In Re Jabari B. ( 2018 )

02/02/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 1, 2017
IN RE JABARI B.1
Appeal from the Juvenile Court for Davidson County
No. 219847 Sheila Calloway, Judge
No. M2017-00557-COA-R3-PT
This appeal involves the termination of a mother’s parental rights to her minor child.
Following a bench trial, the trial court found that clear and convincing evidence existed
to support the termination of the mother’s parental rights on the statutory grounds of
abandonment for failure to provide a suitable home, substantial noncompliance with the
requirements of the permanency plan, and the persistence of conditions which led to
removal. The court further found that termination of the mother’s rights was in the best
interest of the child. The mother appeals. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S. and BRANDON O. GIBSON, J., joined.
C. Michael Cardwell, Nashville, Tennessee, for the appellant, Tasha B.
Herbert H. Slatery, III, Attorney General and Reporter, and Kathryn A. Baker, Assistant
Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department
of Children’s Services.
1
This Court has a policy of protecting the identity of children in parental rights termination cases
by initializing the last name of the parties.
OPINION
I. BACKGROUND
Jabari B. was born to Tasha B. (“Mother”) and William L. (“Father”) (collectively
“the Parents”) in March 2010. Mother and Father never married. Father was not listed
on the Child’s birth certificate; however, Mother identified him as the father. He also
held himself out as the father.
The Tennessee Department of Children’s Services (“DCS”) removed the Child
from the Parents in the early morning hours of May 26, 2015, based upon an allegation of
abandonment. The record reflects that the Parents were without housing and took up
residence with a couple they recently met a few days prior to the Child’s removal. On
May 25, 2015, the Parents left the Child with the couple to purchase marijuana. The
couple notified DCS that the Child had been abandoned when the Parents did not
promptly return with the marijuana. The Parents later claimed that the couple advised
them that they could not stay unless they provided them with marijuana. The Child was
adjudicated as dependent and neglected by order of the court, entered on February 2,
2016, due to their placement of the Child in a position of improper guardianship and by
making the poor decision to leave him with strangers while they purchased marijuana.
Two permanency plans were entered, one on July 13, 2015, and a revised plan on
April 6, 2016, each of which contained the following requirements for each parent: (1)
obtain and maintain stable housing; (2) complete a parenting assessment and follow
recommendations; (3) complete a mental health assessment and follow recommendations;
(4) submit to random drug screens; (5) resolve legal issues; and (6) participate in
meetings and the Child’s medical and educational appointments. These plans were
ratified by the trial court. The record reflects that neither parent failed a drug screen
while the Child was in DCS custody and that allegations of drug abuse were unfounded.
DCS filed a petition to terminate Mother’s parental rights on June 3, 2016, based
upon the statutory grounds of abandonment for failure to remit support, to visit, and to
provide a suitable home; substantial noncompliance with the permanency plan; and the
persistence of conditions which led to removal.2 The case proceeded to a hearing in
October 2016. At that time, Mother still had not obtained stable housing, attended
parenting classes as indicated following her completion of the parenting assessment, or
completed a psychological assessment as indicated. She also did not appear for the
Child’s assessments or attend meetings regarding the Child’s care.
2
DCS also sought termination of Father’s parental rights. He is not a party to this appeal.
-2-
As pertinent to this appeal, Krishana Overstreet, a family service worker for DCS,
testified that she has been assigned to this case since the Child’s entry into custody. She
noted that this was her first case as a DCS employee and that she worked with Carla
Ballard in providing services. She provided that Mother has only attended one child and
family team meeting. She noted that Mother was also present for one foster board
hearing, a permanency plan staffing, and a court hearing
Ms. Overstreet asserted that housing has been an issue throughout the tenure of the
case. While Mother had a permanent mailing address with her maternal family, she was
living in shelters or hotel rooms with Father. Ms. Overstreet offered to provide services
but was told that housing had been secured; however, Mother’s leasing information was
never supplied as requested. She later visited an address supplied by Mother in August
2015, but there was no answer to her knock on the door. Further, there was no indication
that anyone lived there. Mother later confirmed that she no longer lived at that address.
