The opinion
10/11/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 4, 2018
IN RE VIRGIL W., ET AL.1
Appeal from the Juvenile Court for Anderson County
No. J32648, J32649 Darryl Edmondson, Judge
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No. E2018-00091-COA-R3-PT
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A father’s parental rights to two children were terminated on the grounds of abandonment
by incarceration, substantial noncompliance with the permanency plan, failure to
manifest an ability and willingness to assume custody, and upon a determination that
terminating the father’s parental rights would be in the best interest of the children.
Father appeals; finding no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.
David R. Dunkirk, Oak Ridge, Tennessee, for the appellant, Arthur A.
Herbert H. Slatery, III, Attorney General and Reporter; Alexander S. Rieger, Deputy
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Brittany W. (“Mother”) and Arthur A. (“Father”) are the parents of Virgil W.,
born in June 2011, and Victoria W., born in May 2013. The Department of Children’s
Services (“DCS”) received a referral in March 2015 that the children were being exposed
to drugs in their home. An investigation ensued and a dependent and neglect proceeding
initiated; by order entered March 18, 2015, the children were removed from the home and
1
This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
placed in the custody of their paternal grandmother, Marquetta B., due to “the parent’s
substance abuse and mother’s ongoing investigation as a perpetrator of sexual abuse.”
The children were adjudicated dependent and neglected as to the Father on May 13, 2015
due to his substance abuse. As a result of reports that Marquetta B. was not properly
supervising the children and had violated the court order by allowing Mother and Father
to have unsupervised visitation, the children were ordered into the custody of DCS on
August 27; they were placed in a foster home, where they have remained. The children
were subsequently adjudicated dependent and neglected due to Marquetta B.’s improper
supervision. In a preliminary hearing order entered September 16, 2015, Father was
ordered to pay $50 per month per child in child support.
During DCS’s involvement with the family, three permanency plans were
created.2 These plans required Father to submit to a mental health evaluation and comply
with all recommendations; submit to an alcohol and drug assessment and comply with all
recommendations; complete parenting classes and utilize skills learned during visits with
the children; comply with all Court orders; resolve outstanding legal issues and not incur
any new criminal charges; submit to random pill counts and random drug screening;
obtain and maintain a safe and stable residence, income, and transportation; maintain
contact with DCS and provide current contact information to the DCS case manager; and
pay child support in the amount of $50.00 per child per month; and complete domestic
violence and anger management classes.
On August 16, 2017, DCS filed a petition to terminate the parental rights of father
alleging abandonment by engaging in conduct prior to his incarceration that exhibited a
wanton disregard for the welfare of the children, substantial noncompliance with the
permanency plan, failure to manifest an ability and willingness to assume custody, and
that termination of Father’s parental rights would be in the best interest of the children.3
A hearing was held on November 17, at which DCS case manager Christy Lester,
foster mother Tabetha H., and Father testified. In an order entered December 15, 2017,
the court found that the evidence was clear and convincing that the parental rights of
Father should be terminated on the grounds of abandonment by incarcerated parent,
2
The first permanency plan was developed on September 25, 2015, with a goal of return to parent, giving
Father until March 25, 2016, to comply with the requirements of the permanency plan; the requirements
were explained to Father and the plan was ratified on October 13, 2015. The plan was revised on April 4,
2016, with a goal of return to parent giving Father until October 4, 2016, to comply with the requirements
of the plan with an additional requirement that Father will complete domestic violence classes and anger
management; the requirements were explained to Father and the plan was ratified on May 27, 2016. The
permanency plan was revised again on February 9, 2017, with the goal of return to parent giving Father
until August 9, 2017, to comply with the requirements of the plan; the requirements were explained to
Father and the plan was ratified on May 26, 2017.
3
In June 2017, the mother surrendered her parental rights to both children and is not a party in this
proceeding.
2
substantial noncompliance with permanency plans, and failure to manifest an ability and
willingness to assume custody. The court also determined that termination of Father’s
parental rights would be in the best interest of the children.
