In Re: Carrington H.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 5, 2014

IN RE CARRINGTON H., ET AL.

Appeal from the Juvenile Court for Maury County

No. 90576, 90577 George L. Lovell, Judge

No. M2014-00453-COA-R3-PT - Filed October 21, 2014

This appeal arises from the termination of Mother’s parental rights. After a five-year cycle

of removal and failed reunification attempts, the juvenile court awarded temporary custody

of the child to the State in 2009, and shortly thereafter, ordered that Mother have no visitation

or contact with her child. The court later ratified a permanency plan, but nearly two years

later, the Tennessee Department of Children’s Services petitioned to terminate Mother’s

parental rights. Following a trial, the juvenile court entered an order terminating Mother’s

parental rights on the grounds of: (1) substantial noncompliance with the permanency plan;

(2) persistence of the conditions that led to the child’s removal; and (3) incompetency to

adequately provide for the further care and supervision of the child. Mother appeals two of

the three grounds for termination and the court’s determination that termination was in the

best interest of the child. We affirm.

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.

Mark A. Free, Columbia, Tennessee, for the appellant, Vanessa G.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Byrd Ferrara, Assistant

Attorney General, for the appellee, Tennessee Department of Children’s Services.

OPINION

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

This case concerns the termination of the parental rights of Vanessa G. (“Mother”)

to her child, Carrington H.1 By the time this matter came on for trial, Carrington’s family had

been receiving services from the Tennessee Department of Children’s Services (“DCS”) for

over ten years. Shortly before Carrington’s birth in 2004, the juvenile court found his five

siblings to be dependent and neglected. Despite a finding that, at the time of removal, the

home “was in such a condition as to make it unsafe and unsanitary for the children to reside

there,” the children were allowed to remain in the home with Mother and their father,

Christopher H. (“Father”).

Soon after his birth, DCS placed Carrington and his siblings in protective custody.

On January 6, 2006, the juvenile court found probable cause to determine that the children

were dependent and neglected. The juvenile court granted physical custody to the children’s

maternal aunt and maternal grandmother. Mother was granted supervised visitation with the

four oldest children every weekend and with Carrington and another sibling every other

weekend. The court later returned the children to Father’s custody and suspended Mother’s

visitation for a period of time.

On July 13, 2007, DCS filed a petition to adjudicate dependency and neglect based

on allegations of sexual abuse perpetrated by Mother. The juvenile court suspended all

visitation between Mother and children on August 8, 2007. Mother waived the adjudicatory

hearing, and the court ordered that the children would remain in the custody of Father, who

by this time was divorced from Mother.

At some later date, not specified in the record, Mother regained her visitation

privileges. However, following a review that took place in November 2009, the juvenile

court ordered that Mother have no contact or visitation with her children until such time as

they “on their own volition, request such visitation.”

Carrington and the other children were removed from Father’s custody on December

18, 2009, following allegations of child abuse by Father. Three days later, DCS filed yet

another petition to adjudicate the children dependent and neglected. On September 8, 2011,

Father pleaded guilty to child abuse. Ultimately, the children were found to be dependent

1

The petition for termination of Mother’s parental rights originally concerned both Carrington H.

and a sibling, Charles H. However, Charles H. has reached the age of majority and is no longer a subject of

this proceeding.

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and neglected and ordered to remain in DCS custody. The court ratified the last permanency

plan for Carrington’s family on December 1, 2011.

On October 24, 2013, DCS filed a petition to terminate Mother’s and Father’s parental

2

rights. The Maury County Juvenile Court conducted a one-day trial on December 20, 2013.

In support of its petition, DCS presented four witnesses: (1) a counselor service worker for

the Department of Human Services; (2) Ms. Elysse Beasley, Mother’s psychotherapist;

(3) Mother’s therapist at Centerstone; and (4) Mr. Richard Walker, Carrington’s clinical

social worker. Mother did not put on any proof.

