In Re: Lena G.

05/26/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 4, 2017

IN RE LENA G.

Appeal from the Juvenile Court for Washington County

No. J10171 Robert G. Lincoln, Judge

___________________________________

No. E2016-00798-COA-R3-PT

___________________________________

This is a termination of parental rights case involving the child, Lena G. (“the Child”),

who was fifteen years of age at the conclusion of trial. On October 8, 2013, the

Washington County Juvenile Court (“trial court”) granted temporary legal custody of the

Child to the Tennessee Department of Children’s Services (“DCS”). The Child was

immediately placed in foster care, where she has remained since that date. Following a

hearing, the trial court entered an order on June 11, 2014, adjudicating the Child

dependent and neglected in the care of the parents. On November 19, 2014, DCS filed a

petition to terminate the parental rights of the Child’s mother, Sherry G. (“Mother”), and

her father, Teddy G. (“Father”). The trial court admitted Mother’s hospital records as an

exhibit during trial over her objection. Following a bench trial, the trial court terminated

Mother’s and Father’s parental rights to the Child after determining by clear and

convincing evidence that (1) the parents failed to provide a suitable home for the Child,

(2) the parents failed to substantially comply with the requirements of the permanency

plans, (3) the conditions that led to the removal of the Child from the parents’ custody

still persisted, and (4) Mother was mentally incompetent to adequately care for the Child.

The trial court further found by clear and convincing evidence that termination of

Mother’s and Father’s parental rights was in the best interest of the Child. Both Mother

and Father have appealed. Having determined that the Child had not been removed from

the parents’ home for six months by court order when the petition to terminate parental

rights was filed, we reverse the trial court’s ruling regarding the statutory ground of

persistence of conditions as to both parents. We conclude that the trial court erred in

admitting Mother’s hospital records but determine this error to be harmless. We affirm

the trial court’s judgment in all other respects, including the termination of Mother’s and

Father’s parental rights to the Child.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court

Affirmed in Part, Reversed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which RICHARD H.

DINKINS, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Joseph O. McAfee, Greeneville, Tennessee, for the appellant, Teddy G.

Robert Black, Kingsport, Tennessee, for the appellant, Sherry G.

Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, Assistant

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

Rachel Ratliff, Johnson City, Tennessee, Guardian Ad Litem.

Michelle Caggiano, Johnson City, Tennessee, Attorney Ad Litem.

OPINION

I. Factual and Procedural Background

The Child was previously removed from the parents’ custody in January 2011

after DCS filed a petition alleging that the Child was dependent and neglected. In the

prior DCS case, Mother underwent a psychological assessment in May 2011 with Dr.

Willard Sims; the results of which were admitted as an exhibit at trial. That assessment,

inter alia, provided:

[Mother] has a closed case at Watauga Behavioral Health Services. Her

last diagnoses include Adjustment Disorder with Mixed Disturbance of

Emotions and Conduct, Personality Disorder Not Otherwise Specified, and

[Intellectual Disability].[1] She was seen by Richard Kirk, LCSW of the

Mobile Crisis Response Team on 05/30/96 and was referred for outpatient

treatment. She was seen by Kathy Henley, M.Ed. of the Mobile Crisis

Response Team on 04/26/03 due to an assault by her husband. She was

diagnosed with Mood Disorder Not Otherwise Specified and Partner-

Relational Problem. She was referred for outpatient therapy. She was seen

by James Sapp, M.Ed. of the Mobile Crisis Response Team on 11/24/03

due to an anxiety attack and having made scratches to the back of her left

wrist. She was diagnosed with Anxiety Disorder Not Otherwise Specified

and Depressive Disorder Not Otherwise Specified. A safety plan was able

1

We note that our Supreme Court has urged the use of “intellectual disability” whenever possible to

avoid negative stereotypes and potentially hurtful terminology. See Keen v. State, 398 S.W.3d 594, 600

n.6 (Tenn. 2012) (citing the Tennessee General Assembly’s 2010 amendment to Tennessee Code

Annotated § 39-13-203); In re Christopher S., No. E2012-02349-COA-R3-PT, 2013 WL 5436673, at *3

n.1 (Tenn. Ct. App. Sept. 27, 2013).

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to be developed and she was referred for outpatient treatment. She denied

any history of inpatient mental health treatment or any family history of

mental illness.

***

CLINICAL SUMMARY AND RECOMMENDATIONS:

[Mother] is a 46-year-old Caucasian separated female from Johnson City,

Tennessee who was referred for a psychological evaluation by Melissa

Brown of the Department of Children’s Services. She displayed an anxious

mood and affect with sufficient levels of concentration and attention. She

appeared to be a credible historian and results of this assessment appear to

be valid. On the WAIS-IV, [Mother] obtained a Full Scale IQ of 55 which

falls within the Extremely Low Range of intellectual functioning. She has

a diagnostic history of Mild [Intellectual Disability] and has experienced

difficulties with communication skills and functional academic skills.

Attempts to administer the Personality Assessment Inventory to [Mother]

were unsuccessful. [Mother] reported symptoms of anxiety. She is

currently in a custody dispute related to her daughter.

Based on the information obtained in this evaluation, the following

recommendations are being made:

1. [Mother] would benefit from individual therapy to focus on

symptoms of anxiety. If these symptoms persist or intensify, she

would benefit from a psychiatric consultation.

2. In case of consideration of family reunification, [Mother] would

benefit from intensive family therapy to focus on co-parenting

issues, family rules and consequences, family communication

processes, and on age-appropriate parenting techniques.

3. In case of consideration of family reunification, [Mother] would

benefit from successful completion of a DCS-approved parenting

course to focus on age-appropriate parenting skills.

4. In case of consideration of family reunification, [Mother] would

benefit from some type of in-home service to monitor her behavior

and her home environment, to insure compliance with

recommendations, and to reinforce therapeutic interventions.

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(Emphasis in original.) The trial court ultimately returned custody of the Child to Father

upon finding that DCS failed to present clear and convincing evidence that the Child was

dependent and neglected in Father’s care. The trial court also ordered that Mother was to

have supervised visitation with the Child and that the paternal grandfather would have no

contact with the Child.

The trial court again removed the Child from Father’s custody in April 2012 but

did not find clear and convincing evidence that the Child was dependent and neglected in

its subsequent order. The court subsequently returned the Child to the legal and physical

custody of Father. The court ordered that Father could supervise Mother’s visitation with

the Child and that alcoholic beverages should not be on the premises where the Child

resided.

On October 8, 2013, the trial court entered an emergency order removing the

Child from the parents’ home where both Mother and Father were living with the Child.

In the removal order, the trial court found that “it was reasonable to make no effort to

maintain the child in the home due to the circumstances of the family and the child.”

Following an adjudicatory hearing conducted on May 29, 2014, the trial court entered an

order finding the Child to be dependent and neglected on June 11, 2014. The trial court

found by clear and convincing evidence that the Child was dependent and neglected due

to concerns resulting from Mother’s ongoing mental health issues; Father’s substance

abuse issues; the parents’ failure to acknowledge and protect the Child from the

grandfather, whom the Child alleged sexually abused her; and the parents’ failure to meet

the Child’s needs. Although it is undisputed that both parents were residing in the home,

the Child was in the legal custody of Father at the time of removal.

DCS filed a petition to terminate the parents’ parental rights to the Child on

November 19, 2014. The trial court conducted a bench trial spanning the course of four

days on October 12, 2015; November 6, 2015; January 25, 2016; and March 4, 2016.

Jacki McCartt, the DCS Family Services Worker, testified regarding the efforts DCS

made to assist Mother and Father in providing a suitable home for the Child from

October 8, 2013, through February 8, 2014. According to Ms. McCartt, DCS held an

initial Child and Family Team Meeting (“CFTM”) to determine whether there would be

an appropriate family placement for the Child, but no suitable family placement could be

located. Ms. McCartt explained that DCS representatives discussed with the parents at

that CFTM several concerns, including physical abuse, domestic violence, substance

abuse, and the family’s history with DCS. Subsequently, DCS placed the Child into a

level-three foster home, where she received weekly counseling therapy sessions and case

management with Omni Visions no less than three times per week. According to Ms.

McCartt, a permanency plan was developed in November 2013; however, this plan was

never ratified by the trial court.2

2

The November 2013 permanency plan is not contained within the record before us; therefore, it will not

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Mother and Father resided together throughout the pendency of this case.

According to Ms. McCartt, during the four months following the Child’s removal from

the parents’ home, although DCS attempted to place services in the home to assist the

parents with completing their required assessments, Father refused such in-home

services. While services were also offered to Mother during that period separate from

those offered to Father, Mother did not utilize the services. Father, however, did

cooperate with the Child’s therapy during that time period. Ms. McCartt related that the

issues leading to removal were still ongoing during the four months following the Child’s

removal from the home and that she was unable to recommend unsupervised visitation

for the parents during that time. On several occasions during the pendency of the case,

Father indicated to Ms. McCartt that Mother was hospitalized at Woodridge Psychiatric

Hospital (“Woodridge”). According to Ms. McCartt, Mother continued to experience

ongoing mental health problems and had been hospitalized in Woodridge in April and

August prior to trial.

DCS developed a permanency plan for the family on June 12, 2014, with dual

goals of “Return to Parent” and “Adoption” and a target date for those goals of December

31, 2014. The permanency plan required the parents to complete a parenting assessment

and follow all recommendations from such assessment; cooperate with in-home services

and all recommendations they may provide; ensure the Child had no contact with the

paternal grandfather; participate “actively, openly, and honestly” in family therapy and

the Child’s therapy upon the request of the therapist; develop communication skills

during family therapy; and engage in visitations with the Child. Additionally, Father was

to complete an alcohol and drug assessment, follow all recommendations from such

assessment, complete a psychological assessment, and follow all recommendations from

that assessment. The trial court ratified this permanency plan on June 30, 2014, entering

an order reflecting the ratification on July 11, 2014. In its order, the court found that “the

tasks in the Permanency Plan are reasonable and related to achieving permanency for this

child and towards remedying the reasons that the child requires foster care.” As part of

the June 2014 permanency plan, Mother was also to complete a psychological assessment

and follow the recommendations therefrom; however, Mother objected to this

requirement in court. The trial court ordered that the requirement for Mother to

participate in a psychological assessment and follow all recommendations be stricken

from the plan, but Mother was ordered to continue in case management with Frontier

Health.

be considered by this Court when addressing the ground of substantial noncompliance with the

permanency plans. See In re T.N.L.W., No. E2006-01623-COA-R3-PT, 2007 WL 906751, at *4 (Tenn.

Ct. App. Mar. 26, 2007) (“We have previously held that when DCS is relying on substantial

noncompliance with the permanency plan as a ground for termination of parental rights, it is essential that

the plan be admitted into evidence.”).

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Following ratification of the June 2014 permanency plan, Mother underwent a

parenting assessment, while Father underwent a parenting assessment, alcohol and drug

assessment, and psychological assessment. Father’s alcohol and drug assessment

conducted by Robert C. Perry, MMHC, with Families Free provided, inter alia:

[Father] presents with a very defiant attitude and is easily offended. He

appears to be very uncomfortable around strangers and has a difficult time

expressing and/or defining his emotions. According to [Father], his

drinking at one time was significant and it is this tester[’]s belief that

episodes of binge drinking today is very likely significant though he did not

score as alcohol dependent at this time. It is this tester’s opinion that it will

be very difficult for [Father] to accept any type of traditional A&D

counseling and since his cognitive function is unknown to this tester, I can

only presume that his ability to comprehend A&D psycho-education

materials would be limited. Peer counseling and AA is likely to be the best

fit for [Father].

Father’s psychological assessment recommendations included:

Based on the information obtained in this evaluation, the following

recommendations are being made:

1. [Father] would benefit from individual therapy and alcohol and drug

treatment. He would benefit from therapy which addresses any

symptoms of anxiety. If these symptoms persist or intensify, he

would benefit from a psychiatric consultation. He would benefit

from therapy which addresses his pattern of substance use and

relapse prevention. He would benefit from the administration of

random urine drug screens.

2. [Father] would benefit from family therapy together with all

princip[als] involved to focus on co-parenting issues as well as on

the impact of alcohol and drug use in the home.

3. [Father] would benefit from successful completion of a DCS

approved parent education course to focus on age-appropriate

parenting techniques.

4. In case of consideration of family reunification, [Father] would

benefit from some type of in-home service to monitor his behavior in

his home environment, to insure compliance with recommendations,

and to reinforce therapeutic interventions.

