In re River L. ( 2021 )

03/04/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 20, 2020 Session
IN RE RIVER L. ET AL.
Appeal from the Juvenile Court for Fentress County
No. 2018-JV-160 Michael Todd Burnett, Judge
No. M2019-02049-COA-R3-PT
A mother appeals the juvenile court’s decision to terminate her parental rights based on
four statutory grounds. She also challenges the juvenile court’s finding by clear and
convincing evidence that termination of her parental rights was in the best interest of the
children. We affirm the juvenile court’s termination of the mother’s parental rights.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Evan Matthew Wright and Emily Elizabeth Wright, Jamestown, Tennessee, for the
appellant, Karen C.
Herbert H. Slatery, III, Attorney General and Reporter, and Matthew Daniel Cloutier,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
Amber Rhea Clark, Clarkrange, Tennessee, guardian ad litem.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Ryder and River were born in 2010 and 2013, respectively, to Karen C. (“Mother”)
and Richard L., (“Father”).1 On April 18, 2017, the Tennessee Department of Children’s
Services (“DCS” or “the Department”) received a referral alleging that Mother was abusing
drugs. The Department began investigating the referral and made multiple attempts to
1
The juvenile court terminated Father’s parental rights, but he did not appeal the termination.
locate Mother but was unable to locate her for several weeks. While searching for Mother,
DCS learned that Ryder had issues related to truancy. Mother failed to appear in court for
Ryder’s truancy hearing on May 3, 2017, and a truancy warrant issued for her arrest. She
was arrested for that warrant the following day. Upon her arrest, Mother was also charged
with child abuse because Ryder told the arresting officer that Mother “had hit him in the
mouth.”
The Department met with Mother in jail the day after her arrest. During this
meeting, the DCS caseworker asked Mother to submit to a drug screen, but Mother was
unable to produce a specimen at that time. Ultimately, Mother submitted to a drug screen
given by her probation officer and tested positive for methamphetamine. The Department
then met with Ryder about the child abuse allegation. Ryder disclosed to a case worker
that Mother “hit him in his mouth because he was talking” and that she often disciplined
him with a switch. Ryder further disclosed that he observed Mother “use needles and
shots” to take “medicine.” He described Mother as taking her medicine by putting a
“needle in the middle of the arm.”
On May 5, 2017, immediately after meeting with Mother and Ryder, DCS filed a
petition for dependency and neglect. That same day, the juvenile court found that probable
cause existed to believe that the children were dependent and neglected and placed them
in DCS’s custody. The court heard the petition for dependency and neglect on July 10,
2017, and entered an order adjudicating the children dependent and neglected and ordering
that they remain in DCS’s custody.
On June 13, 2017, DCS developed an initial permanency plan to address several of
Mother’s issues including housing, substance abuse, and mental health. The juvenile court
ratified that plan on July 10, 2017. Following Mother’s release from jail, DCS sought to
assist her with the requirements of the permanency plan but was unable to locate her. The
Department developed a second permanency plan on December 14, 2017. When the
juvenile court ratified that plan on February 18, 2018, Mother was again incarcerated.
Thereafter, Mother was released from jail, and the Department once more sought to assist
her with the requirements of the permanency plans. The Department attempted to reach
Mother by telephone and Facebook Messenger on a monthly basis but was unable to
establish contact with her. The requirements of the permanency plans will be discussed
later in this opinion.
The Department filed a petition to terminate Mother’s parental rights on July 27,
2018. After a one-day trial, the juvenile court entered an order terminating Mother’s
parental rights. The court determined that the following grounds for termination had been
proven by clear and convincing evidence: (1) abandonment by failure to provide a suitable
home, (2) substantial noncompliance with the permanency plans, (3) persistence of
conditions, and (4) failure to manifest an ability and willingness to assume custody of the
-2-
children. The court further determined that termination of Mother’s parental rights was in
the children’s best interest.
Mother appealed and presents the following issues: whether the juvenile court erred
in finding by clear and convincing evidence that grounds existed to terminate her parental
rights, whether the juvenile court erred in determining that termination of her parental
rights was in the best interest of the children, whether the juvenile court abused its
discretion in its rulings on the admissibility of evidence, and whether the juvenile court’s
evidentiary rulings denied her due process.
STANDARD OF REVIEW
Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d 674, 678
(Tenn. 1994)). Although this right is fundamental, it is not absolute and may be terminated
in certain situations. In re Angela E., 303 S.W.3d at 250. Our legislature has identified
“‘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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., IV., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005)).
Tennessee Code Annotated section 36-1-113 provides the grounds and procedures
for terminating parental rights. First, a petitioner seeking to terminate parental rights must
prove that at least one ground for termination exists. Tenn. Code Ann. § 36-1-113(c)(1);
In re Angela E., 303 S.W.3d at 251. Second, a petitioner must prove that terminating
parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The termination of a parent’s rights is one of the most serious decisions courts make
because “[t]erminating parental rights has the legal effect of reducing the parent to the role
of a complete stranger,” In re W.B., IV, 2005 WL 1021618, at *6, “and of ‘severing forever
all legal rights and obligations of the parent or guardian.’” Id. (quoting Tenn. Code Ann.
§ 36-1-113(l)(1)). Consequently, a parent has a constitutional right to fundamentally fair
procedures during termination proceedings. In re Hannah C., No. M2016-02052-COA-
R3-PT, 2018 WL 558522, at *2 (Tenn. Ct. App. Jan. 24, 2018) (citing In re Carrington H.,
483 S.W.3d 507, 522 (Tenn. 2016)).
Tennessee law ensures fundamental fairness in termination proceedings by
requiring a heightened standard of proof—clear and convincing evidence. See Tenn. Code
Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d at 522. Before a parent’s rights
-3-
may be terminated, a petitioner must prove both the grounds and the child’s best interest
by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79
S.W.3d at 546. “Clear and convincing evidence ‘establishes that the truth of the facts
asserted is highly probable, and eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” In re Serenity B., No. M2013-
02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)).
