In Re: Aaron E. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 05, 2014
IN RE AARON E.
Appeal from the Juvenile Court for Maury County
No. 86911 George L. Lovell, Judge
No. M2014-00125-COA-R3-PT - Filed August 4, 2014
Angela E. (“Mother”) appeals the termination of parental rights to her minor child, Aaron E.
The Tennessee Department of Children’s Services (“DCS”) placed the child in protective
custody based upon evidence of physical abuse. The abuse occurred while the child was in
the care of Mother’s boyfriend. The Juvenile Court later made a finding that the child was
dependent and neglected and granted temporary custody to DCS. DCS ultimately filed a
petition to terminate Mother’s and the father’s parental rights. The Juvenile Court terminated
the father’s parental rights at a separate hearing, and the matter proceeded to trial against
Mother only. Following the trial, the Juvenile Court entered an order also terminating
Mother’s parental rights, relying on the grounds of abandonment and persistence of
conditions. We have determined that the record contains clear and convincing evidence to
support terminating Mother’s parental rights on one of the two grounds relied upon by the
Juvenile Court and to support the court’s conclusion that terminating Mother’s parental rights
is in the child’s best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
W. N EAL M CB RAYER, J., delivered the opinion of the Court, in which F RANK G. C LEMENT,
J R., P.J., M.S., and A NDY D. B ENNETT, J., joined.
Seth M. Lasater, Columbia, Tennessee, for the appellant, Angela E.
Robert E. Cooper, Jr., Attorney General and Reporter, Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
OPINION
I. F ACTUAL AND P ROCEDURAL B ACKGROUND
Late on the night of October 8, 2010, Mother returned to her apartment after work to
find her ten-month-old son, Aaron E., unable to move his leg. Aaron and an older half-
sibling had been in the care of Mother’s boyfriend, who also lived in the apartment.
Following a trip to the hospital, Aaron was diagnosed with a broken leg. He also had broken
blood vessels in his eye and bruises to his ear and jaw. The care team at the hospital found
the child’s injuries inconsistent with the boyfriend’s explanation of events and reported the
matter to DCS as a case of physical abuse. On October 12, 2010, DCS filed a Petition for
Temporary Legal Custody of Aaron and his half-sibling.1 On December 7, 2010, the Juvenile
Court for Maury County found Aaron to be dependent and neglected and granted DCS
temporary custody of the child. The Juvenile Court’s order also ratified a permanency plan
and directed the parents to follow the plan.
A. The Permanency Plan
The permanency plan was a product of a meeting between Mother and the father, on
the one hand, and Teresa Taylor, a family service worker, on the other. The stated goal of
the permanency plan was returning the child to Mother. As conditions contributing to the
placement of the child in state custody, the plan listed Mother’s reaction to her child’s
injuries2 and concern over her ability to select proper caretakers. The plan also identified
Mother’s inability to recognize the warning signs of possible abuse and the lack of a support
system as conditions that prevented the child from leaving state custody.
In terms of needs and concerns related to the safety, well-being, and permanence, the
plan identified several actions steps and desired outcomes relative to Mother. On the issue
of supervision, the goal was for Mother to have daycare and appropriate caretakers she could
trust with her child. For the future well-being of her child, the goal was for Aaron’s medical
and nutritional needs to be met. On the issue of permanence, the goal was for Mother to have
a plan for transportation, as she did not have a means of transportation at the time.
1
This appeal only pertains to Mother’s parental rights to Aaron, so further information regarding his
half-sibling is omitted.
2
According to the petition for temporary legal custody, Mother, despite evidence to the contrary,
expressed disbelief that her boyfriend would hurt Aaron, and Mother did not express any anger or resentment
toward her boyfriend.
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B. The Trial Home Placement
Although the target date in the permanency plan for returning the child to Mother was
February 3, 2011, at some later date not specified in the record, DCS petitioned for a trial
home placement for Aaron. Since the removal of the child, Mother had been steadily
employed, had gotten a car, and her residential situation appeared stable. On June 20, 2011,
over eight months after the child was placed into DCS’s custody, the Juvenile Court
approved the trial home placement, relieving DCS of temporary custody of Aaron and
granting custody to Mother effective as of June 27, 2011. Although the order granting the
trial home placement does not specify, later pleadings indicate that the trial period was to last
ninety days.