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The report of the parenting assessment for both Mother and Father stated in relevant part

as follows:

 Both [Father] and [Mother] appear to be challenged to meet the

parenting demands of their daughter. It should be noted that testing

revealed cognitive limitations and challenges in their ability to

process both auditory and visual information. This reality will need

to be considered as those who work with [Father] and [Mother] plan

and help them to parent their child. INFORMATION AND

GUIDANCE will need to be presented in brief, incremental

components with modeled examples of appropriate parenting, along

with opportunities for each parent to demonstrate understanding and

competence.

 INTENSIVE PARENTING EDUCATION which includes

appropriate developmental expectations, the importance of providing

a nurturing and supportive environment for [their] child, and being

emotionally available for [the Child], is recommended. Alternatives

to corporal punishment as disciplinary practice may be included,

with strategies specific to the needs and motivation of a teen.

 FAMILY COUNSELING, to help guide these parents to establish a

parental role with their daughter and to support both parents and

child to create a respectful and supportive relationship within the

family dynamic, is advised.

As to Father, his parenting assessment also stated:

[Father] has established himself as hostile toward interventions. Such

perspective in concert with cognitive limitations suggests a high likelihood

that he may lack the ability to gain motivation and investment in the well-

being of his child.

Additionally, Mother’s parenting assessment explained:

If [the Child] is experiencing school issues similar to those her mother

could not resolve herself, the likelihood, after thirteen DCS referrals, of

[Mother] being able to parent and provide support for [the Child] to be

successful in school attendance, is questionable. [Families Free services] to

address the issues that led to custody, as well as wrap around services and

educational support that will support the child to be capable/willing to self-

monitor to attend school, are recommended.

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On January 6, 2015, DCS developed an updated permanency plan for the parents,

which included essentially the same tasks for the parents to complete as the previous

plan. The new plan, however, incorporated the recommendations from the parents’

completed assessments and provided a target date of June 30, 2015. As recommended by

the parenting assessments, the permanency plan required the parents to participate in

intensive parenting education, cooperate with in-home services, and participate in family

therapy “to establish a parental role with [the Child]” and launch a “respectful and

supportive relationship within the family dynamic.” Regarding the intensive parenting

education, the parents were to “demonstrate participation and understanding of concepts,”

“cooperate with the service provider and program requirements until successfully

completed,” and demonstrate during visits their “ability to utilize parenting skills

learned.”

The updated permanency plan also required Mother and Father to allow DCS and

the guardian ad litem to visit the home during the pendency of the case in order to

monitor “safety issues” and the “appropriateness of the environment.” Additionally,

Father was to participate in individual therapy as recommended by his psychological

assessment and to attend weekly Alcoholics Anonymous (“AA”) meetings as

recommended by his alcohol and drug assessment. The trial court ratified this

permanency plan on January 12, 2015, and entered an order reflecting the ratification on

January 27, 2015. In its order, the court found that “the tasks in the Permanency Plan are

reasonable and related to achieving permanency for this child and towards remedying the

reasons that the child requires foster care.”

Amanda Shipley was the Child’s case manager with Omni Visions from January

2014 to December 2014. Ms. Shipley testified that as case manager, she saw the Child

weekly and facilitated visits between the Child and the parents. Most visits occurred in

the family home. Ms. Shipley also attended the Child’s therapy appointments. The

parents agreed to attend the Child’s therapy sessions twice a month; however, according

to Ms. Shipley, “that only happened a few times.” Following a court hearing in February

2014, Father informed Ms. Shipley that he would not attend therapy again. Thereafter,

the parents stopped attending family therapy for approximately six or seven months.

After that period, according to Ms. Shipley, they attended “just a few more” while she

was assigned to the case. During one visit, Ms. Shipley overheard Father instructing the

Child not to talk or cooperate with DCS. Ms. Shipley explained that there were

numerous times when Mother could not attend visits because she was hospitalized. She

also indicated that Mother hardly spoke or interacted with the Child during the visits

Mother did attend.

Ms. Shipley testified regarding two occasions when she had to cancel the visits

between the Child and the parents. In April 2014, a cancellation occurred upon Ms.

Shipley’s and the Child’s arrival because Father appeared intoxicated. When Ms. Shipley

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ended the visit, Father began cursing and was gesturing rudely to her and the Child as

they drove away. Father subsequently left voice mail messages for Ms. Shipley wherein

he admitted that he had been “drinking a little bit today.” According to Ms. Shipley, the

Child cried during the entire forty-five-minute drive back to Bristol following that visit.

Additionally, Ms. Shipley had to cancel a visit in May 2014 due to Father’s “aggressive”

behavior. Father appeared to be angry with the Child, and when Father questioned the

Child about a statement she had made in court the previous day, he yelled at her and said,

“[f]ine then, you can just stay in foster care.” Father also was using curse words and

“flipped [them] off.”

At the time of trial, Kerri Rogers was the Child’s case manager with Omni

Visions. She had replaced Ms. Shipley as the Child’s case manager in December 2014.

At trial, Ms. Rogers explained having knowledge of at least five or more instances when

Mother was hospitalized at Woodridge. Ms. Rogers reported that there were visits with

the Child at the parents’ home when Mother slept in the recliner during the entire visit.

Even when Mother was awake, she was not interactive with the Child. Ms. Rogers

reportedly observed Mother on multiple occasions speaking to people in the home or

under the porch who were not present.

Ms. Rogers further testified that Father became angry on one occasion, throwing a

basketball in her direction. On another occasion, she observed Father instructing the

Child not to take her court-ordered medication. During a more recent visit in September

2015, Father had appeared as though he were intoxicated. Ms. Rogers described Father

as sweating, slurring his words, and talking loudly. Mother informed Ms. Rogers that

Father had been drinking. Ms. Rogers indicated that she had never felt comfortable

recommending to DCS that the parents have unsupervised visitation with the Child.

Dr. Helen Lane testified as an expert in the field of child development and

parenting assessments. She performed Mother’s and Father’s respective parenting

assessments. During Father’s assessment, he described himself as “[h]ot tempered

sometimes when people keeps on messing with me.” Father also reported a history of

driving under the influence charges, but stated that he had not confronted as many legal

issues since the Child’s birth. In her parenting assessment, Dr. Lane concluded that

Father was “at high risk to engage in inappropriate parenting practices” and that there is a

“high likelihood that he may lack the ability to gain motivation and investment in the

wellbeing of his child.” Dr. Lane explained that Father’s results from testing placed him

within the “moderately mentally challenged range.” Furthermore, Father tended to

minimize the circumstances and stressors surrounding his family’s circumstances, listing

family strengths that Dr. Lane, as assessor, did not observe.

As to Mother, Dr. Lane expressed concern that she appeared not to be invested in

the Child. According to Dr. Lane, Mother did not display a warmth or nurturing behavior

toward the Child and seemed disconnected during the visit. Mother’s results from testing

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during her parenting assessment placed her in the “moderately mentally challenged range

of cognitive functioning.” Mother informed Dr. Lane that she had admitted herself to

Woodridge about two or three times that year. Dr. Lane also took note that Mother was

very self-focused despite the Child’s absence from the home, opining that Mother might

be unable to adequately parent the Child due to her lack of concern for the Child.

Dr. Lane articulated additional concern regarding the lack of behavioral guidelines

provided by the parents and her observation that the Child “seemed to be more in control

than anyone in that home.” According to Dr. Lane, if the Child were left in the

environment of the parents’ home, it was unlikely that Mother would be able to bring the

Child into “independent and sustaining adulthood.” Dr. Lane maintained that the parents’

home would not provide a “good, healthy situation” for the Child, and if the parents did

not complete the recommendations from the parenting assessments, the home would be

unsafe for the Child.

Lisa Tipton, the executive director and custodian of records for Families Free,

testified that the agency provided intensive parenting education to the parents. Certain

Families Free records were admitted as an exhibit at trial. Those records reflect the visits

to the family home and telephone conversations between the case manager and the

parents. On January 14, 2015, the case manager visited Mother at Woodridge, when

Mother reported that she was seeing and hearing “bad men” again. Families Free

attempted to schedule a session on January 14, 2015, but Father did not answer.

According to Ms. Tipton, a session scheduled for January 20, 2015 was cancelled by

Father. On January 21, 2015, the Families Free case manager travelled to the parents’

home for a scheduled session, but no one was home. Subsequently, Father called and

cancelled the session scheduled for January 26, 2015.

Families Free records further established that during a case manager’s visit with

Mother at Woodridge on January 28, 2015, Mother reported that she had begun hearing

and seeing people again and that Father had stopped providing medication to her because

it was not helping. On the same day, when a Families Free case manager made a visit to

the home, Father was present. Father became angry when the case manager arrived.

According to Ms. Tipton, Father had been served with the petition to terminate parental

rights earlier that day. Father made statements to the Families Free case manager

declaring that he would blow up the DCS building, kill the DCS family services worker,

blow up the entire courthouse, and kill the judge. According to Ms. Tipton, the records

reflected that as of January 28, 2015, “due to [Father’s] constant angry outbursts,

[Families Free had] never been able to get into any of the parenting education

curriculum.” Thereafter, Families Free services ended and were not reauthorized to begin

again until July 2015.

A Families Free case manager met with Father on June 21, 2015, for an initial

appointment after services were reauthorized. While completing paperwork, Father

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reported that Mother was in Woodridge. Father also indicated that he had a drinking

problem and was attending AA meetings once a week. On July 27, 2015, Father

contacted the case manager to cancel a scheduled parenting education session; the visit

was rescheduled for July 31, 2015. Father, however, called and again cancelled the

scheduled parenting education session indicating he “needed to pay his light bill” and

would not be home. On August 24, 2015, the case manager visited the parents’ home and

attempted to develop a service plan with the parents. Father appeared “resistant to

agreeing with any service plan goals” at that time. During that visit, the case manager

noted that Mother’s “verbal communication and acknowledgment of the situation was

very limited.” On August 31, 2015, the case manager again visited the parents’ home,

observing Mother’s agitation demonstrated by her talking, yelling, and apparent

responses to someone the case manager did not see. Mother subsequently began hitting

the couch. Father indicated to the case manager that Mother “gets like this for a few

days” before needing to be committed to Woodridge. Subsequently, the case manager

met with Father at the family home regarding the first parenting education curriculum

session. The case manager reported that Father was “friendly and open” during that

session.

Father cancelled a subsequent parenting education session scheduled for October

8, 2015, explaining that “he was heading to the hospital to see [Mother]” and would not

be home. Father did meet with the case manager on October 22, 2015. According to

agency records, “Father indicated that [Mother] had gotten a prescription the previous

week for a nebulizer, however, he had been unable to obtain the nebulizer for her, which

resulted in her being hospitalized again.” The case manager’s notes further state:

[Father] was engaged with [case manager], but remains hostile against DCS

and “the state” and feels like he is being targeted. He has very little self-

awareness of the impact his actions, including his alcoholism and

[Mother’s] deteriorating mental and physical health[,] have on [the Child].

His hostile attitude and resistance to change, in addition to his limited

cognitive functioning, present difficulties in [Father’s] learning and

implementing new parenting techniques and approaches.

On October 27, 2015, Father again cancelled a parenting education session and

indicated that Mother was hospitalized. The parenting education session was rescheduled

for the next day, which Father later cancelled by voicemail. The case manager noted that

Father’s speech was “slurred on the voice mail.” Father subsequently cancelled a session

for October 29, 2015, by reason of his claimed “strep throat.” The case manager again

noted that Father’s speech appeared to be slurred. Father informed her he had not been

drinking and blamed the slurred speech on his throat condition. The records also

demonstrate that Father notified the case manager that he would not meet on October 30,

2015, “because he had to pay his bills.”

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Ms. Tipton, also testifying at trial as an expert in the field of social work,

explained that the majority of Families Free’s efforts with Father and Mother were

expended by attempting to schedule parenting education sessions and explaining to the

parents reasons for the services and why DCS had secured individuals to enter their home

for the services. Although Mother and Father were offered thirty-two sessions for

parenting education, twenty-one of those sessions were cancelled. The records also

indicate that Mother was hospitalized during several of those offered sessions.

Explaining that the parents were not able to demonstrate the skills that Families Free

hoped to develop, Ms. Tipton held concerns should the Child be returned to the custody

of the parents. Her concerns were primarily due to the financial instability in the home,

the parents’ inability to properly parent the Child, and the safety of the family members.

According to Ms. Tipton, the parents would be unable to safely parent the Child in the

foreseeable future because of mental health issues, relational challenges, and lack of

commitment to services offered to them.