On February 27, 2014, the juvenile court entered an order terminating Mother’s

parental rights to Carrington. As grounds for termination, the juvenile court found that

Mother: (1) failed to substantially comply with the reasonable requirements in the

permanency plan; (2) failed to remedy the conditions that led to the child’s removal or other

conditions that, in all reasonable probability, would subject the child to further abuse and

neglect; and (3) was incompetent to adequately provide for the further care and supervision

of the child because of her impaired mental condition. The juvenile court also found

termination of Mother’s parental rights to be in the child’s best interest.

Mother raises two issues on appeal. First, Mother argues that the trial court erred in

finding that she failed to substantially comply with the permanency plan and that the

conditions that led to the child’s removal persist. Second, Mother argues that the trial court

erred when it determined that termination of Mother’s parental rights was in the child’s best

interest.

II. A NALYSIS

A. Standard of Review

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).

2

Based upon his stated intention to surrender his parental rights to Carrington upon the final

termination of Mother’s rights, DCS voluntarily dismissed the petition against Father.

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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 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

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

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the elements of the termination claim.” In re Bernard T., 319 S.W.3d at 596-97. Appellate

courts review the trial court’s conclusions of law de novo without any presumption of

correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007) (citing Campbell v.

Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857,

859 (Tenn. 1993)).

B. Statutory Grounds for Terminating Mother’s Parental Rights

The juvenile court relied on three statutory grounds for terminating Mother’s parental

rights to Carrington: (1) substantial noncompliance with the permanency plan; (2) persistent

conditions; and (3) incompetency to adequately care for the child. Mother appeals the trial

court’s decision on only two of the three statutory grounds, leaving the court’s finding of

incompetency unchallenged.

DCS argues that, because Mother did not appeal the incompetency ground, the trial

court’s finding on that ground is final, and we need not examine the other two grounds. In

support of this proposition, DCS cites In re Alexis L., No. M2013-01814-COA-R3-PT, 2014

WL 1778261 (Tenn. Ct. App. Apr. 30, 2014). In that case, the trial court found five statutory

grounds to terminate the mother’s parental rights, but she appealed only four of the grounds.

Id. at *2. We concluded that the mother’s failure to appeal a ground for termination waived

that issue, and as a result, the trial court’s finding regarding that ground was final. Id.

Because only one statutory ground need be found for termination, we declined to examine

the other grounds and moved directly to an analysis of whether termination was in the child’s

best interests. Id. at *1.

Generally, courts address only the issues raised by the parties. Hodge v. Craig, 382

S.W.3d 325, 334 (Tenn. 2012); Tenn. R. App. P. 13(b). Party control over issue presentation

is considered a defining characteristic of the American adversarial system. See U.S. v. Burke,

504 U.S. 229, 246 (1992) (Scalia, J., dissenting). However, courts may sometimes engage

in a sua sponte review of issues not raised by the parties on appeal. See, e.g., Singleton v.

Wulff, 428 U.S. 106, 121 (1976); Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of

Conn., 84 A.3d 840, 855-69 (Conn. 2014); Bell v. Todd, 206 S.W.3d 86, 90-91 (Tenn. Ct.

App. 2005); Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct. App.

2000). For example, our courts have considered justiciability issues even when parties have

not presented such issues for review. See, e.g., Scales v. Winston, 760 S.W.2d 952, 953

(Tenn. Ct. App. 1988) (jurisdiction); Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)

(standing); Hooker v. Haslam, 437 S.W.3d 409, 433 (Tenn. 2014) (mootness). In addition

to justiciability questions, Tennessee Rule of Appellate Procedure 13(b) recognizes that

appellate courts may review issues not raised by the parties in certain circumstances:

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Review generally will extend only to those issues presented for review. The

appellate court shall also consider whether the trial and appellate court have

jurisdiction over the subject matter, whether or not presented for review, and

may in its discretion consider other issues in order, among other reasons: (1) to

prevent needless litigation; (2) to prevent injury to the interests of the public;

and (3) to prevent prejudice to the judicial process.