The trial home placement did not go well. Mother fell behind in paying her rent, and
her ability to pay for childcare was a concern. The child’s Guardian ad Litem, with the
support of DCS, petitioned for a sixty-day extension of the trial home visit in the hope that
Mother’s financial situation would stabilize during the extended trial period. The Juvenile
Court granted the extension, but then on November 10, 2011, DCS petitioned to revoke the
trial home placement because Mother had lost her job. DCS also alleged that it had
“attempted to aid [Mother] with regard to housing, child care, and budgeting, but the mother
has not made the necessary efforts.” The Juvenile Court revoked the trial home placement
pending a hearing scheduled for November 21, 2011. Mother ultimately waived the hearing,
and Aaron continued in the physical custody of DCS.
Despite Mother losing her job and her difficulties in budgeting, DCS petitioned for
child support from Mother. The Juvenile Court set support at $285 per month to commence
on January 1, 2012. The child support worksheet dated December 19, 2011, which was
attached to the Order Setting Support, indicated Mother’s monthly gross income to be
$1,256.66. The record does not reveal the source of Mother’s income. Although the
permanency plan had provided that the father would pay support to Mother of $230 per
month, the monthly support payments would not account for the incongruity of an
unemployed mother with monthly gross income of $1,256.66.
From January 1, 2012, to July 1, 2012, Mother failed to make any child support
payments. On June 27, 2012, DCS filed a Petition to Terminate Parental Rights against both
Mother and the father. By this point, the father’s whereabouts were unknown, and the
Juvenile Court terminated the father’s parental rights at a separate hearing. The matter
proceeded to trial without a jury on the grounds of Mother’s abandonment by failure to
support and persistence of conditions. DCS also alleged that termination of Mother’s
parental rights was in the child’s best interests.
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C. The Termination Proceeding
The Juvenile Court conducted a one-day trial on November 15, 2013. In support of
its petition, DCS presented four witnesses, including Ms. Taylor, who was the family
services worker for Aaron from the date he entered DCS’s custody until March 31, 2012.
Ms. Taylor was the only witness who had any involvement in the case prior to the filing of
the petition for termination. In opposition to the petition, Mother offered her own testimony.
Following closing arguments, the trial court ruled from the bench in favor of DCS.
On December 31, 2013, the trial court entered an order terminating Mother’s parental
rights. As grounds for termination, the Juvenile Court found that (1) Mother had “willfully
failed to support or make reasonable payments toward the support of the child for four (4)
consecutive months immediately preceding the filing of [the] petition” and “[Mother] was
willfully unemployed from November 2011 until sometime in late April/early May 2012” and
that (2) Mother “ha[d] not remedied the conditions that [led] to the removal, or other
conditions persist pursuant to Tenn. Code Ann. § 36-1-113(g)(3).” The Juvenile Court also
found termination of parental rights to be in the child’s best interest.
II. S TANDARDS FOR R EVIEWING P ARENTAL T ERMINATION O RDERS
Termination of parental rights is one of the most serious decisions courts make. As
noted by the United States Supreme Court, “[f]ew consequences of judicial action are so
grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S. 745, 787
(1982). Terminating parental rights has the legal effect of reducing the parent to the role of
a complete stranger and of “severing forever all legal rights and obligations of the parent or
guardian.” Tenn. Code Ann. § 36-1-113(l)(1) (Supp. 2013).
A parent has a fundamental right, based in both the federal and State constitutions,
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, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of a Female Child, 896 S.W.2d 546, 547-
48 (Tenn. 1995). While this right is fundamental, it is not absolute. The State may interfere
with parental rights through judicial action in some limited circumstances. Santosky, 455
U.S. at 747; 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
the grounds upon which termination proceedings may be brought. Tenn. Code Ann. § 36-1-
113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn
v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and parental rights may be terminated only
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where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct.
App. 1998).
To terminate parental rights, a court must determine by clear and convincing evidence
that at least one of the statutory grounds for termination exists and that termination is in the
best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002). This heightened burden of proof is one of the safeguards required by the
fundamental rights involved, see Santosky, 455 U.S. at 769, and its purpose “is to minimize
the possibility of erroneous decisions that result in an unwarranted termination of or
interference with these rights.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); see
also In re Angela E., 303 S.W.3d at 250; In re M.W.A., 980 S.W.2d at 622. “Clear and
convincing evidence enables the fact-finder to form a firm belief or conviction regarding the
truth of the facts, and eliminates any serious or substantial doubt about the correctness of
these factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted). Unlike the
preponderance of the evidence standard, “[e]vidence satisfying the clear and convincing
evidence standard establishes that the truth of the facts asserted is highly probable.” In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). The party seeking termination has
the burden of proof. Id.