As explained by Ms. McCartt, the parents had not completed the requirements of

their permanency plans to an extent that would permit her to recommend that the parents

have unsupervised visitation with the Child or to allow the Child to return to their

custody. Although Father had completed his mental health intake with Frontier Health,

he did not continue to work with Frontier Health after his intake appointments. Father

had failed to accept or work with in-home services, and although he allowed services to

enter his home, he did not cooperate with those services. Father attended an AA meeting

at least once a month but not once a week as recommended by his assessment. Ms.

McCartt related several instances of Father’s poor conduct. Specifically, he had yelled at

her, made threats of physical harm, and left voice mails cursing her. Moreover, Father

had called the DCS attorney inappropriate names and sounded inebriated during various

voice mail messages.

Ms. McCartt elucidated her apprehension that the parents had not acknowledged a

concern for the Child while in the company of the paternal grandfather, who had been

accused of sexually molesting the Child. Although the parents had complied with the no-

contact order regarding the grandfather, it was undisputed that he lived on the same street

as the parents and served as their primary source of transportation.

As indicated by Ms. McCartt, while the Child had been residing and doing well in

her current foster home for more than a year, improvements in her behavior had been

observed. Meanwhile, visitation with Mother had ceased, and visitation with Father had

been restricted to a therapeutic setting. A motion to suspend Mother’s visitation, filed by

the guardian ad litem and attorney ad litem on behalf of the Child, was pending at the

time of the termination hearing. An interim order had been entered prohibiting contact

between Mother and the Child pending a hearing on the merits.

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As the Child’s therapist in both individual and family therapy, Theresa Fletcher

described the Child to be in a “condition of suffering” when she was removed from the

parents’ home. The Child struggled with self-care, could not verbalize her emotions,

perceived herself as an adult, maintained poor social skills, had suffered the trauma of

alleged sexual abuse, and was depressed. Her symptoms were consistent with Post

Traumatic Stress Disorder. Throughout the course of her treatment, the Child met with

Ms. Fletcher weekly and, as of November 2015, had met with Ms. Fletcher seventy-six

times since she had been in DCS custody. Ms. Fletcher discussed the improvements she

had observed while the Child attended therapy. These included the Child’s ability to

better process and verbalize her thoughts and feelings, becoming more confident, and

improving her social skills.

Although Ms. Fletcher recognized that the Child loved her parents, she expressed

concern regarding whether the Child’s needs were being met due to the dysfunction of

the family. The home environment was described as a “clear role reversal” between the

Child and the parents. Specifically, when Mother was present, the Child was the

caregiver. Although a bond existed between the Child and Mother, Ms. Fletcher opined

that Mother did not appear to have the ability to properly parent the Child. Ms. Fletcher

also reasoned that Mother’s capacity to parent was unlikely to be improved due to

Mother’s significant deterioration over the year prior to trial, including Mother’s

observed speaking to persons and seeing things not present.

Ms. Fletcher further opined that the resolution of issues between the Child and her

parents was limited by Father’s lack of sobriety, Mother’s mental health, the parents’

inability to resolve conflicts effectively, and Father’s lack of anger management. Ms.

Fletcher would not support the Child’s return to the parents’ home at that time, indicating

that placing the Child back into the parents’ environment would cause the Child to

“erode.” Although having concerns about severing the contact between the parents and

the Child, Ms. Fletcher believed the Child’s welfare would be enhanced by her remaining

in foster care.

At trial, Father submitted photographs of himself and the Child to demonstrate

their mutual bond. The photographs also depicted the Child’s bedroom and food existing

in his home. Regarding the therapeutic visits with the Child and Ms. Fletcher, Father

stated that he enjoyed the visits, believing the Child enjoyed them as well.

Admitting that a visit with the Child was cancelled by reason of his alcohol

consumption, Father also acknowledged that he had consumed alcohol and was upset

when he left a voice mail message for his case manager. Father claimed that he was in

such condition because he was “tired of being harassed by The State.” According to

Father, he had addressed the situation in an effort to seek the Child’s return. With

reference to his demeanor, Father further testified that although he had thrown a

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basketball out of frustration during one visit, he in fact was aiming at the house and not

Ms. Rogers.

By Father’s account, the AA meetings he had been attending for approximately

three months were beneficial. Although he had attempted to attend AA meetings every

week, he was not always successful. Father submitted three documents reflecting the AA

meetings he did attend. Despite recognizing that AA was a twelve-step program, Father

was unable to identify the first step of the program. Furthermore, although he had not

obtained a sponsor in the program, he insisted that he had not consumed alcohol in six

months.

According to Father, Mother and he intended to continue to reside together. While

Father observed Mother speaking to nonexistent people, he blamed Mother’s medication

for this behavior. Father conceded that Mother would be unable to care for the Child by

herself if he was not present. Additionally, although Father had not allowed the paternal

grandfather to have contact with the Child, he did not believe the grandfather had

sexually assaulted her.

The Child’s testimony during trial focused on various issues. She suggested that

her relationship with Father was strong and that the therapy sessions were going well.

Indicating her love for Mother and a desire to continue seeing her, the Child expressed

worry concerning her parents and their well-being. According to the Child, although her

grades were “decent” when she resided with her parents, her current performance in

school was excellent. The Child described her foster parents as “good to [her].”

As additional evidence, DCS subpoenaed for trial Mother’s hospital records from

Woodridge. Mother objected to their admission into evidence. The trial court ultimately

admitted Mother’s hospital records as a trial exhibit.3

Independent of the Woodridge hospital records, Mother’s and Father’s respective

medical records from Frontier Health also were admitted into evidence. Neither parent

objected to the admission of the Frontier Health records. As a recommendation of his

psychological assessment, Father was to participate in individual therapy. Father’s

Frontier Health records reflect that he appeared for an intake and initial therapy session

on March 10 and 12, 2015, and appeared to be frustrated. Reporting to a representative

of Frontier Health that he was only required to attend the initial intake appointment,

Father declined further treatment.

Mother’s Frontier Health records evince a medical history since 2003. Mother

was reported as “no show” for her aftercare appointments with Watauga Behavioral

3

The contents of the Woodridge Psychiatric Hospital records have not been included in the Factual and

Procedural Background section of this Opinion.

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Health Services (“WBHS”), a division of Frontier Health, on November 26, 2013;

January 7, 2014; and April 1, 2014. On October 8, 2014, Mother was seen by the

Frontier Health Mobile Crisis Response Team. Mother stated at the time that she was

depressed and held thoughts about killing her husband. Mother also reported not having

taken some of her medication in approximately two months. Consequently, she was

referred to the respective Crisis Stabilization Unit (“CSU”). While in the CSU, Mother

expressed her willingness to participate in case management services.

On October 9, 2014, Mother participated in a group discussion session. The group

facilitator’s notes provided that Mother “will continue to work on her goals regarding

reduction of symptoms of auditory hallucinations, adjustment difficulties, and mild

[intellectual disability], with medication stabilization and compliance, therapy to help

increase healthy coping skills, and utilization of healthy coping skills more often to

improve the moment, and overall quality of life.” On October 10, 2014, Mother attended

the treatment group and was alert and engaged during the session. On October 11, 2014,

Mother participated in a group therapy session and was discharged from the CSU, with

planned aftercare to attend scheduled follow-up appointments at WBHS. On October 21,

2014, Mother failed to appear for her appointment with WBHS.

On October 27, 2014, the case manager with WBHS met with Mother at

Woodridge. Mother reported an admission to Woodridge after experiencing increased

anxiety and depression. She agreed to participate in case management services at that

time. WBHS was to be contacted by Woodridge staff for an appointment upon Mother’s

discharge. On November 11, 2014, Mother failed to appear for her appointment with

WBHS. Subsequently on November 26, 2014, the WBHS case manager again met with

Mother at Woodridge. Mother reported having been admitted to the hospital after

experiencing suicidal ideations and increasing depression. At that time, Mother agreed to

participate in case management services with WBHS. Woodridge staff was to contact the

case manager for an appointment upon Mother’s discharge. On December 9, 2014,

Mother again failed to appear for her WBHS appointment. During a December 23, 2014

meeting with the WBHS case manager at Woodridge, Mother reported having entered

Woodridge after experiencing hallucinations of animals and people. Mother again agreed

to participate in case management services with WBHS. Woodridge staff were to

schedule aftercare appointments upon Mother’s discharge, but on December 23, 2014,

and January 6, 2015, Mother missed her appointments with WBHS.

When the WBHS case manager again met with Mother at Woodridge on January

12, 2015, Mother reported a Woodridge admission after experiencing both auditory and

visual hallucinations. Mother informed the case manager that “she was seeing lots of

people, who all were talking, but she could not make out anything they were saying.”

Mother agreed to participate in case management services at WBHS. The case manager’s

note indicated that WBHS would be contacted by Woodridge staff for appointments upon

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Mother’s discharge from Woodridge. On January 27, 2015, Mother again missed her

appointment at WBHS.

On February 2, 2015, when the WBHS case manager met with Mother at

Woodridge, Mother stated that her hospitalization was due to the “same reason that [she

was] always admitted to Woodridge for.” The case manager observed Mother to be

extremely agitated, with Mother complaining of both auditory and visual hallucinations.

Mother again reported a willingness to participate in case management services with

WBHS. The case manager’s note indicated that Woodridge staff would contact WBHS

to schedule appointments upon Mother’s discharge. Nonetheless, on February, 10 and

17, 2015, and March 17, 2015, Mother was reported as a “no show” for her appointments.

During a July 22, 2015 meeting with the WBHS case manager at Woodridge, Mother

reported an admission to Woodridge following a fight with her husband concerning

cigarettes. Mother again indicated a willingness to participate in case management

services at WBHS.

Following the trial, the court entered a final order on March 22, 2016, terminating

Mother’s and Father’s parental rights to the Child. The court found by clear and

convincing evidence that (1) Mother and Father had failed to provide a suitable home, (2)

Mother and Father had failed to substantially comply with the requirements of the

permanency plans, (3) Mother was mentally incompetent and unable to care for the

Child, and (4) the conditions leading to the Child’s removal from the home still persisted

as to Mother and Father. The trial court further found by clear and convincing evidence

that termination of Mother’s and Father’s parental rights was in the best interest of the

Child. Mother and Father timely appealed.

II. Issues Presented

On appeal, Mother presents six issues, which we have restated as follows:

1. Whether the trial court erred by admitting Mother’s hospital records

into evidence at trial.

2. Whether the trial court erred by finding clear and convincing

evidence that Mother abandoned the Child by failing to establish a

suitable home.

3. Whether the trial court erred by finding clear and convincing

evidence that Mother had substantially failed to comply with the

statements of responsibilities in the permanency plans.

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4. Whether the trial court erred by finding clear and convincing

evidence that the conditions leading to the Child’s removal into

protective custody persisted.

5. Whether the trial court erred by finding clear and convincing

evidence that Mother was mentally incapable of caring for the Child.

6. Whether the trial court erred by finding clear and convincing

evidence that it was in the Child’s best interest to terminate Mother’s

parental rights.

Father presents four issues, which we have likewise restated as follows:

7. Whether the trial court erred by finding clear and convincing

evidence that Father abandoned the Child by failing to establish a

suitable home.

8. Whether the trial court erred by finding clear and convincing

evidence that Father had substantially failed to comply with the

statements of responsibilities in the permanency plans.

9. Whether the trial court erred by finding clear and convincing

evidence that the conditions leading to the Child’s removal into

protective custody persisted.

10. Whether the trial court erred by finding clear and convincing

evidence that it was in the Child’s best interest to terminate Father’s

parental rights.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine

“whether the trial court’s findings, made under a clear and convincing standard, are

supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530

(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,

accompanied by a presumption of correctness unless the evidence preponderates against

those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524

(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are

reviewed de novo with no presumption of correctness. See In re Carrington H., 483

S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court’s

determinations regarding witness credibility are entitled to great weight on appeal and

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shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.

Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their

children under both the United States and Tennessee constitutions.” Keisling v. Keisling,

92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not

absolute and parental rights may be terminated if there is clear and convincing evidence

justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,

97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71

L.Ed.2d 599 (1982)). As our Supreme Court has recently explained:

The parental rights at stake are “far more precious than any property

right.” Santosky, 455 U.S. at 758-59. Termination of 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 of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also

Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental

rights is “final and irrevocable”). In light of the interests and consequences

at stake, parents are constitutionally entitled to “fundamentally fair

procedures” in termination proceedings. Santosky, 455 U.S. at 754; see

also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27

(1981) (discussing the due process right of parents to fundamentally fair

procedures).

Among the constitutionally mandated “fundamentally fair

procedures” is a heightened standard of proof—clear and convincing

evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of

unnecessary or erroneous governmental interference with fundamental

parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).