She stated that Mother’s only confirmed residence was at Mother’s grandmother’s house.
There was not enough space in the home for the Child to reside, and those living there
indicated that the Child could not live there.
Ms. Overstreet stated that she provided a list of housing resources and provided
applications for special housing programs. She claimed that Mother never followed up
on the resources provided by her. Instead, Mother advised her that she was on a waiting
list for several other housing programs. However, Ms. Overstreet called the programs
and found no indication that Mother had actually filed an application.
Ms. Overstreet stated that Mother was approved for visitation supervised by her
and also had therapeutic visitation services through Camelot. She moved visitation to
several different locations and at different times, including the weekend to accommodate
her. She even provided bus passes for approximately two months. Mother failed to
arrive on time and attend regularly until February 2016. She acknowledged that since
that time, the Child responded positively and was responsive to Mother during visitation.
Ms. Overstreet stated that Mother did not participate in the development of the
permanency plans but was present when the court ratified the plans.3 Mother completed
her parenting assessment in February 2016. The recommendations were as follows:
attend intensive parenting classes, complete a psychological assessment, and receive
counseling for victims of domestic violence and attend a support group.4
3
The Parents also refused to sign the Criteria for Termination of Parental Rights.
4
Ms. Overstreet explained that Mother indicated that Father had attacked her in October 2015. Based
upon this allegation, she made sure that visitations were not scheduled at the same location.
-3-
Ms. Overstreet testified that Mother failed to attend parenting classes or complete
a psychological assessment following her completion of the parenting assessment. She
stated that she scheduled the psychological assessment and even provided transportation
but that Mother was not at the address provided by Mother at the scheduled time. She
noted that the driver waited for Mother for a full hour before finally leaving.
Ms. Overstreet stated that the Child was eligible for the regional intervention
program that would allow Mother the opportunity to receive instruction on how to
address the Child’s behavioral issues. Mother failed to participate. However, she did
participate in the development of the Child’s Individualized Education Program (“IEP”)
and attended a meeting in April 2016.
Ms. Overstreet recalled that at the time of removal, the Child did not speak and
was not prepared for entry into school, meaning he did not know “shapes or colors or
objects that children of his age should . . . know.” She provided that he was
developmentally delayed by approximately two years. She believed he has made a
“complete turnaround.” She stated,
[The Child] was unable to speak or interact with anyone other than people
he had known. He could not tell you what his name was. He knew his
mom and his dad’s name, and that was pretty much it. We would ask him
questions. He was nonverbal – his standard was really low for how old he
was. He talks now. He communicates with other people. He has a best
friend.
He was kind of – the only way to describe it, he was, in a sense, almost
feral how he was initially at the daycare center he was at. He would take
off his clothes and run around. He would bite and kind of hit the other
students at that last daycare. He actually got dismissed from the daycare
several times a week because of his behaviors.
She claimed that the Child is now doing “exceptionally well” even though he is still
delayed. She acknowledged that the Child cared for the Parents but explained that his
relationship with them was more of a friendship than a parental relationship.
Ms. Overstreet stated that the Child lives in a foster home with another child. She
provided that he was “extremely attached” to the child and referred to her as his sister.
She believed returning him to Mother at this point would diminish the progress he has
achieved. She expressed doubt as to whether Mother was capable and willing to
adequately address his needs or even her needs as evidenced by her continued lack of
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housing. She noted that the Child’s foster mother worked with him and even decorated
his room in an effort to further assist him in learning and identifying objects.
Mother denied knowledge concerning the various requirements contained in the
permanency plans. However, she agreed that there were certain tasks she was required to
complete to regain custody of the Child. She testified that she has attempted to secure
housing but that she has been repeatedly advised by various housing developments to
wait until the following year. She asserted that Ms. Overstreet never provided her with
housing resources or offered to assist her in completing a housing application. She
provided that Ms. Overstreet did not “want to be bothered” with her because of threats
made by Father. She stated that she secured housing in November and December 2015 in
a rooming house and that she provided Ms. Overstreet with the address. She later left the
rooming house when the rent increased. She stated that she has completed approximately
30 housing applications since that time.