We review the trial court’s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re
Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we
must then make our own determination “as to whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, amount to clear and convincing
evidence of the elements necessary to terminate parental rights.” In re Carrington H., 483
S.W.3d at 524.
ANALYSIS
I. Evidentiary Issues.
We begin by addressing the numerous evidentiary issues raised by Mother. A
decision regarding the admission or exclusion of evidence falls within the sound discretion
of the trial court. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008); In re Kandace D., No.
E2017-00830-COA-R3-PT, 2018 WL 324452, at *10 (Tenn. Ct. App. Jan. 8, 2018).
Therefore, appellate courts decline to disturb a trial court’s ruling on evidence absent an
abuse of discretion. Banks, 271 S.W.3d at 116. A court abuses its discretion when it
“‘applie[s] incorrect legal standards, reache[s] an illogical conclusion, base[s] its decision
on a clearly erroneous assessment of the evidence, or employ[s] reasoning that causes an
injustice to the complaining party.’” Id. (quoting Konvalinka v. Chattanooga-Hamilton
Cty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). “Appellate courts should permit a
discretionary decision to stand if reasonable judicial minds can differ concerning its
soundness.” White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999); see
also In re Kandace D., 2018 WL 324452, at *10.
A. Drug screen report.
Mother first contends that a report containing the results of one of her drug screens
constituted “a hearsay skunk” and should not have been admitted to prove that she failed
to address her substance abuse issues. During direct examination, Mother’s probation
officer, Terry Hall, testified that, as part of his duty as a probation officer, he would usually
meet with a client once a month and drug screen the client if he felt it was necessary. He
met with Mother when her probation case was first assigned to him, but he did not
administer a drug screen to her during that meeting because he felt it was unnecessary. Mr.
-4-
Hall did not meet with Mother again in the months that followed because she failed to
report as required. Thus, he did not administer any drug screens to her during that time.
Mr. Hall stated that the first drug screen report he had in Mother’s case file was
dated October 18, 2017, the date of one of her arrests. He acknowledged that he did not
administer that drug screen to Mother. Instead, employees of the Fentress County jail
administered it. Mr. Hall merely had a copy of the report showing the results of that drug
screen. When Mr. Hall began to testify about the results contained in the report, Mother’s
attorney objected on the basis of hearsay. The Department responded that the business
records exception to the hearsay rule applied to the drug screen report and argued as
follows:
Your Honor, [Mr. Hall] just testified that it’s part of his duty as a probation
officer to meet with a client once a month and drug-screen. And I would
think that those requirements create a duty to him to inquire about any drug
screens that an officer performed on his client - - on his case load. That is
knowledge that is required for him to do his job to maintain a probation
officer status.
Without any further foundation, the juvenile court allowed Mr. Hall to testify that the report
showed that Mother failed the October 18, 2017 drug screen.
Tennessee Rule of Evidence 801(c) defines hearsay as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Tennessee Rule of Evidence 803(6) contains what is
commonly referred to as the business records exception to the hearsay rule and provides as
follows:
A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses made at or near the time by or from
information transmitted by a person with knowledge and a business duty to
record or transmit if kept in the course of a regularly conducted business
activity and if it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the
testimony of the custodian or other qualified witness or by certification that
complies with Rule 902(11) or a statute permitting certification, unless the
source of information or the method or circumstances of preparation indicate
lack of trustworthiness. The term “business” as used in this paragraph
includes business, institution, profession, occupation, and calling of every
kind, whether or not conducted for profit.
This exception “rests on the premise that records regularly kept in the normal course of
business are inherently trustworthy and reliable.” Alexander v. Inman, 903 S.W.2d 686,
-5-
700 (Tenn. Ct. App. 1995). “Its purpose . . . is to facilitate the use of business records by
eliminating the expense and inconvenience of calling numerous witnesses involved in the
preparation and maintenance of the records.” Id. For this exception to apply, the party
offering a business record into evidence must either provide a properly certified copy of
the record or lay the appropriate foundation for the admission of the business record, “as
shown by the testimony of the custodian or other qualified witness.” TENN. R. EVID.
803(6); see also Alexander, 903 S.W.2d at 700. To be considered qualified, “the witness
must have knowledge of the method of preparing and preserving the business records at
issue” and “must be able to testify as to the identity of the record, the mode of preparation,
and whether the record was made in the regular course of business at or near the time of
the event recorded in the business record.” Neil P. Cohen et al., TENNESSEE LAW OF
EVIDENCE, § 8.11[11] (6th ed. 2011); see also Alexander, 903 S.W.2d at 700.
Here, the Department did not offer into evidence a certified copy of the October 18,
2017 drug screen report from the Fentress County jail. Instead, DCS introduced that record
through Mr. Hall’s testimony. Mr. Hall was not the custodian of that record. As a
probation officer, he may well have been personally familiar with the Fentress County jail’s
record-keeping systems and procedures as they related to drug screens, which could have
made him a qualified witness. The Department, however, failed to elicit testimony from
him to lay a foundation showing that he possessed the necessary information to make him
a qualified witness. As a result, DCS failed to meet the requirements of Tenn. R. Evid.
803(6), and Mr. Hall should not have been allowed to testify about the October 18 2017
drug screen report.
We note that Tennessee Rule of Appellate Procedure 36(b) provides, in pertinent
part:
A final judgment from which relief is available and otherwise appropriate
shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would
result in prejudice to the judicial process.
The record before us contains alternative evidence that clearly and convincingly supports
the juvenile court’s finding that Mother failed to address her substance abuse issues. In
addition to testifying about the October 18, 2017 drug screen, Mr. Hall testified that Mother
submitted to another drug screen on October 24, 2018 (approximately four months prior to
trial), and she failed that drug screen.2 Moreover, Mother admitted to failing that drug
screen and to incurring an additional charge for drug possession shortly before the
2
In her appellate brief, Mother asserts that the October 24, 2018 report, like that from October 18, 2017,
was inadmissible hearsay. Although Mr. Hall stated that the report of the October 24, 2018 drug screen
results was provided by the jail personnel who performed the drug screen on Mother while she was in jail,
Mother failed to object to this report as inadmissible hearsay at trial. Thus, this argument is waived.