“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). The clear-and-

convincing-evidence standard ensures that the facts are established as

highly probable, rather than as simply more probable than not. In re

Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183

S.W.3d 652, 660 (Tenn. Ct. App. 2005).

***

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

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supported by a preponderance of the evidence, amount to clear and

convincing evidence of the elements necessary to terminate parental rights.

In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]

rights must prove all the elements of their case by clear and convincing evidence,”

including statutory grounds and the best interest of the child. See In re Bernard T., 319

S.W.3d 586, 596 (Tenn. 2010).

IV. Mother’s Woodridge Hospital Records

As a threshold issue, Mother contends that because her Woodridge hospital

records were improperly admitted into evidence during trial, the termination of her

parental rights should be reversed and remanded for a new trial. Mother objected to the

admission of her hospital records on the basis of Tennessee Code Annotated § 68-11-

404(a) (2013). Although we conclude that the trial court erred in admitting Mother’s

hospital records, we determine that error to be harmless because the remaining proof

supports by clear and convincing evidence the termination of Mother’s parental rights.

Tennessee Code Annotated § 68-11-404 is contained within Part 4 “Hospital

Records as Evidence,” of Chapter 11, “Health Facilities and Resources,” of Title 68,

“Health, Safety and Environmental Protection,” of the Tennessee Code. The Tennessee

Court of Criminal Appeals has recognized that

[t]he main purpose of T.C.A. §§ 68-11-401 et seq. is to provide a procedure

for a hospital, where it has no interest in the case, to respond to a subpoena

duces tecum for hospital records by filing copies of the records

authenticated by affidavit instead of by sending a witness to the hearing

with the originals.

State v. Hutchinson, C.C.A. No. 887, 1990 WL 99386, at *1 (Tenn. Crim. App. July 19,

1990). Few appellate decisions have addressed the applicability of this statutory scheme

to specific situations; however, certain sections of Part 4 have been applied by this Court

in termination of parental rights proceedings. See e.g. In re C.I.J., M2006-02192-COA-

R3-PT, 2007 WL 2091228, at *4-8 (Tenn. Ct. App. July 17, 2007) (examining the

procedural requirements of Tennessee Code Annotated §§ 68-11-402, 403, 405).

The hospital records at issue were subpoenaed by DCS, thereby triggering

application of Tennessee Code Annotated § 68-11-401, et seq. When hospital records are

subpoenaed to court, Tennessee Code Annotated §§ 68-11-402 and -405 allow for the

custodian of records to deliver a copy of the records requested directly to the court with

an accompanying affidavit authenticating the records, in lieu of the custodian of records

appearing personally at trial. The subpoenaed hospital records should be sealed upon

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their arrival to the court. See Tenn. Code Ann. § 68-11-403 (2013). With reference to

sealed envelopes or wrappers, Tennessee Code Annotated § 68-11-403 provides in

pertinent part:

The copy of the records shall be separately enclosed in an inner envelope or

wrapper, sealed, with the title and number of the action, name of witness

and date of subpoena clearly inscribed on the envelope or wrapper. The

sealed envelope or wrapper shall then be enclosed in an outer envelope or

wrapper, sealed and directed as follows:

(1) If the subpoena directs attendance in court, to the clerk of such

court or to the judge thereof[.]

Opening the sealed records is controlled by Tennessee Code Annotated § 68-11-404(a),

which provides in relevant part:

(a)(1) Unless the sealed envelope or wrapper is returned to a witness who is

to appear personally, the copy of records shall remain sealed and shall be

opened only at the time of trial, deposition or other hearing, upon the

direction of the judge, court, officer, body or tribunal conducting the

proceeding, in the presence of all parties who have appeared in person or by

counsel at such trial, deposition or hearing. Before directing that such inner

envelope or wrapper be opened, the judge, court, officer, body or tribunal

shall first ascertain that either:

(A) The records have been subpoenaed at the instance of the patient

involved or such patient’s counsel of record;

(B) The patient involved or someone authorized in such patient’s

behalf to do so for such patient has consented thereto and waived

any privilege of confidentiality involved; or

(C) The records have been subpoenaed in a criminal proceeding.

DCS, in seeking to admit Mother’s hospital records, also relied on Tennessee Rule of

Juvenile Procedure 39(e)(5) (2014), which provides:

All findings of fact shall be based on clear and convincing evidence.

Neither the husband-wife, physician-patient, psychologist-patient, or

- 20 -

clergy-penitent privilege shall be grounds for excluding any evidence in

termination of parental rights proceedings.4

We note at the outset that “admissibility or exclusion of evidence rests within the

sound discretion of the trial court which should be reversed only for abuse of that

discretion.” See Austin v. City of Memphis, 684 S.W.2d 624, 634 (Tenn. Ct. App. 1984);

see also In re Estate of Greenamyre, 219 S.W.3d 877, 886 (Tenn. Ct. App. 2005) (“[A]

trial court will be found to have ‘abused its discretion’ only when it applies an incorrect

legal standard, reaches a decision that is illogical, bases its decision on a clearly

erroneous assessment of the evidence, or employs reasoning that causes an injustice to

the complaining party.”) (internal citations omitted).

In its written order, the trial court found that “the records from Woodridge

Psychiatric Hospital were properly entered into evidence in this cause.” In its oral ruling,

the trial court ultimately determined that Tennessee Rule of Juvenile Procedure 39(e)(5)

dictated the admission of Mother’s hospital records and overcame the psychologist-

patient privilege. The trial court correctly noted that Rule 39(e)(5), as it existed at the

time of trial, provided that the psychologist-patient privilege would not have prevented

evidence from being entered in termination proceedings. However, Tennessee Code

Annotated § 68-11-404(a) is not predicated on the psychologist-patient privilege

addressed by Rule 39(e)(5); instead, Tennessee Code Annotated § 68-11-404(a) instructs

trial courts relative to procedure allowing for the admission of a patient’s hospital records

into evidence. As such, Tennessee Code Annotated § 68-11-404(a) would apply

regardless of whether an issue of privilege existed. Inasmuch as the trial court’s basis for

admitting the hospital records was erroneous, we determine that Mother’s hospital

records were not properly admitted into evidence. However, relative to the issues

presented on appeal, we further determine that the trial court’s error in admitting

Mother’s hospital records into evidence is harmless because the remaining clear and

convincing evidence supports the termination of Mother’s parental rights.

V. Grounds for Termination of Parental Rights

Tennessee Code Annotated § 36-1-113 (Supp. 2016) lists the statutory grounds for

termination of parental rights, providing in relevant part as follows:

(a) The chancery and circuit courts shall have concurrent jurisdiction

with the juvenile court to terminate parental or guardianship rights to

a child in a separate proceeding, or as a part of the adoption

proceeding by utilizing any grounds for termination of parental or

4

Although the Tennessee Rules of Juvenile Procedure were restructured in 2016, this rule was in effect at

both the time of the petition’s filing and the trial itself.

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guardianship rights permitted in this part or in title 37, chapter 1,

part 1 and title 37, chapter 2, part 4.

***

(c) Termination of parental or guardianship rights must be based upon:

(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) That termination of the parent’s or guardian’s rights is in the

best interests of the child.

The trial court ultimately determined that the evidence clearly and convincingly

supported a finding of four statutory grounds to terminate Mother’s parental rights: (1)

abandonment for failure to provide a suitable home, (2) substantial noncompliance with

the permanency plans, (3) mental incompetence to adequately care for the Child, and (4)

persistence of conditions leading to removal of the Child. The trial court also determined

that the evidence clearly and convincingly supported a finding of three statutory grounds

to terminate Father’s parental rights: (1) abandonment for failure to provide a suitable

home, (2) substantial noncompliance with the permanency plans, and (3) persistence of

conditions leading to removal of the Child. We will address each statutory ground in

turn.

A. Abandonment by Failure to Provide a Suitable Home

The trial court terminated Mother’s and Father’s parental rights on the statutory

ground that they abandoned the Child by failing to provide a suitable home. Tennessee

Code Annotated § 36-1-113(g)(1) provides, as a statutory ground for termination:

(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has

occurred[.]

Tennessee Code Annotated § 36-1-102(1)(A) (Supp. 2016) defines abandonment, in

relevant part, as:

(ii) The child has been removed from the home of the parent or parents or

the guardian or guardians as the result of a petition filed in the juvenile

court in which the child was found to be a dependent and neglected child,

as defined in § 37-1-102, 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

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finds, that the department or a licensed child-placing agency made

reasonable efforts to prevent removal of the child or that the circumstances

of the child’s situation prevented reasonable efforts from being made prior

to the child’s removal; and for a period of four (4) months following the

removal, the department or agency has made reasonable efforts to assist the

parent or parents or the guardian or guardians to establish a suitable home

for the child, but that the parent or parents or the guardian or guardians

have made no reasonable efforts to provide a suitable home and have

demonstrated a lack of concern for the child to such a degree that it appears

unlikely that they will be able to provide a suitable home for the child at an

early date. The efforts of the department or agency to assist a parent or

guardian in establishing a suitable home for the child may be found to be

reasonable if such efforts exceed the efforts of the parent or guardian

toward the same goal, when the parent or guardian is aware that the child is

in the custody of the department[.]

As this Court has previously explained:

A “suitable home” means more than adequate “physical space.” In re

A.D.A., 84 S.W.3d 592, 599 (Tenn. Ct. App. 2002). “[A] home may be

rendered unsafe and unsuitable by the conduct of its occupants.” In re

Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at *18

(Tenn. Ct. App. June 16, 2011).

In re Kayla B., No. E2016-01192-COA-R3-PT, 2017 WL 438622, at *6 (Tenn. Ct. App.

Feb. 1, 2017).

In its final judgment, the trial court enunciated specific findings of fact regarding

this statutory ground as follows:

3) The Court finds that the child was previously removed from the home of

the Respondents by Order of this Honorable Court and placed into the

protective custody of the State of Tennessee, Department of Children’s

Services.

4) The child was removed from the home of the Respondents and into DCS

custody on October 8, 2013. The four (4) months immediately following

the removal of the child from the home were from October 8, 2013 to

February 8, 2014.

5) The Court finds that, during the four (4) months immediately following

the removal from the home, and thereafter, DCS made reasonable efforts to

assist the family in providing a suitable home for the child, to wit:

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a. The Court finds that, shortly after the removal of the child from

the home of the Respondents, a Child and Family Team Meeting

was held. The purpose of this meeting was to see if there were any

viable relative resources who could serve as placement for the child.

However, no relative resources could be located. At this meeting,

the Department discussed with the parents the reasons that the child

was removed into foster care, including physical abuse, mental

health concerns, domestic violence, and substance abuse.

b. The Court finds that there have been several case managers that

worked with this family. The Department’s case manager was Ms.

Jacki McCartt. Ms. McCartt prepared a permanency plan for review

and ratification by the Court.

c. During the four (4) months following removal, Ms. McCartt

requested a parenting assessment of the parents. However, this

assessment was not completed due to the father’s refusal to

cooperate with services. [Father] was not receptive to any of the

services that DCS attempted to offer him during the first four (4)

months following removal. This prohibited the parenting assessment

from being completed.

d. During the four (4) months following removal, Ms. McCartt

attempted to help [Father] complete a psychological assessment and

an alcohol and drug assessment. DCS also attempted to put in-home

services into the parents’ home.

e. During the four (4) months following removal, DCS encouraged

the parents to participate in the child’s mental health counseling.

DCS also met with the parents and set up meetings with them.

Additionally, Ms. McCartt notified the parents of court hearings and

meetings during the first four (4) months that the child was in DCS

custody for foster care.

f. DCS ensured that the child attended weekly case management

appointments. DCS also facilitated visitations between the parents

and the child. These visitations often took place at the Respondents’

home. During these visits, DCS attempted to assist the Respondents

in developing appropriate parenting techniques. The Respondents

agreed to participate in the child’s case management appointments

twice a month. The Court notes that these case management

appointments were weekly, but that the parents agreed to attend two

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(2) times per month. The Court finds that the Respondents did

attend the first few case management sessions. However, thereafter,

in February of 2014, [Father] stated that he would not attend any

further family therapy. The Court further finds that, in fact, [Father]

did not resume attending these therapy sessions until six (6) or seven

(7) months later. Despite the Respondents’ refusal to attend these

sessions, DCS continued to keep the parents apprised of the dates,

times, and locations, of the child’s therapy sessions.

The Court finds that all of the efforts by the Department were reasonable

and related to remedying the conditions that brought about removal so that

the matter would not progress to a termination of the parents’ parental

rights. The Court further finds that the Department was reasonable in its

efforts to encourage the parents to participate in the services that were

being offered to them.