Mother asserted that she completed her parenting assessment in February 2016.
She explained that she was unable to complete it before that time because of her work
schedule during the holidays. She failed to attend her psychological assessment because
Ms. Overstreet only provided one day’s notice. She explained that she was scheduled to
work that day and could not leave work. She further claimed that she could not attend
parenting classes because Ms. Overstreet failed to file the appropriate paperwork in time.
She denied receiving a list of classes and asserted that she telephoned Ms. Overstreet to
request assistance but that Ms. Overstreet did not return her call. She acknowledged her
failure to attend the Child’s medical appointments but claimed that she was unable to
attend due to her work schedule and lack of transportation. She stated that she has also
not received notice of any recent medical appointments or a copy of the Child’s IEP.5
Mother acknowledged that the Child exhibited signs of a speech delay at the time
of removal. She claimed that she was attempting to address the issue but had trouble
scheduling appointments through her insurance. She noted that he was on a waiting list
at Vanderbilt to address his speech and at Tom Joy Head Start prior to his removal.
Mother testified that she consistently maintained visitation when able and
provided toys and clothing at visitation. She explained that she scheduled her own
visitation through Camelot in December but that she missed visitation in January because
5
Ms. Overstreet testified in rebuttal that she experienced communication issues with Mother and
explained that Mother often claimed that she was not advised of certain appointments and denied receipt
of documents. She stated that due to their communication issues, she began to document their
communications, mailed notices and other information by certified letter, or required Mother to sign
documents indicating her receipt of said document. Several of said documents were identified and
accepted into the record.
-5-
Ms. Overstreet failed to return her calls. She described a loving relationship between
herself and the Child and claimed that she wished she could take him home with her. She
acknowledged that her housing remained unstable. She explained,
I’ve been trying to do a lot of things for my son. And even though they say
I don’t care about him, I have tried to do everything. I always want to see
him. I bring him stuff, not because the people want me to do things. I’ve
been trying to do things for my son. I’ve been caring, loving. I tell him I
love him. I don’t know what he’s going through at school, but I just pray
and hope that things get better with him and everything.
Foster Mother testified that she is employed and able to provide for the Child and
another child in her home that she adopted in 2015.6 She stated that the Child has resided
with her since the time of his removal and has adjusted well to her home and other
children. She noted that the Child did well in a special needs setting but that he had
exhibited some behavior problems recently. She believed it was a result of his
adjustment to the new school year with a new teacher. She expressed love and concern
for the Child and indicated intent to adopt if he were available for adoption.
Foster Mother testified that the Child exhibited signs of excitement prior to
visitation with Mother but that he was often “quiet” upon return and then would have
“outbursts” at school following visitation days. She agreed that Mother has provided the
Child with clothes and a birthday cake.
Following the hearing, the trial court rejected the grounds of abandonment for
failure to remit support or to visit. However, the court found clear and convincing
evidence to support termination of Mother’s parental rights based upon abandonment for
failure to provide a suitable home; substantial noncompliance with the permanency plan;
and the persistence of conditions which led to removal. The court further found that
termination of her parental rights was in the best interest of the Child. Mother timely
filed a notice of appeal signed by her attorney but not signed personally by Mother.
II. ISSUES
We consolidate and restate the issues on appeal as follows:
A. Whether Mother’s unsigned notice of appeal was jurisdictionally
deficient.
6
Her adult son also lives with her and helps her with the children.
-6-
B. Whether clear and convincing evidence supports the court’s
termination of Mother’s parental rights based upon a finding of
abandonment for failure to provide a suitable home pursuant to Tennessee
Code Annotated section 36-6-102(1)(A)(ii).
C. Whether clear and convincing evidence supports the court’s
termination of Mother’s parental rights based upon a finding of substantial
noncompliance with the permanency plan pursuant to Tennessee Code
Annotated section 36-1-113(g)(2).