-6-
termination hearing. We conclude, therefore, that any error the juvenile court committed
in admitting hearsay evidence relating to the October 18, 2017 drug screen report was
harmless due to alternative competent evidence supporting the judgment.
B. Statements about the October 18, 2017 drug screen heard by DCS case worker.
Next, Mother contends that the juvenile court abused its discretion in allowing Nina
Hargis, a DCS case worker, to testify about the results from the October 18, 2017 drug
screen discussed above. Ms. Hargis was present in the courtroom during Mr. Hall’s
testimony and overheard him testify about the results contained in the October 18, 2017
drug screen report. During direct examination, DCS asked Ms. Hargis what she heard Mr.
Hall state regarding the results of the drug screen. Mother raised a hearsay objection which
the juvenile court overruled, finding Mr. Hall’s statements about the results of the drug
screen were not hearsay.
As previously mentioned, hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Tenn. R. Evid. 801(c) (emphasis added). Mr. Hall made the
statements about the October 18, 2017 drug screen report at the termination hearing.
Therefore, the juvenile court correctly found that they were not hearsay, and Ms. Hargis
could testify to what she heard him say during the hearing. Her testimony regarding what
she heard in court, however, should not have been considered as substantive proof that
Mother failed the October 18, 2017 drug screen because the drug screen report should not
have come in during Mr. Hall’s testimony due to DCS’s failure to satisfy the requirements
of the business records exception and because Mother objected to the report. See generally
1 MCCORMICK ON EVID. § 54 (8th ed.) (“If the testimony is received without objection, the
testimony becomes part of the evidence in the case” and “may be relied on in argument;
and alone or in part it can support a verdict or finding.”) Allowing the statements to be
considered as substantive proof would permit DCS to ram the inadmissible drug screen
report through the back door.3 However, because the record contains alternative admissible
3
Mother also contends that the juvenile court erred in considering testimony from another DCS case worker,
Brittany Massey, about Mother failing two drug screens. Initially, Ms. Massey claimed to have personally
administered two drug screens to Mother which returned positive for drugs. During cross-examination,
however, Ms. Massey admitted that she did not personally administer any valid drug screens to Mother.
Rather, the drug screens she referenced were administered by someone else. She knew the results of those
drug screens because Mr. Hall provided her with them. On appeal, Mother contends that the juvenile court
should not have considered this testimony because it constituted hearsay—the same hearsay to which
Mother had already objected during Mr. Hall’s testimony. A thorough review of the record shows that the
first drug screen Ms. Massey refers to was dated May 5, 2017, the day DCS first contacted Mother. Mother
does not identify where in the record she objected to that particular drug screen report as hearsay, and we
have found no such objection. See TENN. R. APP. P. (27)(a)(7). Furthermore, it is unclear from Ms.
Massey’s testimony whether the second drug screen she referred to was from October 18, 2017, or October
24, 2018, or from some other date. Thus, we are unable to discern whether this second drug screen she
references was, indeed, one to which Mother objected. Nevertheless, if the juvenile court improperly
-7-
evidence regarding Mother’s continued substance abuse, we conclude that any error
committed by the admission of Ms. Hargis’s testimony relating to the drug screen report
was harmless.
C. Exhibit 29.
Next, Mother contends that the juvenile court abused its discretion in admitting
Exhibit 29 into evidence. Exhibit 29 is a document printed from the website
mississippi.arrests.org that contains information purportedly relating to one of Mother’s
prior arrests. At the outset of the termination hearing, DCS included Exhibit 29 in a stack
of exhibits it distributed for the juvenile court and Mother to discuss before admitting the
exhibits into evidence. Mother objected to Exhibit 29 based on hearsay. The juvenile court
entered the exhibit for identification purposes only and reserved the issue of whether to
admit the exhibit into evidence until such time as it was addressed in the testimony.
During Ms. Hargis’s testimony, DCS again attempted to admit Exhibit 29 into
evidence, and Mother renewed her objection to the document as inadmissible hearsay.
Relying on the business records exception, DCS responded as follows:
Your Honor, just to reemphasize the exception to the hearsay rule, it allows
for business records that are kept in the ordinary course of DCS business - -
which I think I’ve already laid the foundation for - - would show that it’s an
exception to hearsay to allow the document, such as this, to come in under
that rule.
The juvenile court determined that Exhibit 29 should not be admitted into evidence because
the document was not self-authenticating under Tenn. Rs. Evid. 901 and 902 and because
DCS failed to lay the appropriate foundation for the admission of the document as a
business record due to Ms. Hargis being neither the custodian of the record nor a qualified
witness capable of authenticating the document. Because the juvenile court did not, in fact,
permit DCS to admit Exhibit 29 into evidence for the purposes of proof, Mother’s argument
on this issue is without merit.
D. Exhibit 35.
Mother next asserts that the juvenile court abused its discretion in admitting Exhibit
35 into evidence during the guardian ad litem’s cross-examination of the children’s foster
mother, Rhonda F. (“Foster Mother”). Exhibit 35 is a letter from a doctor addressed to
“Guardian of River.” The letter explains River’s medical diagnosis and provides the date
admitted this testimony, the error was harmless because the record contained alternative proof clearly and
convincingly supporting the juvenile court’s finding that Mother failed to address her substance abuse
issues.
-8-
he was last seen by the doctor. When Mother objected to the letter as inadmissible hearsay,
the attorney for DCS offered the following puzzling response:
Your Honor, I think - - it’s addressed to the guardian. I think she [Foster
Mother] can answer questions about how she needs to care for this child’s
medical needs. But one of the - - she’s already testified all the things that
she’s had to do for the State to keep the children in her home. One of them
is making sure they go to doctor appointments on time.
The trial court overruled the objection and admitted the letter into evidence.