6) The Court finds that there is clear and convincing evidence that the

parents made no efforts to provide a suitable home for the minor child

during the four months following removal, to wit:

a. During the four (4) months following removal, [Father] refused to

allow services to come into the home.

b. As to [Mother], she was living in the home with [Father] during

the four (4) months following removal. [Mother] could have allowed

services to come into the home, and those services were made

available to her. The Court finds that [Mother] could have been

given assistance by DCS and other service providers. However,

[Mother] never expressed a desire or willingness to accept these

services. Rather than availing herself of the services that were being

offered to her, she acquiesced to allowing no services to come into

the home. The Court also finds that DCS was even willing to offer

her services separate and apart from those being offered to [Father].

She could have completed the parenting assessment and parenting

education, but she did not.

c. Due to concerns in the home, during the four (4) months

following removal, the child’s visitation remained supervised. The

Court notes that, to date, the child’s visitations with her parents have

yet to progress to unsupervised contact. The Court finds that the

child has been in DCS custody for over two (2) years without any

progress towards moving towards unsupervised visitation.

- 25 -

d. The Court finds that [Father] made no changes in his life during

the four (4) months following removal. He continued to have

unaddressed substance abuse and alcohol dependency issues. There

were ongoing concerns with his parenting. These issues led to the

removal of the child from the home and, by [Father’s] refusal to

allow services in the home, they still continued during the four (4)

months following removal.

e. As to [Mother], she continued to have ongoing mental health

issues during the four (4) months following removal.

7) The Court finds that the [Mother’s and Father’s] failure to make even

minimal efforts to improve their home and personal condition demonstrates

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.

8) DCS has proven, by clear and convincing evidence, the ground of

abandonment by failure to provide a suitable home against [Mother] and

[Father].

Upon careful and thorough review, we determine that a preponderance of the evidence

supports the trial court’s finding by clear and convincing evidence that Mother and Father

had abandoned the Child by failing to provide a suitable home for the Child. We now

address Mother’s and Father’s respective issues regarding this statutory ground.

1. Mother

Mother contends that the trial court erred by finding that DCS made reasonable

efforts to reunite her with the Child within the four months following the Child’s removal

from the home. She also contends that the court erred in finding that she had not made

reasonable efforts to provide a suitable home within the four months following removal.

Mother concedes that DCS established by clear and convincing evidence that the Child

was removed by reason of DCS’s petition upon which the trial court adjudicated the

Child to be dependent and neglected. Moreover, she further concedes that the trial court

found that the circumstances of the Child’s situation prevented DCS from making

reasonable efforts prior to the Child’s removal from the home. Mother also does not

dispute that she was residing with Father and the Child at the time of the Child’s removal.

In her principal brief, Mother faults DCS in failing to address her mental health

issues and for the case managers’ failures to request a clinical parenting assessment,

which would have included a mental health component administered by a mental health

professional. However, the record reflects that DCS included in Mother’s permanency

plan the requirement that Mother complete a psychological assessment and follow all

- 26 -

recommendations, in addition to the parenting assessment completed. Ms. Tipton

testified that DCS will often request a general parenting assessment in combination with

a psychological assessment instead of a clinical parenting assessment and that the results

of the psychological assessment can substitute for that otherwise provided in the clinical

parenting assessment. During the ratification hearing for the June 2014 permanency plan,

Mother objected to the action step on the permanency plan requiring her to complete the

psychological evaluation. Although the trial court directed the requirement of the

psychological assessment be stricken from the plan, Mother was required to continue in

her case management with Frontier Health. Mother’s objection to the requirement of a

psychological assessment in the trial court during ratification of the permanency plan

with the later associated argument that DCS failed to request a parenting assessment with

a psychological component is unavailing. Furthermore, Frontier Health records reflect

that Mother was not compliant with her outpatient case management at WBHS.

Therefore, we determine this contention by Mother to be without merit.

Ms. McCartt testified concerning the efforts DCS made with the family during the

initial four months after the Child was removed from the parents’ home. DCS convened

an initial CFTM, during which DCS staff attempted to locate an appropriate family

placement. During that meeting, the specific reasons for the Child’s removal were

discussed with the parents. DCS requested a parenting assessment in November 2013,

which Mother did not complete until June 2014. Mother never completed the

recommendations from that assessment during the pendency of the case. DCS provided

the Child with mental health counseling, which the parents were encouraged to attend.

Ms. Shipley testified that the parents did attend two or three sessions before Father

informed her in February 2014 that he would not be attending therapy again. According

to Ms. Shipley, Mother also did not attend therapy after Father stopped attending. Ms.

Shipley testified that although Mother did attend visits with the child, she was not

engaged with the Child during those visits. As explained by Ms. McCartt, DCS offered

Mother services to assist in remedying the reasons the Child was removed from the

home, but Mother did not accept those services. Mother further asserts that she was

compliant with her mental health services; however, her records from WBHS reflect

otherwise.

Mother further argues that she was living with Father during the four months after

the removal and that there were no environmental concerns with the parents’ home.

However, a suitable home requires more than just an adequate physical place for the

Child to reside. See In re A.D.A., 84 S.W.3d at 599. Despite efforts by DCS, Mother and

Father had failed to address the reasons that the Child was removed from the home. Dr.

Lane testified that the reasons for removal had not been addressed by the parents and still

remained at the time of trial. Upon a thorough review of the record before this Court,

excluding Mother’s Woodridge hospital records, we conclude that the evidence

preponderates in favor of the trial court’s finding, by clear and convincing evidence, that

Mother abandoned the Child by failing to provide a suitable home.

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2. Father

Father argues that the trial court erred by determining that he had not made

reasonable efforts to reunite with the Child in the four months following removal of the

Child from the home. Having determined that the trial court did not err in finding that

DCS made reasonable efforts as to Mother, we take note here of those efforts, described

in the preceding section of this Opinion, that included Father. Additionally, DCS

requested a parenting assessment in November 2013, which Father did not complete until

June 2014. DCS also requested a psychological assessment and alcohol and drug

assessment for Father. Ms. Shipley articulated that Father did attend two or three

sessions before informing her in February 2014 that he would not be attending therapy

again. Father did not attend therapy until several months later. Father did, however,

participate in visits with the Child during this time.

According to Ms. McCartt, Father was offered services to assist him in remedying

the reasons the Child was removed from the home; however, Father declined these

services. According to Ms. Tipton, because Father refused to participate with service

providers, he could not adequately parent the Child in the foreseeable future. Upon a

thorough review of the record before this Court, we conclude that the evidence does not

preponderate against the trial court’s finding, by clear and convincing evidence, that

Father abandoned the Child by failing to provide a suitable home.

B. Substantial Noncompliance with Permanency Plans

The trial court also terminated Mother’s and Father’s parental rights on the

statutory ground that they had failed to substantially comply with the reasonable

responsibilities set out in their permanency plans. Tennessee Code Annotated § 36-1-

113(g)(2) provides as an additional ground for termination of parental rights:

(2) There has been substantial noncompliance by the parent or guardian

with the statement of responsibilities in a permanency plan pursuant to the

provisions of title 37, chapter 2, part 4[.]

In its final judgment, the trial court included specific findings of fact regarding this

statutory ground as follows:

10) The Court finds that the parents have been substantially noncompliant

with the tasks and responsibilities set out for them in the permanency plans.

11) The minor child’s first permanency plan contained a goal target date of

December 31, 2014. This permanency plan contained the following tasks

for the parents:

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a. Complete a parenting assessment and follow all

recommendations stemming therefrom;

b. Cooperate with in-home service providers and any

recommendations they may have;

c. Not allow the minor child around her grandfather, Robert G[.];

d. Participate in the minor child’s therapy and family therapy upon

request of the therapists;

e. Be open and honest during therapy sessions with the child;

f. Work on communications skills during family therapy;

g. Engage in visitations with the minor child;

h. As to [Father], complete an alcohol and drug assessment and

follow all recommendations stemming therefrom; and

i. As to [Father], complete a psychological assessment and follow

any recommendations stemming therefrom.

12) The Court finds that the parents have consistently demonstrated that

they can complete certain assessments, but then do not follow the

recommendations from the assessments.

13) In addition to preparing the permanency plan, DCS also went over the

tasks contained in the plan with the parents.

14) At the ratification hearing for the initial permanency plan, counsel for

the mother objected to the requirement that she complete a psychological

assessment in that she was engaged in mental health services through

Frontier Health. Based upon the mother’s objection, this task was removed

from the permanency plan as a task for the mother. However, she was

ordered to continue with her case management through Frontier Health.

15) A second permanency plan was prepared by DCS and ratified by the

Court on January 12, 2015. This second plan contained the same tasks that

were contained in the first permanency plan, but incorporated the

recommendations of the parents’ assessments.

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16) The Court finds that the parents have been substantially noncompliant

with the permanency plan, to wit:

BOTH PARENTS COMPLETED A PARENTING ASSESSMENT, BUT

DID NOT COMPLY WITH THE RECOMMENDATIONS THAT

STEMMED FROM IT.

17) As to [Father], from the outset of the case, he was not cooperative with

the parenting assessment process. During the narrative interview, he was

not cooperative with the parenting assessor. He was resistant to

questioning. He stated he had been involved with DCS thirteen (13)

different times. When asked to describe[] his personality, he stated that he

was “hot tempered sometimes when people keeps on messing with me.”

The father’s parenting assessment noted that he did not follow through on

directives to the child. The assessor also observed that there was minimal

interaction between the father and the child and no observed nurturing

behavior. The parenting assessment further noted that the father was at

high risk for inappropriate parenting. Additionally, he constantly

minimized the situation and stressors that led to the family’s circumstances.

[Father] also scored very low on the Slosson Intelligence Test, placing him

in the moderately mentally challenged range.

18) Based upon the parenting assessment, the following recommendations

were made for [Father]: (1) Intensive parenting education and (2) family

counseling.

19) The Court finds that [Mother] was more cooperative with the parenting

assessment than was her husband. The parenting assessment noted that

[Mother] had been to Woodridge Psychiatric Hospital “two (2) or three (3)

different times” in 2014. She was never engaged and was observed to be

extremely passive in her parenting of the child. She was distant, exhibited

no nurturing behavior and demonstrated minimal interaction or interest in

the visit with the child. The mother did not display any warmth or

nurturing behavior. She basically seemed to be disconnected during the

visitations with the child. She scored at a high risk to engage in

inappropriate parenting. She was observed to be very self-focused and was

more focused on herself than on the child. The mother also scored very

low on the Slosson Intelligence Scale, placing her in the moderately

mentally challenged range of intelligence.

20) The mother’s parenting assessment contained the following

recommendations: (1) intensive parenting education; (2) family

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counseling; and (3) family support services (if the child were to return

home).

21) The Court finds that both parents were noncompliant with the

recommendations set out for them in the parenting assessment.

22) The parents were to cooperate with in-home services to address the

concerns noted in the parenting assessment. They did not, and would not,

cooperate with these services. The parents were also to cooperate with

parenting education. They did not, and would not, cooperate with these

services either.

23) The Court finds that Families Free provided parenting education to the

family at different points in the progression of the case. The Court finds

that the Respondents would cancel many of these therapy sessions, to the

point that, out of thirty-four (34) possible appointments, they cancelled

twenty-one (21) of them.

24) The Court finds that, after Families Free was contacted to work with

the family, the father was very upset that Families Free had been assigned

to the case. In November of 2014, [Father] reported that he had already

done everything he was told to do before and that he did not understand

why he had to “do all this s*** again.” On another home visit by Families

Free, [Father] stated that it was not a good idea for Families Free to come to

the family home on that date in that [Mother] had “started talking out of her

head again.”

25) In December of 2014, Families Free again went to the [parents’] home

to work on parenting education, to no avail.

26) In January of 2015, Families Free again attempted to meet with the

family to work on parenting education. However, time and time again, the

parents continued to cancel these appointments.

27) On January 28, 2015, Families Free met with [Father]. When the

Families Free worker arrived at the home, the father began to scream, “You

f****** people. Do whatever the h*** you want to do.” The father began

yelling loudly about the child’s case manager, Jacki McCartt, who was

trying to assist him by providing services. He proceeded to curse and

threaten Ms. McCartt, DCS, the Court, and the entire legal proceeding. He

stated, “I’m going to go up there and blow up that g****** DCS building

and kill that little b****, Jacki.”[] He also exclaimed, “F*** yeah and that

g****** Judge, too.” The Court finds that these were the situations that

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DCS and in-home providers had to deal with when attempting to help the

parents. The Court finds that this was the same situation from which the

child was removed, and that she was in a condition of want and suffering at

the time of removal by this Honorable Court.