D. Whether clear and convincing evidence supports the court’s
termination of Mother’s parental rights based upon the persistence of
conditions which led to removal pursuant to Tennessee Code Annotated
section 36-1-113(g)(3).
E. Whether clear and convincing evidence supports the court’s finding
that termination of Mother’s parental rights was in the best interest of the
Child pursuant to Tennessee Code Annotated section 36-1-113(i).
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “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.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).
While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination of
the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be
terminated only upon:
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(1) [a] finding by the court by clear and convincing evidence that the
grounds for termination of parental or guardianship rights have been
established; and
(2) [t]hat termination of the parent’s or guardian’s rights is in the best
interest[] of the child.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.
In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:
An appellate court reviews a trial court’s findings of fact in termination
proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
Rule 13(d), appellate courts review factual findings de novo on the record
and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its 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.
The trial court’s ruling that the evidence sufficiently supports termination
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of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness.
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).
IV. DISCUSSION
A.
As a threshold issue, we must consider first whether Mother’s unsigned notice of
appeal was jurisdictionally deficient. DCS argued in its responsive brief that this court
lacks jurisdiction to consider the appeal because the notice of appeal is not signed
personally by Mother as required by Tennessee Code Annotated section 36-1-124(d),
which provides as follows:
Any notice of appeal filed in a termination of parental rights action shall be
signed by the appellant.
Mother responded with a motion to amend her notice of appeal to comply with Section
36-1-124(d). We reserved ruling on the motion pending completion of the briefing
schedule and submission of the case to the court for a decision.
During the pendency of this appeal, our Supreme Court held that Section 36-1-
124(d) “does not establish a jurisdictional requirement.” See In re Da’Vante M., No.
M2017-00989-COA-R3-PT, 2017 WL 6346056, at *10 (Tenn. Ct. App. Dec. 12, 2017)
(relying upon the Court’s decision in holding that a notice of appeal not signed personally
by the appellant was not jurisdictionally deficient). The Court stated as follows:
Tennessee Code Annotated section 36-1-124(d) does not distinguish
between the appellant and his or her attorney. If the General Assembly had
intended to make such a distinction, then it could have done so by requiring
both the appellant and the appellant’s attorney to sign the notice of appeal.
Because section 36-1-124(d) does not require the appellant to sign
“personally” the notice of appeal and does not distinguish the appellant
from his or her attorney, we conclude that the word “appellant” includes an
attorney specifically authorized to file a notice of appeal on the appellant’s
behalf. We emphasize that no appeal should be taken in a termination of
parental rights proceeding without specific authorization from the client.
-9-
Construing the signature requirement of section 36-1-124(d) to require
specific authorization for a notice of appeal signed by an appellant’s
attorney strikes the appropriate balance between protecting the fundamental
rights of parents and acting in the best interests of children.
In re Bentley D., ––– S.W.3d ––––, ––––, 2017 WL 5623577, at *5 (Tenn. Nov. 22,
2017) (internal citations and footnotes omitted). Here, Mother’s counsel signed her
notice of appeal based upon her specific instructions as counsel of record in the
termination proceeding. Accordingly, we hold that the notice of appeal was not
jurisdictionally deficient in keeping with the Supreme Court’s decision in In re Bentley
D.
B.
A parent may be found to have abandoned his or her child by failing to establish a
suitable home. The relevant statutory provision provides, in pertinent part, as follows:
The child has been removed from the home of the [parent] as the result of a
petition filed in the juvenile court in which the child was found to be a
dependent and neglected child [ ], and the child was placed in the custody
of the department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition is filed
finds, that the department or 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 for a period of four (4) months following the removal,
the department or agency has made reasonable efforts to assist the [parent]
to establish a suitable home for the child, but that the [parent has] made no
reasonable efforts to provide a suitable home and [has] 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] in establishing a
suitable home for the child may be found to be reasonable if such efforts
exceed the efforts of the [parent] toward the same goal, when the [parent] is
aware that the child is in the custody of the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii) (emphasis added). Termination for failure to
provide a suitable home requires a finding, supported by clear and convincing evidence
that a parent failed to provide a suitable home for his or her child even after DCS assisted
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that parent in his or her attempt to establish a suitable home.7 Tenn. Code Ann. § 36-1-
102(1)(A)(ii). DCS is required to use its “superior insight and training to assist parents . .