Although the letter was addressed to “Guardian of River” and Foster Mother was
his guardian, the letter was still an out of court statement offered for the truth of the matter
asserted. See TENN. R. EVID. 801(c). Therefore, Exhibit 35 constituted hearsay and was
not admissible absent an applicable exception to the hearsay rule. The response provided
by DCS fails to identify any exception to the hearsay rule. Moreover, Exhibit 35 was not
properly certified and did not constitute a self-authenticating document under Tenn. R.
Evid. 902. We conclude that the juvenile court abused its discretion in admitting Exhibit
35 into evidence. This error was harmless, however, because other credible evidence
supports the juvenile court’s finding that River had a medical condition and that Foster
Mother “stepped up for these children and [took] them to doctors’ appointments when
needed.” Specifically, Foster Mother stated that she took River to the doctor every six
months to have his blood drawn and tested.
E. Timeline.
Mother takes issue with the juvenile court’s decision to permit DCS to enter into
evidence a timeline depicting Mother’s various arrests to show that she continued to incur
criminal charges throughout the custodial episode. During direct examination, Ms. Hargis
explained that she created the timeline
because [Mother’s] whereabouts for the majority of this case were unknown
and I was presented with a lot of incarcerations throughout the state of
Tennessee, as well as the state of Alabama and Mississippi, so I created a
timeline to help me gauge where she was, when she was [there], how many
days she was not incarcerated.
When DCS moved to enter the timeline into evidence, Mother objected to the document as
inadmissible hearsay. DCS responded that the timeline was admissible under the business
records exception because Ms. Hargis had explained why she created the document. The
juvenile court overruled the objection and admitted the timeline into evidence.
-9-
As previously stated, the business records exception allows for a business record to
be introduced by the custodian of those records or by a qualified witness. TENN. R. EVID.
803(6). “Whatever his or her title the witness must be able to testify as to the identity of
the record, the mode of preparation, and whether the record was made in the regular course
of business at or near the time of the recorded event.” State v. Baker, 842 S.W.2d 261, 264
(Tenn. Crim. App. 1992). Ms. Hargis identified the timeline and explained how and why
it was prepared, but DCS failed to ask her whether creating such a timeline was a regularly
conducted DCS practice and whether she created the document near the time of the
recorded events. Therefore, DCS failed to establish the requirements for Rule 803(6), and
the timeline should not have been admitted into evidence. The admission of this timeline
to show that Mother continued to incur criminal charges was harmless error, however,
because Mother admitted that she had been arrested multiple times during this case and
that she had a pending drug charge at the time of trial.
F. Expert opinion testimony.
Mother asserts that the juvenile court abused its discretion in allowing the children’s
therapist, Sarah Poore, to testify regarding why the children needed therapy. Near the
outset of her testimony, Ms. Poore was tendered and accepted without objection as an
expert witness in the area of children’s counseling. She testified that, in determining the
issues the children needed to address in therapy, she relied on an intake process and an
initial assessment performed by a different therapist. Ms. Poore explained that it was
normal to rely on such information from outside sources when determining the issues a
patient needs to address in therapy. As Ms. Poore began describing the issues the children
presented, Mother objected on the basis of hearsay. The juvenile court overruled the
objection and permitted Ms. Poore to testify about the issues the children needed to address
when they began therapy.
According to Mother, Ms. Poore should not have been permitted to testify about
why the children required counseling because Ms. Poore based her determination on
inadmissible hearsay. We respectfully disagree. “An expert witness may base his or her
opinion on ‘(1) information actually perceived by the expert; (2) information made known
to the expert by others; and (3) information reasonably relied upon by experts in the
particular field.’” State v. Smith, No. E2017-00764-CCA-R3-CD, 2018 WL 3217734, at
*5 (Tenn. Crim. App. July 2, 2018) (quoting State v. Kennedy, 7 S.W.3d 58, 66 (Tenn.
Crim. App. 1999)); see also TENN. R. EVID. 703. Tennessee Rule of Evidence 703
“contemplates that inherently reliable information is admissible to show the basis for an
expert’s opinion, even if the information would otherwise constitute inadmissible hearsay.”
Smith, 2018 WL 3217734, at *5 (emphasis added). It is, in fact, common for expert
witnesses to base their opinions on reliable but inadmissible facts or data. Id. The
underlying information is reliable if it is “such that experts in that field reasonably rely on
. . . in forming the same kinds of opinions or inferences that the expert in [a particular]
case did.” Id. Thus, as our Supreme Court has stated, “[w]here the expert’s testimony is
- 10 -
otherwise reliable and experts in the field would reasonably rely upon such evidence,
concerns are more properly addressed through vigorous cross-examination rather than
exclusion of the testimony.” State v. Scott, 275 S.W.3d 395, 409 (Tenn. 2009). Because
Ms. Poore relied on statements made by others that are of the sort commonly relied upon
by mental health experts, the juvenile court did not err in permitting Ms. Poore to testify
regarding the reasons for the children’s therapy.
Mother also contends that the juvenile court abused its discretion in permitting Ms.
Poore to testify about what the children told her about attending school. Mother objected
to the testimony on the basis of hearsay, but the juvenile court permitted the testimony
under Tenn. R. Evid. 803(25), which provides an exception to the hearsay rule in the
following circumstances:
Provided that the circumstances indicate trustworthiness, statements about
abuse or neglect made by a child alleged to be the victim of physical, sexual,
or psychological abuse or neglect, offered in a civil action concerning . . .
termination of parental rights pursuant to Tenn. Code Ann. § 37-1-147 and
Tenn. Code Ann. § 36-1-113 . . . .
Educational neglect was one of the reasons the children were removed from Mother’s
custody. Statements made by the children regarding educational neglect they experienced
while in Mother’s care may have been admissible under Rule 803(25), but those were not
the statements to which Ms. Poore testified. Rather, the children’s statements were that,
since entering the foster home, “they were actively involved in school with no behavior
problems in school, and no grade problems in school.” Because these statements were not
about abuse or neglect, the juvenile court abused its discretion in admitting them into
evidence. We conclude, however, that the admission of these statements was harmless
because Foster Mother testified that the children were doing well in school and were no
longer exhibiting behavioral problems.