28) By the end of January 2015, it was difficult to identify any strengths

for the family. They continued to have outbursts of anger. They continued

to refuse to accept any services into the home. Due to his refusal to accept

services, Families Free was unable to engage [Father] in the parenting

education curriculum. As to [Mother], Families Free was also unable to

provide her with parenting education because of her significant mental

health issues. The Court finds that the mother acquiesced to all that was

going on in the home and did nothing to remove herself from that situation.

29) From February 2015 to July 2015, Families Free services were not

offered because the parents were not willing to accept them into their home.

The Court finds that [Father] continued to refuse any services into the home

during that time. However, despite these issues, DCS continued to attempt

to provide help and services to the family, but was unable to engage the

family during that time.

30) The Court is concerned with the family situation, in that, when most

people come into the type of situation that leads to a child’s removal from

their home, they can normally make progress in addressing issues of

concern in four (4) to six (6) months. The Court also finds that Ms. Tipton

testified that this case is atypical from other cases, in that, in her

experience, most parents are able to successfully complete a parenting

education curriculum in four (4) to six (6) months. Here, as of the date of

the filing of the petition, Families Free and DCS had worked a total of

fourteen (14) months with this family to assist them in remedying the issues

that led to removal. Yet, despite these efforts, the parents have not made

any substantial progress in completing any of the tasks set out for them in

the permanency plan. The Court finds that Families Free attempted to

provide the services that could have helped the parents in addressing the

issues of concern in their lives so that the child could return home. Yet,

despite these efforts, the parents cancelled twenty-one (21) of the possible

thirty-four (34) appointments that were offered to them by Families Free.

THE PARENTS WERE UNABLE TO ADDRESS THE ISSUES THAT

LED TO THE CHILD’S REMOVAL IN FAMILY THERAPY.

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31) Both parents were ordered to attend the minor child’s therapy

appointments. While they attended some of the family counseling sessions,

they did not complete this therapy regimen.

32) The Court finds that the goals of family therapy were to address (1) the

family’s beliefs around the alleged sexual abuse and any safety issues

associated therewith; (2) emotional management; and (3) the child’s role in

the family.

33) At the time of removal, the child’s role in the family had become

“parentified,” such that she was responsible for the care of her parents and,

in particular, her mother.

34) Due to some erosion of the mother’s own mental health needs, the

child’s therapist requested that the mother discontinue participation in

family therapy. After the mother was asked to leave therapy, the father

continued to participate “intermittently” with family therapy. However,

this therapy was of limited benefit due to [Father’s] own choices and

inaction.

35) The Court finds that both parents have been unable to contribute to the

child’s wellbeing. The Court does note that, a year later, there has been a

slight improvement in the father’s interactions and communication with the

child. However, the Court also finds that, despite this slight improvement,

mental health providers and other professionals are unable to recommend

that the child return home or begin unsupervised visitations with her

parents.

36) [Father] himself testified that there were many things that he had not

learned about in therapy with the child, including emotional management

and the child’s role in the family.

WHILE THE PARENTS DID PARTICIPATE IN VISITATION WITH

THE CHILD, THESE VISITS WERE OFTEN PROBLEMATIC AND

PLAGUED WITH DYSFUNCTION.

37) The Court finds that visitation was ordered between the parents and the

minor child. The Court finds that there were many problems during these

visitations.

38) The Court finds that, at times, the visitations between the parents and

the child went well. However, at other times, issues of dysfunction arose.

Specifically, the Court finds that, on several instances, [Father] appeared at

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visitations visibly intoxicated. Specifically, when workers and the child

would arrive at the home, [Father] would become upset and began cursing.

He would yell and use a vulgar hand gesture towards the minor child and

the workers who were present at that time. The Court finds that these

occurrences were traumatic for the child, in that she had to see her father in

this condition.

39) The Court finds that, during a visitation with the child in May of 2014,

[Father] appeared angry, loud, and aggressive. He began screaming at the

child and exclaimed, “Fine then, you can just stay in foster care.” He also

began using inappropriate language, profanity, and used inappropriate hand

gestures towards the visitation supervisor, Ms. Shipley, and the minor child.

40) During her parenting time with the child, [Mother] was not an active

participant in visitations. She barely spoke to the child during the

visitations and hardly interacted with the child at all. Further, she often was

not present at visitations due to her being hospitalized at Woodridge

Psychiatric Hospital.

41) The Court finds that, at times, the visitations between the parents and

the minor child were a detriment to the child.

42) The Court finds that [Father] discussed inappropriate topics with the

child during visitations. Specifically, the Court finds that, case workers

testified that they overheard the father tell the child not to cooperate with

“the State” and not to take her prescribed psychotropic medications. All of

these issues arose when [Father] was supposed to be having appropriate

visitation and interaction with the child. The Court finds that this is

indicative of how [Father] acts and how the home situation continues to

deteriorate.

43) The Court finds that, as to [Mother], during the visitations, she would

often sleep through much of the visit. When she was awake, she did not

interact with the child at all. The Court also notes that Ms. Shipley testified

that she never observed the mother interact with, or try to parent, the minor

child during visitations.

44) The Court finds that [Father] continued to have anger issues that were

not addressed or remedied. These anger issues culminated in a visitation at

which he threw a basketball at the child’s in-home worker.

45) The Court finds that, on September 16, 2015, [Father] brought

[Mother] to a visitation at the park and appeared to be impaired. His

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speech was slurred. He was sweating. His face was red and he was very

loud.

46) The Court finds that all of these issues complicated the situation and

made visitation unsuccessful between the child and her parents.

THE FATHER COMPLETED AN ALCOHOL AND DRUG

ASSESSMENT BUT DID NOT COMPLY WITH THE

RECOMMENDATIONS STEMMING THEREFROM.

47) The Court finds that [Father] testified that he had completed an alcohol

and drug assessment. However, he did not comply with the

recommendations from this assessment. Specifically, the Court finds that

[Father] testified that he had completed a few Alcoholics Anonymous (AA)

meetings, and that he attended these meetings approximately once per

month. However, the Court finds that, per the recommendations of the

assessment, [Father] should have been attending these meetings four (4)

times per month. Further, the Court finds that [Father] testified he did not

know the first step of the twelve (12) step program. He also does not have

an AA sponsor.

48) The Court finds that, with the exception of attending some AA

meetings, [Father] did not complete any of the recommendations of his

alcohol and drug assessment. The Court finds that this again demonstrates

his substantial noncompliance with the permanency plan.

THE MOTHER WAS NONCOMPLIANT WITH CASE

MANAGEMENT.

49) The Court finds that the mother was ordered to comply with her case

management through Frontier Health. . . .

THE PARENTS HAVE BEEN SUBSTANTIALLY NONCOMPLIANT

WITH THE TASKS SET OUT FOR THEM IN THE PERMANENCY

PLANS.

50) The Court finds, by clear and convincing evidence, that, as a result of

the actions by the Respondents, they have never been able to move beyond

the completion of their initial assessments to address the underlying issues

of dependency and neglect that exist in their lives as to this child. In fact,

since the child’s removal over two years ago, they have never been able to

progress to unsupervised visitation with her.

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51) DCS has proven, by clear and convincing evidence, the ground of

substantial noncompliance against [Father] and [Mother].

(Emphasis in original.) Upon careful review, we determine that a preponderance of the

evidence supports the trial court’s findings that Mother and Father failed to substantially

comply with the reasonable responsibilities of their permanency plans. We will

separately address Mother’s and Father’s respective issues regarding this statutory

ground.

1. Mother

Mother contends that the trial court failed to specifically find that the permanency

plan requirements were reasonable and related to remedying the conditions necessitating

foster care. However, following the June 2014 permanency plan ratification, the trial

court entered an order finding that “the tasks in the Permanency Plan are reasonable and

related to achieving permanency for this child and towards remedying the reasons that the

child requires foster care.” After the January 2015 permanency plan ratification, the trial

court subsequently entered an order on January 27, 2015, finding that “the tasks in the

Permanency Plan are reasonable and related to achieving permanency for this child and

towards remedying the reasons that the child requires foster care.” As the trial court

clearly did make findings that the permanency plans were reasonable and related to

remedying the reasons why the Child requires foster care, we determine Mother’s

argument to be without merit.

Alternatively, Mother argues that she “completed enough of the tasks required of

her in the permanency plan” so as to preclude a finding that she was substantially

noncompliant with the permanency plans. Mother was required to complete a parenting

assessment and follow all recommendations, cooperate with in-home services, allow no

contact between the Child and the paternal grandfather, participate in the Child’s therapy

sessions, be open and honest during therapy sessions, develop communications skills

during therapy sessions, and engage in visits with the Child.

Mother did complete her parenting assessment; however, she failed to follow

through with the recommendations from the assessment. The parenting assessment

recommended that Mother complete intensive parenting education. Ms. Tipton related

that out of approximately thirty-two parenting education sessions offered, the parents had

cancelled twenty-one of them. Ms. Rogers’s testimony established that Mother was not

engaged during the visits with the Child but would instead sleep through many of the

visits. Mother attended two or three of the Child’s therapy sessions, but stopped

attending those sessions in February 2014. Mother failed to attend the sessions until

several months had passed. Upon our careful review of the record, excluding Mother’s

Woodridge hospital records, we conclude that the evidence does not preponderate against

- 36 -

the trial court’s finding by clear and convincing evidence that Mother failed to

substantially comply with the reasonable requirements of the permanency plans.

2. Father

Father similarly contends that the trial court failed to make a finding that the

requirements in the permanency plans were reasonable and related to remedying the

conditions that necessitated foster care. Having previously determined that the trial court

explicitly found the permanency plans to be reasonable and related to remedying the

reasons why the Child required foster care, we determine Father’s argument in this regard

to be without merit.

Alternatively, Father argues that he “completed enough of the tasks required of

him in the permanency plan” so as to preclude a finding that he was substantially

noncompliant. Father was required to complete a parenting assessment and follow all

recommendations, cooperate with in-home services, allow no contact between the Child

and the paternal grandfather, participate in the Child’s therapy sessions, be open and

honest during therapy sessions, develop communications skills during therapy sessions,

engage in visits with the Child, complete an alcohol and drug assessment and follow all

recommendations, and complete a psychological assessment and follow all

recommendations.

The record establishes that Father was engaged in visits with the Child. Father did

complete his parenting assessment; however, he failed to follow through with the

assessment recommendations. The assessor recommended that Father complete intensive

parenting education. As previously noted, the parents cancelled twenty-one out of

approximately thirty-two parenting education sessions offered. Father attended two or

three of the Child’s therapy sessions but stopped attending in February 2014. Following

a court hearing in February 2014, Father informed Ms. Shipley that he would not attend

any more therapy sessions for the Child. As indicated, Father did not begin attending

those sessions again until several months had passed. Although Father completed his

psychological assessment, he did not complete the recommendations from that

assessment. Father attended an intake and initial therapy session with Frontier Health but

declined any further treatment. Father did complete his alcohol and drug assessment, but

did not complete the recommendations of that assessment. Father attended AA meetings

approximately twice per month but did not attend weekly as recommended. The trial

court found and the evidence supports that Father also did not fully participate in the

program. Significantly, Father did not have a sponsor and, when questioned, was unable

to describe the first step of the AA twelve-step program. Upon our careful review of the

record, we conclude that the evidence does not preponderate against the trial court’s

finding by clear and convincing evidence that Father failed to substantially comply with

the requirements of the permanency plans.

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C. Persistence of Conditions

The trial court also terminated Mother’s and Father’s parental rights on the

statutory ground that the conditions leading to the Child’s removal from the parents’

home still persisted. On appeal, Father and Mother each respectively argue that the trial

court erred by determining that the conditions that led to removal of the Child from the

home still existed. Father also argues that “the trial court erred by finding that the

Child’s chances of being integrated into a permanent home were diminished by [Father’s]

conduct and not the lack of a permanent placement on the part of DCS.”

Tennessee Code Annotated § 36-1-113(g)(3) provides as an additional ground for

termination of parental rights:

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 or parents or the guardian or guardians, 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 or parents or the guardian or guardians

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[.]

Although neither party raises the issue of whether the Child had been removed from the

parents’ home by court order for a period of at least six months, due to the fundamental

constitutional interest involved, we shall address this issue. See In re Carrington H., 483

S.W.3d at 522-24.