Tenn. R. App. P. 13(b). Despite possessing the discretion to review an issue not raised by

the parties on appeal, “this discretion [should] be sparingly exercised.” Tenn. R. App. P.

13(b) cmt.

Yet, in the context of parental termination cases, on occasion we have reviewed all

the grounds relied upon by the trial court to terminate parental rights, even if the parent did

not appeal every ground. See, e.g., In re Anya G., No. E2013-02595-COA-R3-PT, 2014 WL

4233244 (Tenn. Ct. App. Aug. 27, 2014) (reviewing the ground of abandonment, although

the mother did not appeal that ground); In re Justin K, No. M2012-01779-COA-R3-PT, 2013

WL 1282009 (Tenn. Ct. App. Mar. 27, 2013) (examining whether termination was in the

children’s best interests due to the “gravity of the determination,” even though the parent did

not brief the issue); In re L.M.W., 275 S.W.3d 843 (Tenn. Ct. App. 2008) (discussing two

grounds for termination despite Father’s concession in his brief that the grounds were

established); cf. In re L.L.F., No. M2007-01656-COA-R3-PT, 2008 WL 555700 (Tenn. Ct.

App. Feb. 29, 2008) (reviewing the statutory ground the mother appealed, but acknowledging

that the mother did not appeal all grounds for termination). We are also mindful of our

Supreme Court’s instruction that we should review every ground relied upon by the trial

court to terminate parental rights in order to prevent “unnecessary remands of cases.” In re

Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010).

However, our supreme court’s direction in In re Angela E., 303 S.W.3d 240 (Tenn.

2010), does not mandate review of every ground for termination of parental rights relied

upon by the trial court irrespective of whether an appeal is taken from every ground. See,

e.g., In re Kyla P., No. M2013-02205-COA-R3-PT, 2014 WL 4217412, at *3 (Tenn. Ct.

App. Aug. 26, 2014) (addressing only whether termination was in the child’s best interests

where the father did not appeal any statutory grounds); In re A.T.S., No. M2004-01904-COA-

R3-PT, 2005 WL 229905, at *3 (Tenn. Ct. App. Jan. 28, 2005) (examining only whether

termination was in the child’s best interests where the mother did not appeal the statutory

ground). The danger of “unnecessary remand” from the Supreme Court is largely eliminated 3

where the issue cannot be raised by the parties in any future appeal. See State v. West, 19

3

The danger of unnecessary remand cannot be completely eliminated because the Supreme Court

possesses the same discretion to consider issues not raised on appeal. Tenn. R. App. P. 1, 13(b).

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S.W.3d 753, 756-57 (Tenn. 2000) (declining to examine a claim because it was not raised on

direct appeal). In this situation, the trial court’s determination that one statutory ground for

termination is satisfied is final. Therefore, review of the alternative grounds becomes

unnecessary because the outcome of such a review would not change the presence of at least

one ground for terminating parental rights. Declining to undertake such a review honors the

principle that courts review only those issues raised by parties and is in keeping with the

requirements of Rule 13(b).

Here, the trial court’s finding of Mother’s incompetency is final because Mother failed

to raise this issue on appeal. Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011)

(citing Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)); In re Alexis

L., 2014 WL 1778261 at *2. Because only one statutory ground is necessary for termination,

we move directly to whether termination of Mother’s parental rights is in the child’s best

interests.

C. Best Interest of Carrington

Mother argues that the evidence did not clearly and convincingly demonstrate that it

was in Carrington’s best interest for Mother’s parental rights to be terminated. The focus of

the best interest analysis is on what is best for the child, not what is best 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). Tennessee Code Annotated section 36-1-113(i) (2010) lists nine

factors that courts may consider in making a best interest analysis. 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 juvenile court determined that it was in Carrington’s best

interest for Mother’s parental rights to be terminated based on the following five statutory

factors:

(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;

....