G. Non-expert testimony opinion testimony.
Mother also takes issue with the juvenile court allowing Ms. Hargis to testify about
whether she believed Mother’s conduct “show[ed] willful abandonment” because Ms.
Hargis was not an expert witness. Mother correctly points out that Ms. Hargis was not
recognized as an expert witness and, as such, could not give “[t]estimony in the form of an
opinion or inference . . . embrac[ing] an ultimate issue to be decided by the trier of fact.”
TENN. R. EVID. 704; see also Blackburn v. Murphy, 737 S.W.2d 529, 531-32 (Tenn. 1987).
The juvenile court, however, terminated Mother’s parental rights on the ground of
abandonment by failure to provide a suitable home, which does not contain a provision
relating to willfulness. See Tenn. Code Ann. § 36-1-102(1)(A). Thus, any error the
juvenile court committed in allowing Ms. Hargis to testify about whether she believed
Mother’s conduct constituted willfulness was harmless.
- 11 -
H. Irrelevant evidence.
Mother argues that the trial court abused its discretion in allowing the guardian ad
litem to question Mother about the removal of other children who were not removed at the
same time as Ryder and River and were not subject to this termination proceeding.
According to Mother, such evidence should not have been admitted because it was
irrelevant to determining whether Mother’s parental rights should be terminated.
“Relevant evidence” is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” TENN. R. EVID. 401. When Mother objected to
the question’s relevance, the guardian ad litem responded that it was relevant to
establishing the persistence of conditions ground.
Tennessee Code Annotated section 36-1-113(g)(3) allows a court to terminate a
parent’s rights when the conditions that necessitated removal persist for six months with
little likelihood that those conditions will be remedied. The statute makes no mention of
considering time periods prior to the removal. A court may consider a time-period longer
than six months, but the conditions must have persisted during the time following the
removal. See Tenn. Code Ann. § 36-1-113(g)(3). Therefore, evidence regarding the
removal of children not at issue in this case was not relevant to this termination proceeding.
The error was harmless, however, because, as discussed below, the record contained
alternative evidence demonstrating that the conditions necessitating removal persisted.
II. Due process.
Mother challenges the juvenile court’s decision to terminate her parental rights
based upon the due process clauses contained in the Fifth and Fourteenth Amendments to
the United States Constitution and the due process clause contained in article I, section 8
of the Tennessee Constitution. The Tennessee Supreme Court has consistently interpreted
article I, section 8 “as conferring identical due process protections as its federal
counterparts.” Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 407
(Tenn. 2013). Due process, under both the federal and state constitutions, provides
procedural and substantive protections. Id.A. Procedural due process.
Mother contends that the juvenile court’s decision terminating her parental rights
should be reversed because the court’s application of evidentiary rules deprived her of
procedural due process. “‘The most basic principle underpinning procedural due process
is that individuals be given an opportunity to have their legal claims heard at a meaningful
time and in a meaningful manner.’” Id. (quoting Lynch v. City of Jellico, 205 S.W.3d 384,
- 12 -
391 (Tenn. 2006)). When determining whether this principle has been satisfied, courts
consider the following three factors:
“First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.”
Id. (quoting Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 732 (Tenn.
2012)). Additionally, “due process is flexible and calls for such procedural protections as
the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
Here, we must determine whether the juvenile court’s application of evidentiary
rules deprived Mother of the benefit of having her claims heard at a meaningful time and
in a meaningful manner. The private interest at stake is Mother’s right to the care, custody,
and control of her children. The state’s interest is, of course, the welfare of the children.
Thus, the procedural issue is whether the juvenile court’s erroneously admitting certain
pieces of evidence deprived Mother an opportunity to defend against the claims in the
termination petition. A thorough review of the record shows that, although it may have
erroneously admitted some pieces of evidence, the juvenile court admitted and considered
sufficient competent evidence to render the erroneous evidence redundant, cumulative, and
harmless. Additionally, the juvenile court allowed Mother to present arguments and to
introduce proof contradicting that presented by DCS. Mother was not deprived of an
opportunity to be heard at meaningful time and in a meaningful manner. We conclude,
therefore, that Mother was not deprived of her procedural due process rights.
B. Substantive due process.
Mother also asserts that the juvenile court’s decision terminating her parental rights
should be reversed because the court’s erroneous application of evidentiary rules denied
her substantive due process. Substantive due process “‘bars oppressive government action
regardless of the fairness of the procedures used to implement the action.’” In re Walwyn,
531 S.W.3d 131, 138-39 (Tenn. 2017) (quoting Mansell, 417 S.W.3d at 409). This doctrine
“has been used to protect rights such as the right to marry, have children, and make child-
rearing decisions.” Id. at 139. Courts divide substantive due process claims into two
categories: “(1) deprivations of a fundamental constitutional guarantee, and (2)
government actions that are ‘arbitrary, or conscience shocking, in a constitutional sense.’”
Mansell, 417 S.W.3d at 409 (quoting Lynch, 205 S.W.3d at 392).
Mother contends that the juvenile court’s decision to terminate her parental rights
deprived her of her fundamental right to the care, custody, and control of her children
- 13 -
because the court’s decision was “based on severely lacking proof.” Mother correctly
points out that her right to the care, custody, and control of her children constitutes a
fundamental right. See Stanley, 405 U.S. at 651; In re Angela E., 303 S.W.3d at 249-50.
We disagree, however, that the juvenile court deprived her of substantive due process by
terminating her parental rights after making particular evidentiary decisions. Although the
juvenile court admittedly erred in allowing certain inadmissible evidence into the record,
alternative evidence in the record that was properly admitted clearly and convincingly
supports the juvenile court’s decision. Notably, Mother provided much of the admissible
evidence because she admitted that she continued abusing illegal substances and incurring
criminal charges. This argument is without merit.