Appellate courts first review the trial court’s findings of fact in termination
proceedings de novo on the record and accord these findings a presumption of correctness
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Bernard T., 319
S.W.3d at 596; In re Angela E., 303 S.W.3d at 246. Next, “[i]n light of the heightened
burden of proof in [termination] proceedings . . . the reviewing court must then make its own
determination regarding whether the facts, either as found by the trial court or as supported
by a preponderance of the evidence, provide clear and convincing evidence that supports all
the elements of the termination claim.” In re Bernard T., 319 S.W.3d at 596-97.
Mother’s issues on appeal are whether the trial court erred in its findings that: (1)
termination of Mother’s parental rights was warranted under the grounds set forth in
Tennessee Code Annotated section 36-1-113; and (2) termination of Mother’s parental rights
was in the child’s best interest.
III. G ROUNDS FOR T ERMINATING M OTHER’S P ARENTAL R IGHTS
A. Abandonment
Mother argues that the Juvenile Court erred in its finding that she had abandoned
Aaron pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i) through a willful
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failure to support him for the four months preceding the filing of the petition for termination
of parental rights. Her initial argument is that DCS failed to prove that no support payments
were made by Mother during the applicable time period. She next argues that, even if DCS
proved a failure to pay, any failure was not willful within the meaning of the statute.
Whether a parent failed to visit or pay child support is a question of fact. In re Adoption of
Angela E., 402 S.W.3d 636, 640 (Tenn. 2013). Whether such failure to visit or pay is willful
is a question of law. Id.
1. Evidence of Non-payment of Child Support
At the trial, DCS introduced two documents titled “TN GOV-Department of Human
Services, Child Support Enforcement Services, Non-Custodial Parent Payment Summary
Printable Version.” The first is a record of payments from January 1, 2012, to July 1, 2012,
showing $0.00 in payments from Mother. The second document covers the period from
August 1, 1995, to November 2, 2013. This document also reflects that no payments were
made from January 1, 2012, to July 1, 2012. The first payment reflected was made on July
17, 2012, in the amount of $60.00. From that point through November 2, 2013, payments
totaling $4,132 were received. The Juvenile Court admitted both documents into evidence
under Tennessee Code Annotated section 24-7-121(a), which provides as follows:
(a)(1)(A) The department of human services child support payment records
shall be the official records for all payments which have been appropriately
sent to the central collection and distribution unit pursuant to § 36-5-116.
(B) Notwithstanding any other law or rule of evidence to the contrary,
a computer printout or copy, by telecopier facsimile or otherwise, an electronic
mail copy or copy obtained by way of Internet access, of the child support
payment screen which is generated from the Tennessee child support
enforcement system (TCSES) operated by the department or its contractors,
shall be admitted into evidence as a non-hearsay, self-authenticating document
in all judicial and administrative proceedings without the need for certification
by a records custodian.
(2) No conclusive presumption of correctness shall attach to such record
following admission, but the record shall constitute prima facie evidence of its
correctness and shall be subject to rebuttal by alternative or conflicting
documentary evidence of payment of the support obligation.
Tenn. Code Ann. § 24-7-121(a) (2000).
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At trial, Mother objected to the introduction of the documents on the basis that they
constituted hearsay. On appeal, she argues that, because a parental termination action has
a “higher clear and convincing evidence standard,” this Court should “pay close heed to the
limiting language . . . that no conclusive presumption of correctness attaches” to the
documents. This argument is without merit. As provided by the statute, the documents
introduced are self-authenticating and, for that reason, are considered non-hearsay. Tenn.
Code Ann. § 24-7-121(a)(1)(B). Consequently, the Juvenile Court properly overruled the
hearsay objection.
Once admitted, the documents “constitute[d] prima facie evidence” of Mother’s
failure to pay support. Tenn. Code Ann. § 24-7-121(a)(2). The burden then fell on Mother
to rebut the evidence “by alternative or conflicting documentary evidence of payment of the
support obligation.” Id. Mother presented no evidence of payment of support for the time
period in question. Therefore, the trial court properly found that Mother had failed to pay
support during the four-month period proceeding the filing of the petition to terminate
parental rights.