. whether the parents ask for assistance or not.” State, Dep’t of Childrens Servs. v. Estes,
284 S.W.3d 790, 801 (Tenn. Ct. App. 2008).
Mother argues that DCS failed to assist her in her search for housing but that she
made reasonable efforts during the pertinent time period, May 26, 2015, through
September 26, 2015, as evidenced by her acquisition of housing in August 2015 and
again in November and December 2015. She concedes that her residency lasted a short
time but argues that her efforts were reasonable and not demonstrative of a lack of
concern for the Child. The record does not support Mother’s claim that DCS failed to
assist her in securing suitable housing. Mother simply failed to accept the assistance
provided. While we commend Mother for obtaining housing on two separate occasions,
she failed to maintain said housing long enough for DCS to even confirm her residency
and its suitability for the Child. Mother was still without housing at the time of the
hearing. Her failure to properly address her living situation demonstrates a lack of
concern for the Child such that it appears unlikely that she will be able to provide a
suitable home at an early date. With these considerations in mind, we conclude that there
was clear and convincing evidence to establish that Mother abandoned the Child by
failing to provide a suitable home.
C.
Tennessee law requires the development of a plan of care for each foster child and
further requires that the plan include parental responsibilities that are reasonably related
to the plan’s goal. Tenn. Code Ann. § 37-2-403(a)(2)(A). A ground for termination of
parental rights exists when a petitioner proves by clear and convincing evidence that
“[t]here has been substantial noncompliance by the parent or guardian with the statement
of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-113(g)(2). To
establish noncompliance, the trial court must initially find “that the requirements of the
permanency plans 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., 140
S.W.3d at 656; see In re Valentine, 79 S.W.3d at 547. When the trial court does not
make such findings, the appellate court should review the issue de novo. In re Valentine,
79 S.W.3d at 547. Second, the court must find that the parent’s noncompliance is
substantial, In re M.J.B., 140 S.W.3d at 656, meaning that the parent must be in
7
Our Supreme Court specifically overruled the progeny of cases requiring “DCS to prove by clear and
convincing evidence that it made reasonable efforts to reunify as a precondition to termination of parental
rights.” In re Kaliyah S., 455 S.W.3d 533, 555, n. 34 (Tenn. 2015). However, that holding does not
abrogate DCS’s responsibility to make reasonable efforts to assist parents in establishing a suitable home
pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(ii).
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“noncompliance with requirements in a permanency plan that are reasonable and related
to remedying the conditions that warranted removing the child from the parent’s
custody.” In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12
(Tenn. Ct. App. June 3, 2003). To assess a parent’s substantial noncompliance with a
permanency plan, the court must weigh “both the degree of noncompliance and the
weight assigned to that particular requirement.” Id. at *12. Conversely, “[t]erms which
are not reasonable and related are irrelevant, and substantial noncompliance with such
terms is irrelevant.” In re Valentine, 79 S.W.3d at 548-49.
Here, the permanency plans required Mother to (1) obtain and maintain stable
housing; (2) complete a parenting assessment and follow recommendations; (3) complete
a mental assessment and follow recommendations; (4) submit to random drug screens; (5)
resolve legal issues; and (6) participate in meetings and the Child’s medical and
educational appointments. At the time of the hearing, Mother had not obtained stable
housing, attended parenting classes as recommended, or completed a psychological
assessment as recommended. She also did not appear for the Child’s assessments or
attend meetings regarding the Child’s care. These requirements were not only reasonable
and related to remedying the conditions that warranted removal, namely unsuitable
housing and questionable decision-making concerning the Child’s care, but completion of
these requirements were essential for establishing that Mother could care for the Child.
