is a necessary component of the
statutory ground. The Juvenile Court’s order in the present case contains no such finding,
a fatal point the Department itself calls attention to in its appellate briefing. The
Department notes that it does not defend this ground for termination, and given the absence
of a requisite finding under the statute, we are compelled to vacate the Juvenile Court’s
order with respect to the ground. See In re Nevaeh B., No. E2020-00315-COA-R3-PT,
2020 WL 4920020, at *3 (Tenn. Ct. App. Aug. 20, 2020).13
12
We do not remand the case for further findings on the matter given our ultimate affirmance herein
of the Juvenile Court’s termination decision.
13
Unlike our decision in In re Nevaeh B., we do not remand the case for a particular finding on the
“substantial harm” issue here given that this record establishes another ground for termination and, as
discussed infra, that termination is in the child’s best interests. We simply vacate the termination order
with respect to this ground.
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Best Interests
When at least one ground for termination has been properly established against a
parent, as it has in this case, we turn our focus to whether termination of the parent’s
parental rights is in the child’s best interests. “Because not all parental conduct is
irredeemable, Tennessee’s termination of parental rights statutes recognize the possibility
that terminating an unfit parent’s parental rights is not always in the child’s best interest.”
In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013). As such, “[w]hen 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.” Id. at 572 (citing White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.
App. 2004)).
When conducting a best interests analysis, conflicts between the interests of the
parent and child are to be resolved in “favor of the rights and best interest of the child.” Id.at 573 (citing Tenn. Code Ann. § 36-1-101(d)). Importantly, the best interests analysis
“must be viewed from the child’s, rather than the parent’s, perspective.” White v. Moody,
171 S.W.3d 187, 194 (Tenn. Ct. App. 2004). In Tennessee, the General Assembly has
codified a list of nine non-exclusive factors that trial courts are to consider when
conducting a best interests inquiry in termination of parental rights proceedings. These
factors are as follows:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult in
the family or household;
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(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). “Ascertaining a child’s best interests does not call for a
rote examination” of these factors, and “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.” In re Audrey S., 182 S.W.3d at 878 (citing Moody, 171 S.W.3d
at 194).
In considering the factors under Tennessee Code Annotated section 36-1-113(i), the
Juvenile Court supported its conclusion that termination of Mother’s rights was in
Dominic’s best interest by noting that
 Mother had not made a lasting change in her home and circumstances that
would allow Dominic to be safely placed in her home.
 Mother had not completed mental health treatment.
 Mother did not have a physical home for the child to return.
 Mother had not made lasting changes in her lifestyle or conduct after
reasonable efforts by the Department to help.
 Dominic was bonded to the foster parents.
 The foster parents were willing to adopt Dominic.
 Mother’s mental and emotional state would be detrimental to Dominic
and prevent her from effectively parenting him.
 Changing caregivers would be determinantal to Dominic.
We agree that there is clear and convincing evidence to support the Juvenile Court’s
best interest determination. As noted by the Juvenile Court, at the time of the July 2020
trial, Mother did not have a proper home where Dominic could live with her. Nothing had
changed in that regard from the time of Dominic’s removal in the fall of 2018. Concerns
also still surrounded Mother’s mental health, as she had never fulfilled all
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recommendations stemming from her mental health assessment. In short, a lack of
demonstrated progress still plagued the very subject areas that prompted the Department’s
initial involvement in the case. Life with Mother was simply not an option for Dominic at
the time of trial, and Mother candidly admitted at trial that she “can’t keep [Dominic] right
now.” Although Mother no doubt expressed love for Dominic, the evidence at trial did not
provide any meaningful foundation to conclude that Mother would be in a position to
provide suitable care for Dominic in the near future. It is incumbent upon the court system
to look to what is in the child’s best interest, and in contrast to the concerns surrounding
Mother’s circumstances, the evidence at trial revealed that Dominic was doing well with
his foster family. He had a pre-existing relationship with his foster family through his
foster dad, who was his half-brother, and the proof indicated the foster family wanted to
adopt him. Because we conclude that the record provides clear and convincing evidence
that termination of Mother’s parental rights is in Dominic’s best interest, we hereby affirm
the Juvenile Court’s termination of her rights.
CONCLUSION
Due to insufficient findings, we vacate the Juvenile Court’s reliance on the
persistence of conditions ground for termination as well as the ground for termination based
on Mother’s alleged failure to manifest an ability and willingness to assume custody of
Dominic. We affirm, however, the Juvenile Court’s conclusion that there is clear and
convincing evidence to support both its finding of abandonment and its determination that
the termination of Mother’s parental rights is in Dominic’s best interest.
s/ Arnold B. Goldin
ARNOLD B. GOLDIN, JUDGE
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