2. Willfulness of Non-payment of Child Support
Failure to pay support does not lead to termination of parental rights unless the failure
is found to be willful. The willfulness requirement is constitutional as well as statutory. See
In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999). In In re Audrey S.,we addressed in some
detail the meaning of the term “willfulness”:
In the statutes governing the termination of parental rights,
“willfulness” does not require the same standard of culpability as is required
by the penal code. Nor does it require malevolence or ill will. Willful conduct
consists of acts or failures to act that are intentional or voluntary rather than
accidental or inadvertent. Conduct is “willful” if it is the product of free will
rather than coercion. Thus, a person acts “willfully” if he or she is a free
agent, knows what he or she is doing, and intends to do what he or she is
doing.
Failure to visit or support a child is “willful” when a person is aware of
his or her duty to visit or support, has the capacity to do so, makes no attempt
to do so, and has no justifiable excuse for not doing so . . . .
The willfulness of particular conduct depends upon the actor’s intent.
Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
peer into a person’s mind to assess intentions or motivations. Accordingly,
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triers-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct.
182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations omitted). As noted, the
financial ability, or capacity, of the parent to pay support must be considered in determining
willfulness. If a parent’s failure to pay is due to financial inability, the parent is not willfully
failing to support. See Pierce v. Bechtold, 448 S.W.2d 425, 429 (Tenn. Ct. App. 1969).
In this case, the capacity of Mother to pay child support during the entire four-month
period preceding the petition to terminate parental rights, which ran from February 27, 2012,
through June 27, 2012, is in question. The trial court found that Mother was unemployed
from November of 2011 until “late April/early May of 2012.” We have found a failure to
pay support during a period of unemployment was willful. For instance, when a parent is
able to work but not “actively pursuing steady work or any other source of legal income”
during the period of unemployment, the failure to pay support can be willful. See e.g. In re
Jacob A.G., No. E2012-01213-COA-R3-PT, 2013 WL 357573, at *5-6 (Tenn. Ct. App. Jan.
30, 2013) (finding willfulness where parent had not worked while her children were in state
custody and the only evidence that parent sought employment was “her testimony that she
submitted applications at ‘all the different places around town.’”)
Although the record contains either scant or no evidence regarding important factors
that bear upon capacity, such as Mother’s employability, earning history, assets, or disposable
income, the record amply shows Mother’s willingness to work. The permanency plan listed
Mother’s employment as a “strength indicator,” and she did have steady employment for a
significant period while Aaron was in the custody of DCS. According to Ms. Taylor, one of
the reasons DCS petitioned for a trial home placement was that Mother had “maintained her
job for almost a year.”
Once Mother lost her job, the testimony concerning Mother’s efforts to find work was
contradictory. Ms. Taylor testified that Mother did not avail herself of Ms. Taylor’s
assistance in finding a job and that Mother was concentrating on finding housing rather than
seeking employment. The foster mother testified that she alerted Mother to “six to seven”
jobs advertised in the local newspaper but Mother never followed up with the jobs. Mother
testified that she did apply for jobs and had even secured a job that she was unable to accept
due the distance from her home.
Rather than credit Ms. Taylor or the foster mother’s testimony over that of the Mother,
the trial court found wilfulness based solely upon Mother’s job status at a Shell gas station
(“Shell”) where she worked as a clerk. The Juvenile Court found in pertinent part as follows:
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According to the proof, the Court further finds that [Mother] was
willfully unemployed from November 2011 until sometime in late April/early
May 2012. [Mother] had been gainfully employed at Shell for a significant
period of time. Based on the testimony, [Mother] was sent home from work
by her supervisor at Shell in November 2011 and she either stopped showing
up thereafter because she thought she had been terminated or was terminated.
According to her account of the incident, FSW Taylor counseled [Mother] that
she may have mistakenly concluded that she had been terminated and
encouraged her to contact her supervisor immediately regarding the status of
her employment. FSW Taylor testified that [Mother] failed to heed her advice
and did not speak with her supervisor.
[Mother’s] account of this incident varies slightly from that of FSW
Taylor and is contradictory. [Mother] first testified that she did heed FSW
Taylor’s advice and that she made several attempts to call her supervisor, but
that her calls were not returned. [Mother] later testified that she was so
disillusioned with her supervisor that there was no way she would have even
considered returning to her employment at Shell while that individual
remained in his or her position.