Father appeals, challenging only the holding that termination of his rights was in
the children’s best interest. Nevertheless, we review all of the trial court’s findings with
respect to the grounds for termination as well as the best interest determination. In re
Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold that in an appeal from an
order terminating parental rights the Court of Appeals must review the trial court’s
findings as to each ground for termination and as to whether termination is in the child’s
best interest[ ], regardless of whether the parent challenges these findings on appeal.”).
II. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s
rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one
ground need be proved, so long as it is proved by clear and convincing evidence. In the
Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
3
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).
III. ANALYSIS
A. ABANDONMENT BY ENGAGING IN WANTON CONDUCT
A parent’s rights may be terminated on the ground of abandonment. Tenn. Code
Ann. § 36-1-113(g)(1). The statute defines abandonment, in relevant part, as follows:
A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or has willfully failed to support or
has willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent’s
or guardian’s incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child. . . .
Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2016) (emphasis added).
This court has stated that section 36-1-102(1)(A)(iv) “reflects the commonsense
notion that parental incarceration is a strong indicator that there may be other problems in
the home that threaten the welfare of the child.” In re Audrey S., 182 S.W.3d 838, 866
(Tenn. Ct. App. 2005). Under the statute, incarceration alone is not a ground for
termination; an incarcerated or recently incarcerated parent can be found to have
abandoned his or her child “only if the court finds, by clear and convincing evidence, that
the parent’s pre-incarceration conduct displayed a wanton disregard for the welfare of the
child.” Id. Accordingly, a parent’s incarceration serves “as a triggering mechanism that
allows the court to take a closer look at the child’s situation to determine whether the
parental behavior that resulted in incarceration is part of a broader pattern of conduct that
renders the parent unfit or poses a risk of substantial harm to the welfare of the child.” Id.
The pre-incarceration conduct referred to in Tennessee Code Annotated section
36-1-102(1)(A)(iv) is not limited to acts during the four-month period immediately
preceding the incarceration. In re Jeremiah T., No. E2008-02099-COA-R3-PT, 2009 WL
1162860, at *8 (Tenn. Ct. App. Apr. 30, 2009) (no perm. app. filed) (citing In re Audrey
S., 182 S.W.3d at 871). It is well established that “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
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support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the child’s welfare.” In re Audrey S. 182 S.W.3d at 867-
68 (citing State Dep’t of Children’s Servs. v. J.M.F., No. E2003-03081-COA-R3-PT,
2005 WL 94465, at *7-8 (Tenn. Ct. App. Jan. 11, 2005), perm. app. denied (Tenn. Mar.
21, 2005); In re C. LaC., No. M2003-02164-COA-R3-PT, 2004 WL 533937, at *7 (Tenn.
Ct. App. Mar.17, 2004), no perm. app filed; In re C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct.
App. 2004); In re C.W.W., 37 S.W.3d 467, 474–75 (Tenn. Ct. App. 2000).
Pertinent to this ground, the order terminating Father’s rights states:
. . . [T]he Court finds that there is clear and convincing evidence that
Arthur A[.] was incarcerated from June 6, 2017 until June 23, 2017. . . . Mr.
A[.] engaged in conduct prior to his incarceration that exhibits a wanton
disregard for the children’s welfare by violating his probation and using
illegal drugs. Mr. A[.] submitted to a hair follicle drug screen on March 31,
2017 and was positive for amphetamines, methamphetamines and extended
opiates. Mr. A[.] was arrested on September 11, 2016 and charged with
Aggravated Burglary and Burglary. Mr. A[.] subsequently pleaded guilty
to the lesser charges of Joyriding and Theft and placed on supervised
probation. In March 2017, Mr. A[.’s] probation officer filed a Violation of
Probation warrant against him, alleging that he failed to report to probation
and complete an alcohol and drug assessment as ordered. Mr. A[.] pleaded
guilty to the Violation of Probation on June 20, 2017. The Court finds that
this violation of probation and continued drug use constitutes a wanton
disregard on Mr. A[.’s] part for the welfare of the children.
Father does not dispute these findings, and upon our review of the record we
conclude that they are supported by clear and convincing evidence. The testimony of Ms.