Throughout the trial and now on appeal, Mother attempts to place the blame for her
failure to complete these requirements in a timely manner on Ms. Overstreet. The record
reflects that Mother failed to even complete the parenting assessment until February
2016, approximately seven months after the entry of the initial permanency plan, thereby
lessening the time available to complete the recommendations from the assessments.
Further, Mother failed to attend a scheduled psychological assessment even though
transportation was provided by DCS. With these considerations in mind, we conclude
that there was clear and convincing evidence to establish that Mother failed to
substantially comply with the requirements of the permanency plan.
D.
Under Tennessee law, a court may terminate parental rights when:
(3) The child has been removed from the home of the parent or guardian
by order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions
that in all reasonable probability would cause the child to be subjected to
further abuse or neglect and that, therefore, prevent the child’s safe return
to the care of the parent(s) or guardian(s), still persist;
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(B) 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(s) or
guardian(s) in the near future; and
(C) 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.
Tenn. Code Ann. § 36-1-113(g)(3) (emphasis added). Termination of parental rights
requires clear and convincing evidence of all three factors. In re Valentine, 79 S.W.3d at
550. Additionally, the persistence of conditions ground may only be applied “where the
prior court order removing the child from the parent’s home was based on a judicial
finding of dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 874.
On appeal, DCS does not defend the ground of persistence of conditions because
the final order adjudicating the Child as dependent and neglected was filed less than six
months prior to the termination petition. The record confirms that the final order was
entered on February 1, 2016, and that the termination petition was filed on June 3, 2016.
Section 36-1-113(g)(3) does not require reliance upon the final order of adjudication.
However, this court has held that the removal must be by order of the court based upon a
judicial finding of dependency, neglect, or abuse. In re Audrey S., 182 S.W.3d at 874.
While the magistrate found probable cause to believe the Child was dependent and
neglected by order entered on May 27, 2015, the record is devoid of evidence of an order
actually finding the Child as such until entry of the final order on February 1, 2016. See
id. at 875-76 (holding that a finding of probable cause that the child at issue was
dependent, neglected, or abused was insufficient to sustain a court’s termination decision
based upon Section 36-1-113(g)(3)). Accordingly, we hold that the court erred in relying
upon Section 36-1-113(g)(3) in terminating Mother’s parental rights. This conclusion
does not require reversal because only one statutory ground is required to support the
termination of parental rights. Tenn. Code Ann. § 36-1-113(c).
E.
Having concluded that there was clear and convincing evidence supporting at least
one statutory ground to terminate each parent’s parental rights, we must consider whether
termination was in the best interest of the Children. In making this determination, we are
guided by the following non-exhaustive list of factors:
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(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child . . . the court shall consider, but is
not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has 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;8
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or
adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the home,
or whether there is such use of alcohol or controlled substances 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
8
In re Kaliyah S., 455 S.W.3d at 555 (“[I]n a termination proceeding, the extent of DCS’s efforts to
reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable efforts is not a
precondition to termination of the parental rights of the respondent parent.”).
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(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department
pursuant to [section] 36-5-101.
Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).
A number of the best interest factors weigh against Mother. She has not made the
adjustment of circumstances necessary to make it safe and in the Child’s best interest to
return home. Indeed, the record reflects that she still has not obtained and maintained
stable housing for herself and the Child. Tenn. Code Ann. § 36-1-113(i)(1), (2), (7). The
Child resides in a safe and stable home that is willing and able to adopt him. Removing
him would negatively affect his emotional condition. Tenn. Code Ann. § 36-1-113(i)(5).
Questions remain concerning her mental and/or emotional status as evidenced by her
failure to complete a psychological assessment as indicated required. Tenn. Code Ann. §
36-1-113(i)(8).
While we do not wish to discount Mother’s love for the Child, the Child is in need
of permanency and a stable home that Mother has shown she cannot provide now or in
the near future. With all of the above considerations in mind, we conclude that there was
clear and convincing evidence to establish that termination of Mother’s parental rights
was in the best interest of the Child. We affirm the decision of the trial court.
V. CONCLUSION
This judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are taxed to the appellant,
Tasha B.
_________________________________
JOHN W. McCLARTY, JUDGE
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