In the case of In re Audrey S., 182 S.W.3d 838, 875 (Tenn. Ct. App. 2005), this

Court determined that a temporary custody order resulting from a preliminary hearing

was not sufficient to satisfy the requirement that the child had been removed from the

home of the parent by order of a court for six months. The Audrey S. Court determined:

- 38 -

The March 28, 1996 temporary custody order resulted from a

preliminary hearing, not an adjudicatory hearing, and the restraining order

was designed merely to preserve the status quo in advance of the

preliminary hearing. The temporary custody order contains an implicit

judicial finding of probable cause that Audrey S. was dependent, neglected,

or abused. It does not contain a finding, either explicit or implicit, that

Audrey S. was in fact dependent, neglected, or abused. The juvenile court

never held an adjudicatory hearing on [the grandmother’s] petition for

temporary custody of Audrey S., and there is no other court order in the

record prior to the filing of the joint termination petition that reflects a

finding of dependency, neglect, or abuse with respect to Audrey S.

Accordingly, the juvenile court erred in relying on Tenn. Code Ann. § 36-

1-113(g)(3) as a ground for terminating [the mother’s] parental rights to

Audrey S.

Id.

In the case at bar, the Child was removed from the home of the parents on October

8, 2013, by operation of an “Ex Parte Protective Custody Order.” In the ex parte order,

the trial court stated: “There is probable cause to believe that [the Child] is dependent

and neglected pursuant to Tenn. Code Ann. § 37-1-102(b)(12).” A preliminary hearing

was scheduled for October 10, 2013, but was continued until October 28, 2013, to allow

the parents to be appointed counsel. Upon conclusion of the adjudicatory hearing on

May 29, 2014, the trial court found the Child to be dependent and neglected in the care of

her parents. An order reflecting this finding was entered by the trial court on June 11,

2014. Following the October 8, 2013 removal order but prior to the adjudicatory hearing

order entered on June 11, 2014, no court order appears of record evincing a finding by the

trial court of dependency, neglect, or abuse with respect to the Child. DCS filed a

petition to terminate the parental rights of the parents on November 19, 2014. Because

six months had not elapsed between the date of the adjudicatory hearing order and the

filing of the termination petition, we must reverse the trial court’s determination

regarding the statutory ground of persistence of conditions.

D. Mental Incompetence

The trial court also terminated Mother’s parental rights on the statutory ground

that she was mentally incompetent to adequately provide for the further care of the Child.

Mother contends that the trial court erred by terminating her parental rights based upon

this statutory ground. Tennessee Code Annotated § 36-1-113(g)(8) provides regarding

this additional ground for termination:

(8)(A) The chancery and circuit courts shall have jurisdiction in an

adoption proceeding, and the chancery, circuit, and juvenile courts shall

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have jurisdiction in a separate, independent proceeding conducted prior to

an adoption proceeding to determine if the parent or guardian is mentally

incompetent to provide for the further care and supervision of the child, and

to terminate that parent’s or guardian’s rights to the child;

(B) The court may terminate the parental or guardianship rights of that

person if it determines on the basis of clear and convincing evidence that:

(i) The parent or guardian of the child is incompetent to adequately

provide for the further care and supervision of the child because the

parent’s or guardian’s mental condition is presently so impaired and

is so likely to remain so that it is unlikely that the parent or guardian

will be able to assume or resume the care of and responsibility for

the child in the near future; and

(ii) That termination of parental or guardian rights is in the best

interest of the child;

(C) In the circumstances described under subdivisions (8)(A) and (B), no

willfulness in the failure of the parent or guardian to establish the parent’s

or guardian’s ability to care for the child need be shown to establish that the

parental or guardianship rights should be terminated[.]

The General Assembly’s exclusion of willfulness from this statutory ground “serves to

protect children from harm caused by a parent who is incapable of safely caring for

them.” See In re D.A.P., No. E2007-02567-COA-R3-PT, 2008 WL 2687569, at *5

(Tenn. Ct. App. July 9, 2008). If willfulness were required in order to terminate parental

rights for mental incompetence, “an obvious result . . . is to condemn a child, whose

parents are unfit to properly care for the child because of mental illness, to a life in serial

foster homes without any possibility of a stable, permanent home.” See State, Dep’t of

Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990).

This Court has rejected the argument that the ground of mental incompetence is

reserved only for parents who have “a condition for which ‘no amount of intervention can

assist’” and instead has affirmed the termination of parental rights for mental disorders

such as bipolar disorder, adjustment disorder with anxiety and depressed mood,

dependent personality disorder, and schizophrenia disorder. See id. at 337-39 (affirming

the termination of parental rights of a parent diagnosed with schizophrenic disorder on

the basis of mental incompetence, although the acts of the mentally disabled parent were

not willful); In re S.M.R., No. M2008-01221-COA-R3-PT, 2008 WL 4949236, at *6

(Tenn. Ct. App. Nov. 18, 2008) (affirming a termination of parental rights on the

statutory ground of mental incompetence when the parent was diagnosed with bipolar

disorder and personality disorder, not otherwise specified); Dep’t of Children’s Servs. v.

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M.R.N., No. M2006-01705-COA-R3-PT, 2007 WL 120038, at *10 (Tenn. Ct. App. Jan.

17, 2007) (affirming a termination of parental rights on the statutory ground of mental

incompetence based on a diagnosis of adjustment disorder with anxiety and depressed

mood, as well as dependent personality disorder). The parent’s mental condition,

however, must impair the parent to an extent that he or she cannot adequately provide for

the care and supervision of the child. See Tenn. Code Ann. § 36-1-113(g)(8)(B)(i).

In its final judgment, the trial court stated specific findings of fact regarding this

statutory ground as follows in relevant part:

65) The Court finds that there is clear and convincing evidence that

[Mother] is incompetent to provide adequately for the further care and

supervision of the child because her mental health is impaired and is so

likely to remain impaired to a level that she will probably not be able to

resume the care and responsibility in the near future.

66) The Court finds that Ms. Rogers testified that, on multiple occasions,

she has observed the mother speaking to individuals who were not in the

room. She has observed the mother talking to spaces in the home and

under the porch of the family home. [Mother] told Ms. Rogers that she sees

people and talks to people that Ms. Rogers was not seeing.

67) Dr. Lane testified that the mother’s parenting assessment noted that it

was questionable whether [Mother] would be able to parent the child.

68) The Court finds that the mother’s parenting style is passive,

disconnected, and disengaged, at best.

69) The Court finds that, during visitation, the mother was very

disconnected and appeared to lack any warmth or nurturing towards the

child.

70) The Court finds, by clear and convincing evidence, that the mother’s

mental health has not improved. Specifically, the Court finds that Ms.

Tipton testified that, in her expert opinion, [Mother] is not going to be able

to parent the child in the future. The Court also finds that the mother is

unlikely to be able to parent this child in the future.

71) During the child’s family therapy sessions, the mother was observed . .

. in a state of active psychosis. She was hearing voices and was having

conversations with people who were not in the room. While in therapy, she

was picking, and eating, bugs that were on the couch. The minor child was

present when these episodes occurred.

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72) The Court finds that, when the minor child is with her mother, the

minor child is the caregiver.

73) Ms. Fletcher testified that, in her opinion, the mother does not seem to

have the ability to parent the child.

74) Ms. Fletcher testified that, in her opinion, the mother cannot parent the

child.

75) The Court finds, by clear and convincing evidence, that the mother’s

current condition presently impairs the mother to the point that it is unlikely

that she will be able to resume being a parent or have the capability to

parent the child.

***

89) The Court finds that the mother’s lack of compliance was an ongoing

issue in this matter. The Court finds that this lack of compliance with the

directives of medical professionals has resulted in thirteen (13)

hospitalizations in a psychiatric facility.

90) DCS has proven, by clear and convincing evidence, the ground of

mental incompetence against Respondent [Mother].

Having determined that the trial court erred by admitting the Woodridge hospital records

into evidence at trial, we have omitted the court’s findings as to those records here and

cannot consider them in reviewing the court’s conclusions. We determine, however, that

the trial court’s error in admitting Mother’s hospital records into evidence was harmless

because the remaining evidence supports by a clear and convincing standard the trial

court’s finding that Mother is mentally incompetent to adequately provide for the further

care of the Child.

Numerous witnesses observed Mother appearing to speak to people who were not

present. Ms. Rogers observed Mother on multiple occasions speaking to nonexistent

persons in the home or under the porch. Frontier Health records establish that Mother

reported to the WBHS case manager multiple times that she was committed to

Woodridge hospital after observing people and hearing voices that were not actually

present. On one occasion, Mother described to the Families Free case manager seeing

and hearing “bad men.” Although Father blamed the effects of Mother’s medicine, he

also testified that he had observed Mother speaking to people who were not present. In

family therapy, Ms. Fletcher observed Mother speak to individuals who were not in the

room and interact with nonexistent objects.

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Additionally, Frontier Health records reflect that at times Mother had reported

experiencing homicidal ideations toward her husband, suicidal ideations, increased

depression, and both visual and auditory hallucinations. Mother’s Frontier Health

records also show that Mother failed to comply with her mental health appointments at

WBHS. The records indicate multiple admissions to Woodridge, which resulted in

Woodridge scheduling mental health appointments for Mother with WBHS following her

discharge. Each time, although Mother would agree to participate in case management

after her release from the hospital, she failed to appear for her mental health

appointments with WBHS.

Ms. Fletcher explained that a role reversal between Mother and the Child occurred

such that when Mother was present, the Child was the caregiver for Mother. This created

an unhealthy situation for the Child. Although Ms. Fletcher recognized a bond between

the Child and Mother, she opined that Mother did not appear to have the ability to parent

the Child. Ms. Tipton also indicated her concerns that Mother would be unable to safely

parent the Child in the foreseeable future, due in large part to her mental health issues.

The evidence supports the trial court’s finding that Mother’s parenting style was

“passive, disconnected, and disengaged, at best.” Ms. Rogers testified that Mother did

not engage with the Child and would sometimes sleep during the visits. Additionally, Dr.

Lane indicated that Mother did not appear to be invested in the Child or her well-being.

According to Dr. Lane, Mother did not display a warmth or nurturing behavior toward the

Child and seemed disconnected from the visit. The relationship concerned Dr. Lane

because Mother was vastly focused on herself despite the Child’s absence from the

parents’ home. According to Dr. Lane, Mother might not be able to adequately parent the

Child.

Following a thorough review of the record and excluding Mother’s Woodridge

hospital records, we conclude that the evidence does not preponderate against the trial

court’s finding by clear and convincing evidence that Mother was mentally incompetent

to adequately provide for the care and supervision of the Child. Mother’s mental

condition is presently and is likely to remain so impaired that it is unlikely Mother will be

able to assume care of and responsibility for the Child in the near future. Therefore, we

affirm the termination of Mother’s parental rights based on the statutory ground of mental

incompetence.

VI. Best Interest of the Child

When a parent has been found to be unfit by establishment of at least one statutory

ground for termination of parental rights, as here, the interests of parent and child

diverge, and the focus shifts to what is in the child’s best interest. See In re Audrey S.,

182 S.W.3d 838, 877 (Tenn. Ct. App. 2005); see also In re Carrington H., 483 S.W.3d at

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507, 523 (Tenn. 2016) (“‘The best interests analysis is separate from and subsequent to

the determination that there is clear and convincing evidence of grounds for

termination.’”) (quoting In re Angela E., 303 S.W.3d 240, 254 (Tenn. 2010)). Tennessee

Code Annotated § 36-1-113(i) (Supp. 2016) provides a list of factors the trial court is to

consider when determining if termination of parental rights is in a child’s best interest.

This list is not exhaustive, and the statute does not require the court to find the existence

of every factor before concluding that termination is in a child’s best interest. See In re

Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy

and weight to be given each factor depends on the unique facts of each case.”).

Furthermore, the best interest of a child must be determined from the child’s perspective

and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

Tennessee Code Annotated § 36-1-113(i) lists the following factors for

consideration:

(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

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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.

As this Court has explained:

Ascertaining a child’s best interests does not call for a rote examination of

each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a

determination of whether the sum of the factors tips in favor of or against

the parent. The relevancy and weight to be given each factor depends on

the unique facts of each case. Thus, depending upon the circumstances of a

particular child and a particular parent, the consideration of one factor may

very well dictate the outcome of the analysis.

In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005) (citations omitted).

The trial court analyzed the best interest factors, specifying in its final judgment

the following findings of fact in relevant part:

THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(1) ARE APPLICABLE TO THIS MATTER.

92) It is in the best interest of the minor child for termination to be granted

as to [Mother and Father] because they have not made changes in their

conduct or circumstances that would make it safe for the child to go home.

Ms. McCartt testified that the parents had made no changes such that the

child could go home. These conditions have continued throughout the

proceedings and continue to be an issue in the home at this time. The Court

finds that neither parent has remedied their condition to such an extent that

the child can return home to live with them.