Lester and Father, as well as the criminal record of Father all show that Father pled guilty
to criminal behavior, specifically, theft and joyriding, in September 2016 and failed to
report to the probation office or complete an alcohol and drug evaluation, as required by
the terms of his probation. The evidence is also clear that Father has abused prescription
and illegal drugs for years.
Ms. Lester testified that the petition was filed because of Father’s incarceration for
violation of probation and five counts of contempt of court for failure to pay child
support. She also testified that “[b]y violating his probation, [Father] knew he would and
could be incarcerated, which would prevent parenting the children” and that he had tested
positive for amphetamines, methamphetamines, oxycodone and hydrocodone on a hair
follicle drug screen in March 2017.
An intake report made at Ridgeview Behavioral Health Services in August 2016
states that Father acknowledged that he used “a joint or two daily” of marijuana. Father’s
5
drug and alcohol assessment states that he “reported that he developed an opiate
dependency after being prescribed various opioid medi[c]ation after sustaining a back
injury.” The assessment’s “diagnostic impression” states that father has “[o]pioid use
disorder, moderate” and recommended that Father participate in an outpatient substance
abuse treatment program.
Father testified that he was “probably” using pain pills when the children were
first removed from his home; that he tested positive for methamphetamine, amphetamine,
hydrocodone, and opiates during a drug screen in March 2017; and that, prior to going to
jail in June 2017 for violating his probation, he was working with the “STOP program”
by seeing his psychologist and going to classes to address his alcohol and drug treatment
needs but was “probably” still using drugs during that time period.
The results of the drug screens likewise are clear and convincing evidence that
Father continued to use drugs throughout DCS’s involvement with his family. The hair
follicle drug screen he took nine days prior to trial showed that he was still using illegal
substances, namely marijuana.
The record contains clear and convincing evidence Father violated the terms of his
probation and was incarcerated for a portion of the relevant period. He has not addressed
his addiction to drugs, and his continued use of illegal substances is evidence that he has
abandoned his children by engaging in conduct that exhibits a wanton disregard for their
welfare within the meaning of section 36-1-102(1)(A)(iv). We affirm the trial court’s
holding in this regard.
B. SUBSTANTIAL NONCOMPLIANCE WITH THE PERMANENCY PLANS
Tennessee Code Annotated section 36-1-113(g)(2) authorizes termination of
parental rights for failure to comply with a parenting plan where:
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan or a plan of care
pursuant to the provisions of title 37, chapter 2, part 4[.]
In order for noncompliance to justify the termination of parental rights, it must be
“substantial.” In re S.H., No. M2007-01718-COA-R3-PT, 2008 WL 1901118, at *7
(Tenn. Ct. App. Apr. 30, 2008) (no Tenn. R. App. P.11 application filed). Mere technical
noncompliance by itself is not sufficient to justify the termination of parental rights. Id.
Noncompliance with requirements in a permanency plan that are neither reasonable nor
related to remedying the conditions that led to the removal of the child from the parent’s
custody is not relevant for purposes of Tennessee Code Annotated section 36-1-
113(g)(2). Id. (citing In re Valentine, 79 S.W.3d at 548-49). In addition, the parent’s
degree of noncompliance with a reasonable and related requirement must be assessed. Id.
6
The issue of substantial noncompliance with the requirements of a permanency plan is a
question of law; therefore, it is reviewed de novo with no presumption of correctness. Id.
at 546.
With respect to this ground, the trial court found:
The Department has provided more than reasonable efforts in this
case to assist the father. The Department properly admitted into evidence
documents detailing thirty-eight times that the Department paid for services
to directly benefit the father and assist him in completing his tasks on the
plans. These services included therapeutic visitation, drug screening,
parenting classes, an alcohol and drug assessment, and a mental health
assessment. In addition to these services, the Department also attempted to
provide random drug screens, housing and employment assistance, and
transportation assistance, as well as diligent efforts to maintain contact with
the father. The father did not avail himself of the services provided by the
Department.