III. Grounds for termination.
A. Abandonment by failure to provide a suitable home.
A parent’s rights may be terminated for abandoning his or her child. Tenn. Code
Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102(1)(A) provides five
alternative definitions of “abandonment,” but only the definition provided in subsection
(ii) is relevant in this case. That subsection defines “abandonment” as:
(a) The child has been removed from the home or the physical or legal
custody of a parent or parents or guardian or guardians by a court order at
any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and the child
was placed in the custody of the department or a licensed child-placing
agency;
(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 guardian or guardians have not made reciprocal
reasonable efforts to provide a suitable home and have demonstrated a lack
of concern for the child to such a degree that it appears unlikely that they will
be able to provide a suitable home for the child at an early date. The efforts
of the department or agency to assist a parent or guardian in establishing a
suitable home for the child shall be found to be reasonable if such efforts
equal or exceed the efforts of the parent or guardian toward the same goal,
- 14 -
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).
For purposes of this ground, DCS must make “reasonable efforts” to assist parents
in obtaining a suitable home by using its “‘superior insight and training.’” In re Jamel H.,
No. E2014-02539-COA-R3-PT, 2015 WL 4197220, at *6 (Tenn. Ct. App. July 13, 2015)
(quoting State Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 790, 801 (Tenn. Ct. App.
2008)). To be considered reasonable, the Department’s efforts need not be “Herculean,”
In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct.
App. June 10, 2014), but they must be equal to or greater than those of the parent. Tenn.
Code Ann. § 36-1-102(1)(A)(ii)(c).
A suitable home requires “‘more than a proper physical living location.’” In re
Daniel B., Jr., No. E2019-01063-COA-R3-PT, 2020 WL 3955703, at *4 (Tenn. Ct. App.
July 10, 2020) (quoting 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 also
requires that “[a]ppropriate care and attention must be given to the child,” In re Matthew
T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20,
2016), and that the home “be free of drugs and domestic violence,” In re Hannah H., 2014
WL 2587397, at *9. Compliance with assessments and counseling is “directly related to
the establishment and maintenance of a suitable home.” In re M.F.O., No. M2008-01322-
COA-R3-PT, 2009 WL 1456319, at *5 (Tenn. Ct. App. May 21, 2009).
The juvenile court removed the children and placed them in DCS custody on May
5, 2017. After an adjudication hearing in July 2017, the juvenile court entered an order
finding both that the children were dependent and neglected and that DCS had made
reasonable efforts to prevent their removal. Thus, the Department established the first two
requirements of this ground for termination. See Tenn. Code Ann. § 36-1-102(1)(A)(ii)(a),
(b).
Regarding the statute’s third requirement, we have previously stated that DCS “may
establish this ground by offering proof of reasonable efforts during any four-month period
following a child’s removal.” In re Roderick R., No. E2017-01504-COA-R3-PT, 2018 WL
1748000, at *11 n.13 (Tenn. Ct. App. Apr. 11, 2018); see also In re Rahjada W., No.
E2019-01798-COA-R3-PT, 2020 WL 2893434, at *5 (Tenn. Ct. App. June 3, 2020). Here,
Mother was not incarcerated between March and June 2018. During that four-month
period, DCS attempted to locate Mother in order to assist her with establishing a suitable
home. Specifically, the case manager called Mother twice at her last reported telephone
number, and the case manager called the Genesis House in Cumberland County where
Mother was purportedly staying. The case manager also called the Fentress County
Sheriff’s Department to request assistance in determining Mother’s whereabouts. Despite
- 15 -
these numerous efforts, DCS was unable to locate Mother during the relevant four-month
period.
By contrast, during the nearly two years following the children’s removal, Mother
made little effort to find appropriate housing. Throughout this case, Mother claimed that
she owned a home. When DCS visited the home, however, it was dilapidated and appeared
not to have been lived in for some time. At trial, Mother admitted that she had not lived in
that home for nearly two years because she had been traveling to various places in the
Southeast. Mother later told DCS that she was renting a home from a landlord who
permitted her to live there rent-free in exchange for renovations, but she failed to provide
any supporting documentation. Similarly, Mother failed to make the lifestyle changes
necessary for her to safely parent. She continued to incur arrests and charges for possession
of illegal substances throughout this custodial episode, and she failed to address her mental
health issues. Mother started at least one treatment program, but she failed to submit proof
that she completed that program or any similar program. Based on the foregoing evidence,
we conclude that the efforts by DCS exceeded any efforts by Mother.
In sum, there is clear and convincing evidence in the record that Mother
demonstrated a lacked of concern for the children to such a degree that there is little
likelihood that she would be able to establish a suitable home in the near future. The trial
court did not err in terminating Mother’s parental rights based on this ground for
termination.
B. Substantial noncompliance.
The trial court also terminated Mother’s parental rights pursuant to Tenn. Code Ann.
§ 36-1-113(g)(2), which provides that a parent’s rights may be terminated when “[t]here
has been substantial noncompliance by the parent . . . with the statement of responsibilities
in a permanency plan pursuant to title 37, chapter 2, part 4.” To succeed under this ground,
DCS must “demonstrate first that the requirements of the permanency plan are reasonable
and related to remedying the conditions that caused the child to be removed from the
parent’s custody in the first place.” In re M.J.B., 643, 656 (Tenn. Ct. App. 2004).
Conditions that make foster care placement necessary may “include conditions related both
to the child’s removal and to family reunification.” In re Valentine, 79 S.W.3d at 547. The
court must then determine whether the noncompliance is substantial. In re M.J.B., 140
S.W.3d at 656. In assessing a parent’s substantial noncompliance with a permanency plan,
the court should measure “both the degree of noncompliance and the weight assigned to
that requirement.” In re Valentine, 79 S.W.3d at 548. “Trivial, minor, or technical
deviations from a permanency plan’s requirements will not be deemed to amount to
substantial noncompliance.” In re M.J.B., 140 S.W.3d at 656.