93) Dr. Lane testified that, in her expert opinion, the parents’ investment in

this child and their ability to connect with her and build a meaningful

relationship should have happened by the time she was thirteen (13) years

of age. This did not happen.

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94) Ms. Tipton testified that, in her expert opinion, and due to the ongoing

mental health issues, relational challenges, and lack of commitment to the

services that are being offered to them, the parents will likely be unable to

safely and effective[ly] parent this child in the foreseeable future. As to

[Father], Ms. Tipton also testified that the father has been uncooperative

with Families Free services. The mother was also unwilling and/or unable

to work with services.

95) The Court finds that Ms. Fletcher testified that, due to concerns for the

child’s safety and wellbeing, she is unable to support even unsupervised

visitations between the parents and the child at this time. In fact, Ms.

Fletcher testified that the child’s progress would erode if she were placed

back in the family home.

96) In sum, the Court finds that this factor weighs in favor of termination

against the parents.

THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(2) ARE APPLICABLE TO THIS MATTER.

97) It is in the child’s best interests for termination to be granted as to

[Mother and Father], because they have not made lasting changes in their

lifestyle or conduct after reasonable efforts by the state to help, so that

lasting change does not appear possible. The Court finds that, despite all of

the State’s efforts to help them, the parents have not made any lasting

change in their lives or conduct.

98) The Court finds that DCS has made reasonable efforts to assist

[Mother and Father] in addressing the issues that led to removal. The Court

specifically finds that DCS funded a parenting assessment for [Mother and

Father], at no cost to themselves. After these assessments were completed,

DCS attempted to assist the [Mother and Father] in complying with the

recommendations set out therein. Further, DCS placed in-home services

into the parents’ home to assist them with parenting education. DCS

selected in-home parenting education for the parents through Families Free

because the parents indicated that transportation was an issue for them. All

of these efforts were to no avail.

99) In sum, the Court finds that this factor weighs in favor of termination

and against the parents.

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THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(3) ARE NOT APPLICABLE TO THIS MATTER.

100) The Court finds that the issue of whether the parents have participated

in regular visitation with the child does not weigh in favor of, or against,

termination. Specifically, the Court finds that, as to the mother, she has

been ordered to have no visitation with the child. As to the father,

sometimes his visitations with the child go well. At other times, the visits

are terrible and horrendous.

THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(4) ARE APPLICABLE TO THIS MATTER.

101) It is in the child’s best interests for termination to be granted as to the

Respondents, because there is no meaningful parent/child relationship

between themselves and the child.

102) The Court finds that the minor child often acts as the parent in this

case. There is not a great deal of interaction between [Mother] and the

child during visitation.

103) The Court finds that the parents have not demonstrated an interest in

the welfare of the child. The parents have demonstrated a complete lack of

empathy for the child.

104) Ms. Fletcher testified that the interactions between the child and her

father have recently improved. However, Ms. Fletcher also noted that

therapy is an isolated setting and that she is not sure that this change would

[be] maintained in the home setting. Ms. Fletcher also noted that the

mother’s absence from therapy has helped [the Child’s] relationship with

her father to some extent.

105) The Court finds that the parents are still married and that, when they

are together, they make the home situation and environment worse. When

the parents are apart, and when the father is in a therapeutic setting, the

situation is improved.

106) The Court finds that there is some form of attachment between the

parents and the minor child. However, Ms. Fletcher noted that, the family

roles and system in the [Mother’s and Father’s] home has made it an

unhealthy situation for the child. The Court finds that, while there is an

emotional connection between the child and the parents, this does not mean

that it is an appropriate parenting situation.

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107) In sum, the Court finds that there is no meaningful relationship

between the child and her parents. Thus, the Court finds that this factor

weighs in favor of termination and against the parents.

THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(5) ARE APPLICABLE TO THIS MATTER.

108) It is in the child’s best interests for termination to be granted as to

[Mother and Father], because changing caregivers at this stage of the

child’s life would have a detrimental effect on her.

109) Ms. McCartt testified that, based upon the minor child’s therapeutic

needs, she was concerned that changing her caregivers would negatively

impact the child.

110) Ms. McCartt testified that the child is doing very well in her current

foster home. She has been in this foster home for at least one (1) year.

111) At the time of removal, the child had some significant behavioral

problems. Ms. McCartt testified that these behaviors have improved since

she came into DCS custody.

112) Ms. Rogers testified that the minor child is doing well in her current

foster home. She is doing well in school.

113) Ms. Fletcher testified that she began seeing the minor child once a

week for therapy in December 2013. She has met with the child

approximately seventy-six (76) times since she entered DCS custody.

Since the child entered therapy, she is more able to verbalize her thoughts

and feelings. She can process stressful situations much better than she

could when she entered therapy. She has improved social skills. She has

improved self-esteem. She is involved in ROTC. She is more confident.

114) In sum, the Court finds that this fa[ctor] weighs in favor of

termination and against the parents.

THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(6) ARE APPLICABLE TO THIS MATTER.

115) It is in the child’s best interests for termination to be granted as to

[Mother and Father], because they have abused and neglected the minor

child at issue in this cause.

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116) The Court finds that, on May 29, 2014, the child was found to be a

dependent and neglected child. At this hearing, the Court found that the

child was in a condition of suffering in the care of her parents. At that time,

she suffered from the trauma of sexual abuse. She was a very depressed

and fragile child. She also struggled with self-care.

117) At the adjudicatory hearing, Ms. Fletcher testified that the child’s

behaviors were symptoms and coping mechanisms of broader issues of

abuse and neglect that she had suffered in the parents’ home.

118) Ms. Fletcher testified that, at the time of removal, the child presented

with symptoms that were consistent with post-traumatic stress disorder.

119) In sum, the Court finds that this factor weighs in favor of termination

and against the parents.

THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(7) ARE APPLICABLE TO THIS MATTER.

120) It is in the child’s best interest for termination to be granted as to

[Father] because he abuses alcohol, rendering him consistently unable to

care for the child in a safe and stable manner.

121) The Court finds that alcohol has been a big problem in this case. The

Court finds that the father’s issues of substance abuse are ongoing. He

continues to abuse alcohol which negatively impacts his parenting of the

child. Further, he continues to abuse alcohol even when the child is

present, such that it is unsafe for her to be around him. This compromises

the safety and overall propriety of the home environment.

122) Ms. McCartt testified that she has concerns that [Father] continues to

abuse alcohol. Further, there have been several times when the father

spoke with Families Free workers at which he sounded impaired on the

telephone.

123) In sum, the Court finds that this factor weighs in favor of termination

and against the parents in this cause.

THE BEST INTEREST FACTORS CONTAINED IN T.C.A. § 36-1-

113(i)(8) ARE APPLICABLE TO THIS MATTER.

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124) It is in the child’s best interests for termination to be granted as to

[Mother and Father], because their mental and emotional state would be

detrimental to the child and would prevent them from effectively parenting

the child.

***

126) As to [Father], he continues to have unaddressed anger management

issues, as evidenced by his numerous threats to DCS staff, service

providers, and the Court. There are also many concerns about marital

conflict in the family home as reflected in numerous records that have been

admitted in this cause.

127) The Court finds that this factor weighs in favor of termination and

against the parents.

The trial court therefore concluded that it was in the Child’s best interest to

terminate Mother’s and Father’s parental rights. Having determined that the trial court

erred by admitting the Woodridge hospital records into evidence at trial, we have omitted

the court’s findings as to those records here and cannot consider them in reviewing the

court’s conclusions. Upon careful review, we agree with the trial court’s conclusion that

it is in the best interest of the Child for Mother’s and Father’s parental rights to be

terminated. We will address the best interest analysis regarding each parent in turn.

A. Mother

Mother contends that termination of her parental rights is not in the best interest of

the Child. When analyzing best interest, the trial court considered each factor contained

within Tennessee Code Annotated §36-1-113(i) before determining that it was in the best

interest of the Child that Mother’s parental rights be terminated. The trial court found,

and the evidence supports, that DCS made reasonable efforts to assist Mother in

addressing the reasons why the Child was removed from the parents’ home. Despite

those efforts, Mother continued to struggle with her mental health issues as evinced by

testimony of several individuals who witnessed her behavior. The trial court found that

Mother’s mental and emotional state would be detrimental to the Child. Mother’s

medical records from Frontier Health also demonstrate that Mother consistently failed to

appear for scheduled mental health appointments. Additionally, Mother did not

cooperate with services offered to her.

Dr. Lane, testifying as an expert in child development and parenting assessments,

indicated that she was concerned because Mother did not appear to be invested in the

Child. Mother’s visitation was eventually ceased by the trial court in September 2015.

However, even when Mother attended visits with the Child, as Ms. Rogers explained,

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Mother did not engage with the Child and would sometimes sleep during the visits. The

trial court found that, while there existed some degree of attachment, there was not a

meaningful relationship between Mother and the Child.

Ms. Fletcher, an expert in child and family therapy, explained that a role reversal

between Mother and the Child existed such that when Mother was present, the Child

became the caregiver. According to Ms. Fletcher, this role reversal created an unhealthy

situation for the Child. Ms. Tipton, an expert in social work, also indicated her concerns

that the parents would be unable to safely parent the Child in the foreseeable future due to

mental health issues, relational challenges, and lack of commitment to services offered.

Significantly, the parents cancelled twenty-one of approximately thirty-two parenting

education sessions offered to them. Furthermore, Mother was unable to demonstrate the

parenting skills that Families Free was attempting to develop.

The evidence preponderates in favor of a determination that the Child was doing

very well in her foster home placement. The Child expressed her approval of her foster

home, explaining that her foster parents were “good to [her].” The Child further related

that she was doing excellent work in school at the time of trial. According to Ms.

Fletcher, the Child was in a “condition of suffering” when she first began attending

therapy. She opined that returning the Child to her parents could cause the Child to

“erode,” and the Child would be benefited by remaining in foster care. From a thorough

examination of the record before us, excluding Mother’s Woodridge hospital records, we

conclude that clear and convincing evidence exists that termination of Mother’s parental

rights was in the Child’s best interest.

B. Father

Father likewise contends that termination of his parental rights is not in the best

interest of the Child. We have noted that the trial court considered each factor contained

within Tennessee Code Annotated §36-1-113(i) before determining that it was in the best

interest of the Child that Father’s parental rights be terminated. The trial court found and

a preponderance of the evidence supports that DCS made reasonable efforts to assist

Father in addressing the reasons for the Child’s removal from the parents’ home. Despite

those efforts, the trial court found that Father failed to make lasting changes in his

lifestyle so that such change does not appear possible.

Father did not cooperate with several services offered to him. Although Father

completed his initial assessments, Father did not complete the recommendations of his

parenting assessment, alcohol and drug assessment, or his psychological assessment.

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Father has unaddressed anger management issues and his mental and emotional state is

detrimental to the Child. Father was recommended to attend individual therapy from his

psychological assessment but declined treatment after the intake and initial therapy

appointment. Ms. Tipton indicated her concerns that the parents would be unable to

safely parent the Child in the foreseeable future due to mental health issues, relational

challenges, and lack of commitment to services offered to them. Twenty-one of

approximately thirty-two parenting education sessions offered to them were cancelled.

According to Ms. Tipton, Father was unable to demonstrate the parenting skills that

Families Free was attempting to develop.

As the trial court found, alcohol was a “big problem in this case,” and Father’s

alcohol abuse was ongoing. Father did not comply with recommendations of his alcohol

and drug assessment that he attend weekly AA meetings. Although he did attend some

meetings, Father did not obtain a sponsor and was unable to identify the first step of the

AA twelve-step program.

The evidence supports the trial court’s finding that no meaningful relationship

existed between Father and the Child. As previously noted, the Child demonstrated

marked improvement while residing in her foster home and appeared to be thriving.

Upon a careful and thorough review of the record, we conclude that clear and convincing

evidence demonstrates that termination of Father’s parental rights was in the Child’s best

interest.

VII. Conclusion

For the foregoing reasons, we conclude that the trial court’s determination

regarding the admission of Mother’s hospital records into evidence was harmless error.

We reverse the trial court’s finding of clear and convincing evidence of the statutory

ground of persistence of conditions. We affirm the trial court’s judgment in all other

respects, including the termination of Mother’s and Father’s parental rights to the Child.

Costs on appeal are assessed equally to the appellants, Sherry G. and Teddy G, and the

appellee, Tennessee Department of Children’s Services. This case is remanded to the

trial court, pursuant to applicable law, for enforcement of the trial court’s judgment

terminating parental rights and collection of costs assessed below.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

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