....
Based on the evidence, the Court finds it is unlikely that [Mother] made
any attempts to contact her supervisor at Shell after being sent home in
November of 2011. By her own admission, the only reason [Mother] decided
to go back to work at Shell was because she found out that the supervisor had
left. As such, it is clear to the Court that [Mother] was not interested in
retaining or preserving her employment at Shell after the November 2011
incident because she did not want to work with her supervisor.
[Mother]’s return to work at Shell in late April/early May of 2012
indicates to the Court that the only one preventing [Mother]’s return to gainful
employment at Shell in the months after the November 2011 incident was
[Mother]. As such, the Court finds that [Mother] was willfully unemployed
from the time she left her employment at Shell in November of 2011 until her
return to her employment at Shell sometime in late April/early May of 2012.
[Mother] was employed for at least one month during the four months at issue
for this TPR and did not pay any child support during that period.
Willful unemployment can equate to a willful failure to support. See In re Austin D.,
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No. E2012-00579-COA-R3-PT, 2013 WL 357605, at *11-12 (Tenn. Ct. App. Jan. 30, 2013)
(mother’s personal choice not to work contributed to the conclusion that she willfully failed
to pay child support).
For her part, Mother disputed that she voluntarily left her job, testifying that she was
fired from Shell. DCS did not offer contrary proof, rather Ms. Taylor offered an opinion that
Mother may have incorrectly assumed she was fired or that Mother could have regained her
job by calling her boss. The trial court reasoned that Mother must have been able to return
to work at any time after her firing or departure from Shell based on Ms. Taylor’s opinion;
Mother’s admitted conflict with her supervisor at Shell; doubts that Mother attempted to call
her employer about her job status; and the fact that Mother ultimately returned to work for
Shell several months later. However, this finding could only be based on speculation as no
one from Shell was called to testify, and Ms. Taylor testified that she had not contacted
anyone at Shell. Speculation is not clear and convincing evidence. See In re C.M.C., No.
E2005-00328-COA-R3-PT, 2005 WL 1827855, at *12 (Tenn. Ct. App. Aug. 3, 2005).
Therefore, we are left only with Mother’s testimony that she was fired.
In light of the foregoing, we cannot say that clear and convincing evidence establishes
that Mother willfully failed to fulfill her child support obligation during all four months
immediately preceding the June 27, 2012 petition to terminate parental rights. DCS failed
to carry its burden of proof on this ground for termination.
B. Persistence of Conditions
Mother also argues that the Juvenile Court erred in its reliance upon Tennessee Code
Annotated section 36-1-113(g)(3) as a ground for termination of Mother’s parental rights.
Because Aaron was originally placed in state custody due to physical abuse perpetrated by
her former boyfriend and that relationship ended with the boyfriend’s imprisonment, Mother
submits that she remedied the conditions that led to the child’s removal. Mother claims that
other conditions identified by DCS, beyond those that led to the child’s removal, were
properly addressed and did not persist as of the filing of the petition for termination of
parental rights.
Under Tennessee Code Annotated section 36-1-113(g)(3), parental rights may be
terminated where:
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
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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;
(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). This ground for termination of parental rights is
commonly referred to as “persistence of conditions.” In re Audrey S., 182 S.W.3d at 871.
The goal of the persistence of conditions ground is to avoid having a child in foster
care for a time longer than reasonable for the parent to demonstrate his or her 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). Persistence of conditions focuses “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 at 874. The question before the court is “the likelihood that the child can be
safely returned to the custody of the mother, 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).
Each of the statutory elements that make up the ground known as persistence of
conditions must be established by clear and convincing evidence. In re Valentine, 79 S.W.3d
539, 550 (Tenn. 2002). Mother’s appeal implicates the second and third elements, whether
“[t]he 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 . . . still persist”
and whether “[t]here 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.” Tenn. Code Ann.
§ 36-1-113(g)(3)(A), (B). We address each in turn.
1. Conditions that Led to Removal or that Could Lead to Further Abuse or Neglect
In the petition for termination of parental rights, DCS alleged the existence of the
following conditions for the purposes of Tennessee Code Annotated section 36-1-
113(g)(3)(A):
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The Department removed the child from his home because of [Mother’s]
inability to determine appropriate caregivers for her child, resulting in the
child’s broken leg. The conditions that led to removal still persist.