Mr. A[.] failed to maintain regular contact with the children. His last
visit was March 31, 2017. Mr. A[.] submitted to a hair follicle drug screen
on that same date, March 31, 2017 at the request of the Department. These
results were properly admitted into evidence as Exhibit 6 and show that the
father was positive for methamphetamine, amphetamines, oxycodone and
hydrocodone. Also admitted into evidence was documentation of the child
support that Mr. A[.] has paid over the course of the time the children have
been in custody. This reflects that Mr. A[.] has paid $10.00 per child in
support since the children have been in DCS custody. Mr. A[.] disputed this
during his testimony and reported that he believed he has paid
approximately $600.00 in child support during this custodial episode. Even
if that were to be the case, the Court finds this amount to be token
considering the circumstances. Mr. A[.] has not maintained contact with the
Department. He has not maintained any form of consistent housing,
transportation or income. Mr. A[.] did complete his alcohol and drug and
mental health assessments but failed to complete the recommendations of
those assessments. He did complete parenting classes. Mr. A[.] has
continued to use illegal drugs and has provided no proof of stability. He has
lived a transient lifestyle. All of the testimony and evidence heard by the
Court point to the father’s situation being a result of intentional acts by the
father. Based on the foregoing, the Court finds that Arthur A[.] did fail to
substantially comply with the permanency plans in this case.
Father does not dispute these findings and concedes in his brief that “in terms of
the Permanency Plan, the Appellant did not fully comply with the trial court’s orders.”
7
From our review of the record, we conclude that the following evidence supports the
findings of the court.
As to Father’s compliance with the plans, Ms. Lester testified that Father
completed the parenting classes, the alcohol and drug assessment, and the mental health
assessment, but that he did not follow the recommendations of each; that he had not
submitted to random drug screens or pill counts; that she requested that he “complete a
hair follicle drug screen, which tested positive for “methamphetamines, amphetamines,
hydrocodone and other extended opiates,” after which she requested that he complete a
new drug and alcohol assessment. She did not know if he completed a new assessment.
She further testified that Father had not provided proof of a stable income or housing; and
that Father “had paid $10 per child in the past two years.”
With respect to assistance Father received DCS, she testified that DCS “made a
total of 38 requests for funding by the Department to pay for case services to include an
A[lcohol] & D[rug] assessment, mental health assessment, hair follicle testifying,
parenting classes, therapeutic visitation, . . . random drug screens, . . . housing and
employment assistance[,] transportation assistance. She also testified that DCS engaged
in “ongoing diligent efforts to maintain contact with the Father and provided daily care
for the children.” Ms. Lester also testified:
I worked very hard to establish a good relationship with him and to provide
him with some encouragement. I’ve gone myself and located employment
for him, which was not utilized. I have continued efforts to work with him,
trying to engage him to be a father and parent his children with the services
that I provided him. I’ve worked diligently with his own attorney in
attempts to locate him and to work with him and to have his attorney
attempt to mediate any animosity that Mr. A[.] had towards me so I could
still work with him in that manner.
With respect to visitation, Ms. Lester testified that Father had not visited the
children regularly, and that his last visit had been on March 31, 2017. She also testified
that:
[The children] have gone so long without seeing him, that the team feels
like even a phone call could upset the children at this point, because he will
come into their life for a few months and start to work on his plan and then
he is gone again and then he comes back for a few more months and works
a little bit and gone again, and that really upsets the children. That
instability with that relationship is very upsetting to the children, to the
point that I have referred them to a therapist to be evaluated due to my
concerns for their well-being.
8
She testified that Father’s behavior toward the children was appropriate, but when asked
about her concerns about Father’s visitation with the children, Ms. Lester testified:
The visits between the father and the children were never really good visits.
There were always some concerns during the visit, whether it be the lack of
interaction between the father and the children or the children’s response to
seeing the father and acting out behaviorally or verbally, making verbal
statements about their parents. There was never a visit that was just a good
visit where there was bonding and parenting and a loving relationship.
Father testified that, when the children were removed from Marquetta B.’s home
in August 2016, he was living in the “[b]ack of my truck, abandoned house” and that in
March of 2017, he did not know exactly where he was living but “was either staying in an
old house or with a friend or somewhere.” When asked if he had ever sought treatment
for his opiate addiction or been to a detoxification facility to get clean, Father testified
that he was “basically doing that myself” and that “[r]ight now[,] I’m just dealing with
it.” As noted earlier in this opinion, the hair follicle drug screen he took nine days prior to
the trial showed that he was still using marijuana.