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(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;

....

(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.

Tenn. Code Ann. §§ 36-1-113(i)(1), (2), (4), (5), (8). We consider each factor relied upon

by the trial court in turn.

The juvenile court found that Mother had not made such an adjustment of her

circumstances, conduct, or conditions so as to make it safe and in the child’s best interest to

be in her home. See Tenn. Code Ann. § 36-1-113(i)(1). Mother stopped going to counseling

sessions, abandoning attempts to address her behavioral and mental health issues. Her

counselor, Ms. Beasley, testified that Mother had not made significant adjustments from

2009 to 2013, despite counseling and treatment during that period. Mother was hospitalized

multiple times since the permanency plan was created in 2011, including one six-day period

in 2011 because she was threatening to harm herself with razor blades. Mother was also

admitted to Rolling Hills Treatment Center in 2012 where she was treated for “polysubstance

dependence, depression, suicidal ideation, and [abuse of the drug Xanax] . . . .”

Additionally, Ms. Beasley testified that Mother has histronic personality disorder,

which is “very, very, very difficult to treat . . . .” Individuals with histronic personality

disorder tend to have dramatic personalities; intense, unstable relationships; attention-seeking

behaviors; rapid shifting of emotions; and often demonstrate rash decision-making and

suicide attempts. From 2009 to 2013 when Ms. Beasley treated Mother, Ms. Beasley saw

“very little movement or change in . . . her emotions, the way she handled things, her

depression, her anger.” Although Mother is in remission on substance abuse issues, the

evidence showed that she has not so adjusted her behavioral, mental health, or personality

issues in order to provide a safe, stable home for Carrington.

The juvenile court also determined that Mother also failed to effect a lasting

adjustment after reasonable efforts by DCS. See Tenn. Code Ann. § 36-1-113(i)(2). DCS

provided a litany of services to Mother over the past ten years: “ongoing services through

DCS and CASA, therapeutic visitation, services through Mule Town Network, Strengthening

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Families Program, broker daycare, services through Maury Cares for Kids, services through

Kids First, services through Strengthening Families, assistance with daycare, sex abuse

counseling, Child Advocacy Center services, anger management, parenting, [ ], services

through Arnell’s Counseling, counseling and medication management through Centerstone,

services through Tennessee Family and Child Alliance (TFCA), Quarterly Progress Reports

and Foster Care Review Board meetings, Child and Family Team Meetings to develop

permanency plans as well as financial assistance for counseling, groceries, and

transportation.” Even with all of these services, Ms. Beasley and the counselor service

worker concluded that Mother has failed to effect a lasting adjustment. Mother has made

commendable progress in recovering from substance abuse, but the evidence showed she

continues to struggle with emotional and mental stability.

Next, the juvenile court found that there was no meaningful relationship between

Mother and Carrington. See Tenn. Code Ann. § 36-1-113(i)(4). Mother claims the juvenile

court erred in considering this factor because Mother had no opportunity to develop a

meaningful relationship with Carrington because she was prohibited from visiting him unless

he requested visitation.4 We do have concerns about allowing a child of Carrington’s age to

be the sole decision-maker in whether visitation should occur. However, the lack of a

meaningful relationship between Mother and Carrington is undisputed. Carrington has lived

in foster care since December 21, 2009, and Mother has had no contact with him since at

least 2012.

Tennessee Code Annotated section 36-1-113(i)(4) requires the court to determine

whether parent and child have a meaningful relationship, not to analyze why such a

relationship may or may not exist. See In re Adoption of J.A.K., No. M2005-02206-COA-

R3-PT, 2006 WL 211807, at *6 (Tenn. Ct. App. Jan. 26, 2006) (stating that the court is not

to consider whether the mother should have another chance to establish a relationship with

child, but rather, what effect termination would have on the child). Regardless of the wisdom

of any visitation order, the absence of a meaningful relationship would significantly hinder

Mother’s ability to parent and care for Carrington. See State Dep’t of Children’s Servs. v.