Other conditions exist in the home that, in all reasonable probability,
would subject the child to further abuse and neglect and which, therefore,
prevent the child’s return to the care of [Mother]. [Mother] does not have
suitable housing for the child or employment sufficient to provide for the
child’s needs. [Mother] has been willfully unemployed since November 2011.
Further, [Mother] does not have a stable residence. The child was placed on
a Trial Home Visit with [Mother] from June to November 2011. The Trial
Home Visit was revoked because [Mother] was not providing proper care for
the child. [Mother] had lost her job, was behind on rent and facing eviction.
[Mother] was not providing proper medical care for the child. [Mother] did
not have the ability to make arrangement for the child, such as pick up from
daycare, without the assistance of DCS.
The trial court found that Mother’s issues with “employment, housing, transportation and the
provision for the child’s basic necessities” were conditions that, in all reasonable probability,
would cause the child to be subjected to further abuse or neglect.
After reviewing the record, we conclude that the evidence does not preponderate
against the trial court’s findings. During the trial home placement and at the time the petition
for termination was filed, Mother was attempting to support both herself and her child based
on a minimum wage job. She acknowledged that, during that period of time and afterward,
she needed better housing. Her later changes of residence were motivated by an admirable,
but ultimately vain, attempt to find someone to help defray housing costs. Although she had
acquired a vehicle since the ratification of the permanency plan, the vehicle was apparently
unreliable. Mother often relied on Ms. Taylor or Aaron’s foster parents for transportation.
Due to her work schedule and lack of transportation, she had to rely on others to pick up
Aaron or watch Aaron when he was sick and could not stay in daycare. Mother’s responses
to her financial situation, seeking someone to defray housing costs and needing assistance
with childcare, contributed, at least in part, to Mother’s decision to place Aaron in the care
of an individual who caused serious injury to her child.
2. Likelihood of Remediation of Conditions to Permit Return to Parent
Having found the presence of persistent conditions with a reasonable probability of
causing the child to be subjected to further abuse or neglect, the trial court is required to
consider the likelihood that the conditions will be remedied such that the child can be safely
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returned to the parent in the near future. Tenn. Code Ann. § 36-1-113(g)(3)(B). The
likelihood of any condition being remedied is generally dependent on the efforts of both the
parent or guardian and DCS, which is statutorily required to use “reasonable efforts” to
“[m]ake it possible for the child to return home.” Tenn. Code Ann. § 37-1-166(a)(2); see In
re Giorgianna H., 205 S.W.3d 508, 518-19 (Tenn. Ct. App. 2006).
Mother does not challenge the reasonableness of DCS’s efforts to reunify her with
Aaron, but based upon the record, Mother did not always avail herself of all of the assistance
and support being offered by or through DCS. For instance, early in the process Mother
declined to accept mental health treatment, despite an apparent need. Later, after the petition
for termination was filed, Mother had the opportunity to attend mental health sessions, but
the sessions did not proceed after she missed the first two appointments.
Irrespective of her efforts, Mother contends that all of the persistent conditions were
ultimately remedied, but even if accurate, the remedies did not come at “an early date,”
which basically precluded return of Aaron to his Mother “in the near future.” Tenn. Code
Ann. § 36-1-113(g)(3)(B). Most of the conditions found by the trial court had existed since
at least November of 2011,3 when Mother was fired from her position with Shell, and these
issues remained several months after the filing of the petition for termination. Mother also
concedes that she would require further assistance, assistance that she may not be able to
accept because of her long hours at work.
We conclude that the trial court did not err in terminating Mother’s parental rights
based upon the ground of persistence of conditions.
III. B EST I NTERESTS OF A ARON E.
Mother’s final argument is that the evidence did not clearly and convincingly
demonstrate that it was in Aaron’s best interest for Mother’s parental rights to be terminated.
Termination of parental rights must be based upon the existence of at least one statutory
ground and proof that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-
113(c). The focus of the best interest analysis is on what is best for the child, not what is best
3
In finding persistent conditions, the trial court erroneously noted that the issues of “employment,
housing, transportation and the provision for the child’s basic necessities existed at [the] time [Aaron was
placed in DCS custody,] were identified as barriers to reunification and were addressed within the initial
permanency plan.” However, the evidence preponderates against such a broad statement. The permanency
plan makes no reference to Mother’s employment and housing situation. If employment or housing had been
barriers to reunification at the time of the child’s initial removal, Ms. Taylor could not have testified as she
did that Mother’s employment “for almost a year” and maintenance of “the same residence” influenced
DCS’s decision to petition for a trial home placement sometime prior to June 20, 2011.