Father testified that he began work at the end of July or early August of 2017 with
a traveling amusement company making $280 per week, of which $169 was withheld to
pay for his room and board and that shortly after DCS became involved with his family,
he moved to West Virginia and worked in the home construction industry making $15 per
hour. An exhibit admitted at trial showed that Father made a one-time payment of $10
per child in child support in November 2016. Father contested that amount, testifying as
follows:
Q. When Ms. Lester was testifying earlier, she said you had only paid $10
per child over the last couple years. Is that consistent with your
recollection?
A. No.
Q. What would you say you have paid over the last couple years?
A. Over the last two years, I know six, $700 altogether. I mean, it’s --
Q. I’m just talking about Eugene and Victoria. Is that what you’re talking
about?
A. No, I’m talking child support. I take it in to child support, give them the
money and they split it out between the five.
Q. So there are three other kids you are paying child support for?
A. Yes.
The court resolved this conflict in favor of DCS and held that, in any event, the
amount that Father testified he paid was, under the circumstances, token support. We
agree with the trial court on both holdings. Father’s testimony does not preponderate
9
against the DCS record of the support he paid which was introduced into evidence. Even
if Father had paid $600 or $700 in the nearly two years since the court ordered him to pay
child support, he would still be deficient in his responsibility, as he had been ordered to
pay $50 per month per child. In light of his testimony as to his income and expenses
during the time children had been in DCS custody, the amount Father testified he paid
would constitute token support.
Based upon the evidence in the record, the requirements of the permanency plan
were reasonable and related to remedying the conditions which necessitated the
children’s placement in foster care. DCS provided exceptional efforts to assist Father in
meeting the requirements of the plans. Despite these efforts, Father failed to comply with
all recommendations from his mental health evaluation and alcohol and drug assessment,
incurred new criminal charges; failed to obtain and maintain safe and stable housing,
income, and transportation; and failed to pay child support as required or visit the
children. The evidence is clear and convincing that Father was not in substantial
compliance with the requirements of the permanency plans, and we therefore affirm the
trial court’s holding in that regard.
C. FAILURE TO MANIFEST AN ABILITY AND WILLINGNESS PERSONALLY TO
ASSUME LEGAL AND PHYSICAL CUSTODY OF OR FINANCIAL RESPONSIBILITY FOR
THE CHILDREN
Tennessee Code Annotated section 36-1-113(g)(14) provides:
A legal parent or guardian has failed to manifest, by act or omission, an
ability and willingness to personally assume legal and physical custody or
financial responsibility of the child, and placing the child in the person’s
legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child.
This ground requires the petitioner to prove two elements by clear and convincing
evidence. Tenn. Code Ann. § 36-1-113(c)(1), (g)(14). First, DCS must prove that Father
failed to manifest an ability and willingness to personally assume legal and physical
custody or financial responsibility of the children. Tenn. Code Ann. § 36-1-113(g)(14).
Then, DCS must prove that placing the children in Father’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological welfare of the
children. Id. This Court has observed the following regarding the requirement of
“substantial harm”:
The courts have not undertaken to define the circumstances that pose a risk
of substantial harm to a child. These circumstances are not amenable to
precise definition because of the variability of human conduct. However,
the use of the modifier “substantial” indicates two things. First, it connotes
10
a real hazard or danger that is not minor, trivial, or insignificant. Second, it
indicates that the harm must be more than a theoretical possibility. While
the harm need not be inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more likely than not.
Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted).
With respect to this ground, the court found that:
. . . [T]he Court finds that there is clear and convincing evidence that
Arthur A[.] has failed to manifest, by acts and omissions, an ability and
willingness to personally assume legal and physical custody or financial
responsibility for the children, and placing the children in Mr. A[.’s] legal
and physical custody would pose a risk of substantial harm to the physical
and psychological welfare of the children.