D.G.B., No. E2001-02426-COA-R3-JV, 2002 WL 31014838, at *9 (Tenn. Ct. App. Sept. 10,

2002) (discussing the meaningful relationship factor in light of the Legislature’s ultimate

goal to return the child to his parent’s care).

Moreover, the juvenile court determined that returning Carrington to Mother’s care

was likely to have a “detrimental/negative effect on the child’s emotional, psychological, and

4

It is unclear from the record whether Carrington’s consent was always a condition to visitation with

Mother.

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medical condition.” See Tenn. Code Ann. § 36-1-113(i)(5). Carrington’s counselor,

Mr. Walker, testified that Carrington has been diagnosed with reactive attachment disorder,

attention deficit disorder, and oppositional defiant disorder. Reactive attachment disorder

usually develops in young children whose basic attachment patterns have been severely

disrupted so that they have trouble forming and sustaining future attachments. In order for

Carrington to develop properly, Mr. Walker stated that Carrington needs “a home that is

stable, and no matter how upset he gets, no matter how hard he tests the attachments, they

don’t break.” Mr. Walker further testified that Carrington’s behavioral problems arise and

intensify when he is faced with “the threat of an impending move.” During these periods,

his behavior is “so off the charts the foster parents said they could not manage him.”

Mr. Walker testified that Carrington became oppositional and combative, while also

becoming “extremely clingy to the foster parents . . . he knew, at some level, that he was at

the brink of being moved.”

Long-term foster care is disfavored by public policy and is seldom in the best interest

of the child. In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *8 (Tenn.

Ct. App. June 26, 2006). Here, Carrington has been in and out of foster care since April

2005. Carrington’s counselor recommends that he be placed in a permanent living situation

in order for his behavioral and emotional condition to improve. Although reunification with

biological parents is always a goal, the best interest of the child is paramount. Carrington

needs a safe, permanent home free of abuse and emotional instability.

Finally, the juvenile court found that Mother’s mental and emotional status would

prevent Mother from effectively caring for and parenting Carrington. See Tenn. Code Ann.

§ 36-1-113(i)(8). Mr. Walker testified that living with Mother, who suffers from histronic

personality disorder, would be a home environment that “would be almost the exact opposite

of what [Carrington] needs.” If Carrington were to be under Mother’s care, Mr. Walker

testified that Mother’s mental and emotional status would “reinforce his attachment disorder

. . . because it would be such a yo-yo experience.” Mr. Walker also testified that even

visitations with Mother “would be disruptive to [Carrington].” The effect of Mother’s

mental and emotional status on Carrington would result in Carrington becoming

“oppositional, uncooperative, rebellious, verbally and physically resist[ant] [to] any efforts

to manage him, [ ], . . . resist[ant] [to] any direction being given to him . . . [and] virtually and

completely uncooperative.” In sum, the evidence showed that Mother’s mental and

emotional status would have a deleterious effect on Carrington’s well-being.

As noted above, the list of statutory factors to consider in a best interest analysis is not

exhaustive, and we do not need to “find the existence of each enumerated factor before [we]

may conclude that [termination] is in the best interest of a child.” In re M.A.R., 183 S.W.3d

652, 667 (Tenn. Ct. App. 2005). Here, we conclude there is clear and convincing evidence

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that the termination of Mother’s parental rights is in the child’s best interest. The evidence

does not preponderate against the findings of the trial court.

III. C ONCLUSION

The juvenile court’s judgment terminating Mother’s parental rights to Carrington H.

is affirmed. Costs of this appeal shall be taxed to Mother.

_________________________________

W. NEAL McBRAYER, JUDGE

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