The initial permanency plan, dated June 13, 2017, required Mother to complete the
following requirements: (1) obtain appropriate housing, (2) abstain from illegal substances
- 16 -
and provide proof of a drug-free home, (3) not obtain any new legal charges, (4) submit to
a psychological evaluation with a parenting component and complete any
recommendations, and (5) attend all visitations with her children. The second permanency
plan, dated December 14, 2017, added the following requirements: (1) sign release of
information to allow DCS to monitor her progress with providers, (2) submit to announced
and unannounced drug screens and test negative for illegal substances, (3) submit to an
alcohol and drug assessment, (4) provide proof of stable employment or means of legal
support for the children, (5) communicate with DCS, by phone calls or texts, at least once
a week, (6) allow DCS to conduct unannounced home visits, and (7) abide by all laws and
prevent further incarcerations.
The juvenile court ratified both plans and found that the requirements of both plans
were reasonable and related to remedying the conditions that necessitated foster care for
the children. The children entered foster care primarily due to Mother’s lack of housing,
substance abuse problems, and mental health issues. We agree with the juvenile court that
the requirements of the plans were reasonable and necessary to remedying these concerns.
During the nearly two years between the children’s removal and trial, Mother made
little to no effort to address the permanency plans’ requirements. As previously discussed,
Mother claimed to own a home but admitted that it was in a dilapidated condition because
she had not lived there in two years. Mother also claimed that she lived in a home where
the landlord allowed her to live rent-free in exchange for home renovations, but she never
provided proof to DCS regarding this claim. In fact, she refused to provide DCS with that
property’s address or the address of any other property where she may have resided.
Therefore, DCS was never able to verify that Mother had obtained stable housing.
Mother failed to address her substance abuse and mental health issues. She admitted
to using drugs in 2018 and continued accruing criminal charges while the children were in
DCS custody. At the time of the termination hearing, Mother had a pending charge for
possession of methamphetamine that she incurred while incarcerated for another charge.
She stated that she submitted to an alcohol and drug assessment while at an inpatient
treatment facility. She failed to provide any documentation supporting this claim, however,
and she failed to sign a release to allow DCS to obtain any such documentation. Mother
further stated that she submitted to a psychological evaluation when the Fentress County
Sheriff’s Department sent her to a treatment facility following a suicide attempt during one
of her incarcerations. Once again, however, she failed to provide any supporting
documentation. In light of the foregoing, we conclude that the juvenile court properly
terminated Mother’s parental rights pursuant to this ground.
- 17 -
C. Persistence of conditions.
The juvenile court also terminated Mother’s parental rights pursuant to Tenn. Code
Ann. § 36-1-113(g)(3). This ground is often referred to as “persistence of conditions” and
allows courts to terminate parental rights in situations where:
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 . . . ;
(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)(A).
The persistence of conditions ground “focuse[s] on the results of the parent’s efforts
at improvement rather than the mere fact that he or she had made them.” In re Audrey S.,
182 S.W.3d 838, 874 (Tenn. Ct. App. 2005). The purpose behind this ground for
termination is “‘to prevent the child’s lingering in the uncertain status of foster child if a
parent cannot within a reasonable time demonstrate an 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 533, 555 (quoting In re A.R.,
No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct. App. Oct. 13,
2008)). Therefore, the question we must answer 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).
Here, there is no dispute that the children were removed from Mother’s custody by
order of the juvenile court based on a petition for dependency and neglect. See Tenn. Code
Ann. § 36-1-113(g)(3)(A). The children were removed due to Mother’s lack of housing,
- 18 -
substance abuse problems, and mental health issues. During the nearly two years following
the removal, Mother did virtually nothing to address these issues. At the time of removal,
Mother was incarcerated and, at the time of trial, Mother was incarcerated yet again. She
never provided DCS with proof that she had obtained stable housing. Indeed, she refused
to provide DCS with an address to visit so it could verify that she had housing. Mother
similarly failed to address her substance abuse issues. She admitted to using drugs in 2018
and, at the time of trial, she had pending charges for possession of methamphetamine.
Although Mother stated that she had entered a treatment program, she failed to provide any
documentation showing she completed that program or any similar program. Mother also
failed to provide any proof that she completed a mental health evaluation.
The continuation of the parent and child relationship in this case would greatly
diminish the children’s chances of integrating into a permanent home. By the time of the
termination hearing, the children had been living with Foster Mother for approximately
one year. Foster Mother testified that the children were “fearful” and had some behavioral
issues when they were first placed in her home. Those issues improved after the children
began attending therapy regularly. Ryder began doing well in school and made friends.
Both children bonded with Foster Mother and her two biological children. Foster Mother
stated that, to accommodate the children, she adjusted her life and built an addition onto
her home. Furthermore, she expressed a desire to adopt the children if they become
available for adoption. We conclude that the juvenile court did not err in terminating
Mother’s parental rights pursuant to this ground.
D. Failure to manifest an ability and willingness to assume custody.
Finally, the juvenile court found that DCS had proven by clear and convincing
evidence that Mother’s parental rights should be terminated pursuant to Tenn. Code Ann.
§ 36-1-113(g)(14). This ground requires a party to prove two elements by clear and
convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, a party must
prove that the parent failed to manifest “an ability and willingness to personally assume
legal and physical custody or financial responsibility of the child[ren].” Tenn. Code Ann.
§ 36-1-113(g)(14). Second, a party must prove that placing the children in the parent’s
“legal and physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14).
To establish the first prong, the party seeking to terminate parental rights need only
prove that a parent failed to manifest either an ability or a willingness to assume custody.
In re Neveah M., 614 S.W.3d 659, 677 (Tenn. 2020) (citing In re Amynn K., No. E2017-
01866-COA-R3-PT, 2018 WL 3058280, at *13-14 (Tenn. Ct. App. June 20, 2018)). Here,
Mother desired to reunite with her children, but her actions failed to demonstrate an ability
or a willingness to assume custody of them. See In re Nicholas C., No. E2019-00165-
COA-R3-PT, 2019 WL 3074070, at *17 (Tenn. Ct. App. July 15, 2019) (holding that the
parents’ desire to reunite with their children was insufficient to demonstrate a willingness
- 19 -
or an ability). For instance, she claimed to own a home and to be renting another home,
but she failed to provide any proof that either of these homes was suitable for the children.
She refused to even provide DCS with an address for those properties or any other property.