Mr. A[.] has not complied with the requirements set forth for him in
permanency plans and made orders of this Court as requirements to regain
custody of his children. Mr. A[.] admitted that he had considered himself to
have an opiate addiction at one point but reported that he was sober during
his testimony. He further reported that his sobriety was maintained by
leaving the area and traveling with a carnival for employment. Mr. A[.] also
testified that he is paid $280.00 per week and of that amount, $169.00 is
taken out for room and board by his employer. However, father testified
that his employment with the carnival had ended for the season but he
could “go back whenever he wanted.” Mr. A[.] has provided no proof of
stability, stable housing, or consistent employment. He has continued to use
illegal drugs. He has not completed drug treatment and he has lived a
transient lifestyle not conducive to stability that the children require. All of
the testimony and evidence heard by the point to the father’s situation being
a result of intentional acts by the father.
Further, when the children came into state custody, they were
neglected in the father’s care. The foster mother testified that that the
children’s teeth were in terrible shape and Virgil had to have twenty-two
oral procedures on the eighteen teeth he had at that time. She testified that
Victoria has a severe lice infestation which took her two weeks to
eliminate.
. . . The Court finds that placing the children back into Mr. A[.] care
would pose a risk of substantial harm to their physical and psychological
welfare.
Father does not challenge any of these findings, and upon our review of the record,
we conclude that they are supported by the evidence.
11
Father’s drug screen in March 2017 was positive for hydrocodone, amphetamine,
and methamphetamine; a drug screen eight months later was positive for marijuana.4
Though he testified that he was clean at trial, we have no proof to corroborate his
testimony. Further, when he was asked whether life with the traveling amusement
company was stable, he responded:
Q. Do you consider that a stable life for children, Mr. A[.]?
A. Do I? The life --
Q. Is that what you want to see for your children?
A. Out there, it’s -- I don't want to bring my children up in that. That’s what
I’m trying to do, is get myself right. I didn’t -- I mean, if it has to be,
they’re right there, they’re all family. I mean, we’re all together and we all
stick as one. So I don’t see nothing would be real bad about it.
Father testified that he did not want to raise the children in such an environment, but that
if he had to, he did not think it would be “real bad.” While Father testified that he was
willing to assume custody of the children, he has not addressed the problems inherent in
his addiction to drugs, nor has he resolved his need for stable housing or transportation;
these failures are clear and convincing evidence that he is unable to assume custody of
the children as contemplated by section 36-1-113(g)(14).
As to the second prong, whether placing the children in Father’s legal and physical
custody would pose a risk of substantial harm to the physical or psychological welfare of
the children, Ms. Lester testified about Father’s failure to visit the children since March
2017 and the fact that “there was never a visit that was just a good visit where there was
bonding and parenting and a loving relationship” between Father and the children.
Tabetha H. testified about the children’s poor state of dental and physical health when
they came into her custody, and how Virgil told her how, in Mother’s and Father’s home,
he would “hide from the police when they come to my house” because of “scary things”
like fighting. This testimony, as well as the evidence of Father’s persistent drug usage, is
clear and convincing evidence that returning the children to Father’s custody would pose
a risk of substantial harm to their physical and psychological welfare. We therefore
affirm the court’s holding in this regard.
D. BEST INTEREST
Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is in the best interest of the child for the
parent’s rights to be terminated, again using the clear and convincing evidence standard.
4
While Father argues that the fact that the latter drug screen was positive for only one illegal substance is
“no small accomplishment,” we note that it indicates that Father continued to use drugs up to the eve of
trial.
12
In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of factors at
Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the
child’s best interest.5 The list of factors in the statute “is not exhaustive, and the statute
does not require every factor to appear before a court can find that termination is in a
child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-
PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). As we consider this issue
we are also mindful of the following instruction in White v. Moody:
[A]scertaining a child’s best interests in a termination proceeding is a fact-
intensive inquiry requiring the courts to weigh the evidence regarding the
statutory factors, as well as any other relevant factors, to determine whether
irrevocably severing the relationship between the parent and the child is in
the child’s best interests. The child’s best interests must be viewed from
the child’s, rather than the parent’s, perspective.