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for the parent. In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005); White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004). Courts consider the following statutory factors in
making a best interest analysis:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such duration
of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
(4) Whether a meaningful relationship has otherwise been established between
the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or
guardian, has shown brutality, physical, sexual, emotional or psychological
abuse, or neglect toward the child, or another child or adult in the family or
household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care for
the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to
§ 36-5-101.
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Tenn. Code Ann. § 36-1-113(i). Not every factor enumerated in the statute applies to every
case because the facts of each case can vary widely. In re William T.H., No. M2013-00448-
COA-R3-PT, 2014 WL 644730, at *4 (Tenn. Ct. App. Feb. 18, 2014).
The trial court based its decision on factors (1), (2), and (5) of Tennessee Code
Annotated section 36-1-113(i). With respect to Aaron’s best interest, the Juvenile Court
concluded as follows:
The Court finds that it is in the best interest of the child to terminate the
parental rights of [Mother] because she has not made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s best
interest to be in her home. [Mother]’s continued and persistent problems with
maintaining steady employment, housing, transportation and care for the child,
despite the significant efforts of DCS to assist her with the same, placed the
child at significant risk of abuse, neglect or harm while in her care.
The Court also finds that it is in the best interest of the child to
terminate the parental rights of [Mother] because a change of caretakers and
physical environment resulting from a return to [Mother] is likely to have a
detrimental/negative effect on the child’s emotional, psychological and
medical condition.
Although the evidence preponderates against the factual finding that Mother’s
employment was not “steady,” the other findings of the trial court are properly supported.
Mother was compelled to leave her apartment during the trial home visit due to falling behind
in rent payment. In an effort to stabilize her finances, she lived in a few different residences,
some of which were unsuited to raising a child. At one point, Mother even refused to allow
DCS to visit her residence or to tell DCS where her residence was located. Mother’s vehicle
proved to be unreliable, and she frequently had to rely on others for transportation when her
destination was outside of walking distance. Because she was a single parent and compelled
to work, Mother was reliant on daycare. DCS paid for daycare during the trial home
placement or watched the child when he could not stay in daycare. Mother’s finances
prevented her from arranging for daycare without assistance.
In regards to the effect a change of caretakers and physical environment would have
on the child’s emotional, psychological and medical condition, DCS presented the testimony
of a licensed clinical social worker. The social worker completed an extensive evaluation
of the relationship between Aaron and Mother and Aaron and the foster mother. When asked
her opinion on the effect of a change, she testified as follows:
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The risks if Aaron leaves the home of the [foster parents] right now
would be as follows: He would experience significant grief and loss regarding
the lack of contact with not only [foster mother] and [foster father] and the
other children in that home. As of right now he -- as of my last contact with
him in June he certainly related to them as his family, as his mother, his father.
So we could substantiate that he would have significant grief and loss
regarding the lack of relationship.
Also another risk would be the lack of stability if reunited with his
[M]other. As of my last contact her housing and employment and
transportation and ability to come to various meetings that Aaron needed was
definitely compromised. She was -- you know, had commented that of those
things were in need.
Also a risk if he is removed from the [foster] family would be that he
would be left with this anxious-ambivalent attachment style 4 that in terms of
the way that he relates to his [M]other, that style causes difficulty in not only
that relationship but in future relationships.
(footnote added). The social worker also noted the potential for developmental regression.
For these reasons, we conclude that there is clear and convincing evidence that it is
in the child’s best interest to terminate Mother’s parental rights.
IV. C ONCLUSION
The Juvenile Court’s judgment terminating Mother’s parental rights to Aaron E. is
affirmed. Costs of this appeal shall be taxed to the appellant, Angela E., for which execution
may issue, if necessary.
_________________________________
W. NEAL McBRAYER, JUDGE
4
The social worker described the attachment between Aaron and Mother as “anxious-ambivalent”
where as the attachment between the child and the foster mother was described as “secure.” The social
worker described the “anxious-ambivalent” attachment as problematic because the child is unsure, unclear,
and unsteady.
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