Mother disappeared for much of the nearly two years following the removal because she
was traveling to various states in the Southeast. Thus, for much of this case, DCS could
only locate Mother when she was incarcerated. At the time of the termination hearing,
Mother was incarcerated and had a pending charge for possession of methamphetamine
that she incurred while incarcerated for another charge. Furthermore, she completed
virtually none of the permanency plans’ requirements and failed to address her mental
health and substance abuse issues.
Regarding the second prong, the evidence in the record demonstrates that placing
the children in Mother’s custody “would pose a risk of substantial harm to the physical or
psychological welfare of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). “Substantial
harm” requires “‘a real hazard or danger that is not minor, trivial, or insignificant’” and,
“‘[w]hile the harm need not be inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more likely than not.’” In re Maya
R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *8 (Tenn. Ct. App. Apr. 4, 2018)
(quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)). Given that Mother failed
to address her mental health and substance abuse issues, placing the children with Mother
poses a substantial risk of exposing them to drug use. Moreover, Mother was again
incarcerated at the time of trial and had failed to provide DCS with the address of a suitable
home in which the children could live with her once she was released from jail.
For the aforementioned reasons, we conclude that the juvenile court did not err in
finding that DCS proved this ground by clear and convincing evidence.
III. Best interest.
Having determined that clear and convincing evidence of at least one statutory
ground exists to terminate Mother’s parental rights, we must next consider whether the trial
court properly determined that termination of Mother’s parental rights was in the best
interest of the children. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182
S.W.3d at 860. After a court finds that clear and convincing evidence exists to support a
ground for termination, the child’s interests diverge from those of the parent and the court
focuses on the child’s best interests. In re Audrey S., 182 S.W.3d at 877. A court must
view the child’s best interest from the perspective of the child, not that of the parent. Id.
at 878. A finding that at least one ground for termination of parental rights exists does not
necessarily require that a parent’s rights be terminated. Id. at 877. Because some parental
misconduct is redeemable, our termination of parental rights statutes recognize that
“terminating an unfit parent’s parental rights is not always in the child’s best interests.” Id.The facts a court considers in its best interest analysis must be proven by “a preponderance
of the evidence, not by clear and convincing evidence.” In re Kaliyah S., 455 S.W.3d at
- 20 -
555. Once a court makes the underlying factual findings, it should “consider the combined
weight of those facts to determine whether they amount to clear and convincing evidence
that termination is in the child’s best interest.” Id.When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court must consider the nine factors enumerated in Tenn. Code Ann. §
36-1-113(i). A trial court is not required to find that each of the enumerated factors exists
before concluding that it is in the best interest of the child to terminate a parent’s rights. In
re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Although in some circumstances
“the consideration of one factor may very well dictate the outcome of the analysis,” In re
Audrey S., 182 S.W.3d at 878, a court is still obligated to consider “all the factors and all
the proof,” In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017).
After considering all of the best interest factors, the juvenile court found that the
factors favored terminating Mother’s parental rights. See Tenn. Code Ann. § 36-1-113(i).
The evidence in the record before us does not preponderate against the juvenile court’s
findings of fact.
The first best interest factor considers whether a 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 home of the parent.” Tenn. Code Ann. § 36-1-113(i)(1). As discussed
in detail above, Mother failed to demonstrate that she could provide a suitable home for
the children. Moreover, at the time of trial, she was once again incarcerated and had failed
to address her substance abuse and mental health issues. She offered no proof that she had
completed an alcohol and drug assessment or proof that she had completed a treatment
program.
The second best interest factor focuses on a parent’s potential for lasting change by
examining “[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.” Tenn. Code Ann. § 36-1-
113(i)(2). Mother asserts that this factor does not favor terminating her parental rights
because DCS did not make any effort to assist her in reuniting with her children. We
respectfully disagree. During the twenty-one months prior to trial, DCS made numerous
attempts to contact Mother via phone calls and messages on Facebook to assist her with
the requirements of the permanency plans. Mother never responded. Instead, she
disappeared for the majority of this case so she could gallivant across the Southeast. The
only time DCS could locate her to provide her with any assistance was during her various
incarcerations. Thus, the record shows that DCS expended far more effort than Mother.
Under this set of circumstances, the Department’s efforts were reasonable.
Next, the juvenile court found that the fifth best interest factor was relevant and
weighed in favor of termination. This factor considers “[t]he effect a change of caretakers
- 21 -
and physical environment is likely to have on the child’s emotional, psychological and
medical condition.” Tenn. Code Ann. § 36-1-113(i)(5). At the time of trial, the children
had been in their current foster placement for approximately one year. The evidence
showed that they were thriving in the foster home. Both children had bonded with Foster
Mother, and Foster Mother wants to adopt them if they become available for adoption.
Conversely, Mother did not have the ability to care for her children because she was
incarcerated and had additional pending charges for drug possession. Therefore, changing
the children’s environment would likely have a negative effect on their “emotional,
psychological and medical condition.” Id.Finally, the juvenile court found that the seventh factor was relevant and favored
termination. Under this factor, a court considers a parent’s home environment. See Tenn.
Code Ann. § 36-1-113(i)(7) (“Whether the physical environment of the parent’s . . . home
is healthy and safe, . . . or whether there is such use of alcohol, controlled substances or
controlled substance analogues as may render the parent . . . consistently unable to care for
the child.”). At the time of the termination hearing, Mother was incarcerated. She had
failed to address her substance abuse issues and, in fact, was incarcerated due to drug-
related charges. Thus, as the juvenile court found, her use of controlled substances
rendered her “consistently unable to care for the children in a safe and stable manner.”
After considering the entire record, we conclude that the combined weight of the
proof establishes by clear and convincing evidence that termination of Mother’s parental
rights was in the children’s best interest.
CONCLUSION
We affirm the termination of Mother’s parental rights on all grounds and affirm the
juvenile court’s conclusion that termination of Mother’s parental rights was in the
children’s best interest. Costs of this appeal are assessed against the appellant, Karen C.,
for which execution may issue if necessary
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
- 22 -