5
The factors at Tennessee Code Annotated section 36-1-113(i) are:
In determining whether termination of parental or guardianship rights is in the best
interest of the child pursuant to this part, the court shall consider, but is not limited to, the
following:
(1) Whether the parent or guardian has made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the child’s best interest to be in the home
of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment after
reasonable efforts by available social services agencies for such duration of time that
lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other contact with
the child;
(4) Whether a meaningful relationship has otherwise been established between the parent
or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to have on the
child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or guardian,
has shown brutality, physical, sexual, emotional or psychological abuse, or neglect
toward the child, or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is healthy and
safe, whether there is criminal activity in the home, or whether there is such use of
alcohol, controlled substances or controlled substance analogues as may render the parent
or guardian consistently unable to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would be
detrimental to the child or prevent the parent or guardian from effectively providing safe
and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the child
support guidelines promulgated by the department pursuant to § 36-5-101.
13
171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).
The court made the following findings with respect to the children’s best interest:
1. Mr. A[.] has not made changes in his conduct or circumstances that
would make it safe for the children to go home, as set forth above.
2. Mr. A[.] has not made lasting changes in his lifestyle or conduct after
reasonable efforts by the state to help, so that lasting change does not
appear possible. The Department has bent over backwards to assist Mr.
A[.], but he has not availed himself of the assistance and services offered to
him
3. Mr. A[.] has not maintained regular visitation with the children. His last
visit was on March 31, 2017. The one time he has been in the area since
that date, he did not make arrangements or request to visit with the
children.
4. Changing caregivers at this stage of the children’s lives will have a
detrimental effect on them. They have been in the same foster home for
twenty-seven months. They have found safety and stability and are
extremely bonded to the foster parents.
5. Mr. A[.] has neglected the children.
6. Mr. A[.] abuses drugs, rendering him consistently unable to care for the
children in a safe and stable manner. By his own admission, he had a
substance abuse problem and has provided no evidence that he can
maintain long-term sobriety.
7. Mr. A[.] has not paid child support consistently. Documentation of the
child support that Mr. A[.] has paid over the course of the time the children
have been in custody was admitted into evidence and reflects that Mr. A[.]
has $10.00 per child in support since the children have been in DCS
custody. Mr. A[.] disputed this during his testimony and reported that he
believed he has paid approximately $600.00 in child support during this
custodial episode. Even if that were to be the case, the Court finds this
amount to be token considering the circumstances.
8. The children have established a strong bond with their foster parents,
who wish to adopt them.
These findings relate to statutory factors (1), (2), (3), (5), (6), (7), and (9). Father
does not dispute any of the above findings, and we find that they are supported by the
evidence in the record.
As best we can garner from his brief, Father’s contention relative to this
determination, quoted here, focuses on factor (1):
14
But at the hearing, the Appellant produced a subsequent drug screen
dated November 8, 2017 which showed a very different profile. While it
was positive for marijuana, it was negative for amphetamines and opioids.
In terms of the dangers of addiction, the Appellant appears to have
overcome the most difficult substances, thanks to getting away from bad
influences at home, and giving himself a real chance to get clean.
Appellant would submit that this was no small accomplishment.
And as the grounds for the D&N finding, drug dependency was a high
priority under the Permanency Plan.
Appellant contends that, once clean from addictive drugs, he would
be able to accomplish the remaining steps on his perm[anency] plan. He
just needed more time to do so.
This argument, however, asks us to consider the issue from Father’s perspective;
the best interest determination, however, focuses on what is in the children’s best interest.
In this case, Father himself testified that his children are in “good hands.” The testimony
of Tabetha H. and Ms. Lester underscores his testimony. The children are being very
well cared for in a loving home where the foster parents are ensuring that their physical,
mental, and emotional needs, which had been neglected in Father’s care, are now being
met. Father’s substantial challenges have been set forth earlier in this opinion and our
discussion of those challenges bears on the children’s best interest as well. On the record
before us, we conclude that there is clear and convincing evidence that termination of
Father’s rights is in both children’s best interest.
IV. CONCLUSION
For the foregoing reasons, the judgment of the trial court terminating Father’s
parental rights is affirmed.
_________________________________
RICHARD H. DINKINS, JUDGE
15