The opinion
12/18/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 1, 2018
IN RE LESLEY A.
Appeal from the Juvenile Court for Roane County
No. 2018-JC-7 Terry Stevens, Judge
No. E2018-00594-COA-R3-PT
Mother appeals the trial court’s determination that her parental rights to her daughter
should be terminated on the grounds of substantial noncompliance with the permanency
plans, abandonment by failure to provide a suitable home, and persistence of conditions.
Having concluded that clear and convincing evidence supports the trial court’s decisions
regarding grounds as well as its determination that termination is in the best interest of
the child, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and JOHN W. MCCLARTY, J., joined.
Darrell W. Sproles, Knoxville, Tennessee, for the appellant, Joyce A.
Herbert H. Slatery, III, Attorney General and Reporter, and Alexander S. Rieger, Deputy
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Joyce A. (“Mother”) is the mother of Lesley A., born in March 2004.1 On March
10, 2017, a petition was filed against Mother in the juvenile court alleging that Lesley
was a truant child in that she had nineteen unexcused absences during the 2016-17 school
year. After a hearing, the juvenile court issued a bench order on April 11, 2017, finding
probable cause that Lesley was dependent and neglected based upon evidence of
educational neglect and improper care and supervision. With respect to reasonable
efforts made to prevent the child’s removal from the home, the court noted that Child
1
Wesley A., the father of Lesley A., is not a party to the present appeal.
Protective Services “has been in the home, but mother is allegedly uncooperative.” The
juvenile court awarded temporary custody of Lesley to the Department of Children’s
Services (“DCS” or “the Department”) and appointed a guardian ad litem for Lesley. At
a preliminary hearing on April 13, 2017, the trial court ordered that Lesley remain in
DCS custody and that Mother have supervised visitation. Furthermore, the court ordered
Mother to pay fifty dollars ($50) per month in child support.
On April 25, 2017, the Department filed a petition in response to the bench order.
In the petition, DCS alleged that, in addition to Lesley’s truancy, “[t]here are also issues
with drug exposure of the child by the mother due to the mother’s improper use of
prescription medication.” The Department reported that it had worked with Mother in
2016 and required her to complete an alcohol and drug assessment and to follow the
resulting recommendations; according to DCS, Mother “has not completed any of the
requested services.” The Department requested that Lesley remain in its custody. The
court held an adjudicatory hearing on May 10, 2017, and determined that Lesley should
remain in DCS custody with Mother having supervised visitation.
On May 1, 2017, the Department met with Mother to develop a permanency plan
with goals of returning Lesley to Mother or allowing her to exit DCS custody with a
relative. (The requirements of the permanency plans will be discussed later in this
opinion.) The goal target date was November 1, 2017. The juvenile court ratified the
permanency plan in an order entered on June 13, 2017.
On November 30, 2017, the juvenile court entered an order requiring Mother to
provide DCS with the name and contact information for every doctor she had seen over
the past year for medical or mental health care and the name of every pharmacy where
she had filled a prescription. The court further ordered that Mother was under a
continuing obligation to update the Department with new information regarding her
medical and mental health care. At a hearing on December 4, 2017, DCS asserted that
Mother had not complied with the court’s previous order to disclose all medical
providers, and the trial court found her to be in contempt. The court gave Mother until
December 18, 2017 to improve her level of compliance. At that time, the court found
Mother was still not in compliance “although she has made attempts.” The court further
found that “the Department has made all reasonable efforts to assist with the underlying
drug issues but cannot successfully do this without [Mother’s] assistance.”
The Department developed a second permanency plan on December 17, 2017,
with the same goals as those in the original plan. The revised permanency plan was
approved by the court at a permanency hearing on December 18, 2017. The court noted
that Mother was not cooperating with DCS.
On January 19, 2018, the Department filed a petition to terminate the parental
rights of Mother and Lesley’s father. The petition alleged that Mother’s parental rights
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were subject to termination on the grounds of substantial noncompliance with the
permanency plans pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2);
abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. §§ 36-1-
113(g)(1) and 36-1-102(1)(A)(ii); and persistence of conditions pursuant to Tenn. Code
Ann. § 36-1-113(g)(3).
The trial
The court heard the case on March 14, 2018. Mother was the Department’s first
witness. She acknowledged that Lesley had been in foster care twice before, once as an
infant in Florida for about a month after a domestic assault incident and another time in
Tennessee for about three months in 2013 based upon “false allegations” by the child’s
father and others. Mother testified that she had been receiving disability benefits since
approximately 2006 due to multiple physical problems, including her back and hands. In
April 2016, Mother reported, she was in a car accident that caused injuries to her back.
At the time of the hearing, Mother stated, she lived on Andy Cooper Road in
Lancing, Tennessee and had been renting there since the end of February 2018. Prior to
that time, she lived with Gary Webb for about a month and a half, and before that she had
been homeless since November 2017, when she was staying on McElhaney Road in Ten
Mile, Tennessee. Prior to November 2017, Mother lived with Mabel Webb in Wartburg,
Tennessee for three or four months. Before she lived with Ms. Webb, Mother lived in
Rockwood, Tennessee for approximately two and a half years. Mother testified that she
left the house in Rockwood because she noticed that her daughter “was tied up and being
influenced by the other kids” and there “was too much drama there.” Mother and Lesley
were still in Rockwood when Lesley was taken into DCS custody in April 2017.
Mother testified that she met Ms. Webb through a television advertisement and
paid around $300 in rent. She left Ms. Webb’s house because Ms. Webb had dementia
and there were bed bugs in the home. Mother stayed with Steve Colburn, a man she had
met a few times, for about a month before moving into the place in Ten Mile for four or
five months. Gary Webb, a friend, helped Mother by spending money to fix up the Ten
Mile property to put it in livable condition. She testified that she still owed him about
$3,000. The agreement was that Mother would rent to own the property. Mother had to
leave the place in Ten Mile because the property was foreclosed upon due to the owner’s
failure to pay taxes.
Mother received $750 a month in Social Security disability benefits. She also
received food stamps.
When she lived in Florida, Mother testified, she received substance abuse services.
She admitted being an alcoholic, but stated that she had not had a drink in years. Mother
further testified that she did not abuse any other substances. She took prescription drugs
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as prescribed. Mother stated that her prescription drugs were gabapentin, tramadol, and
sometimes Percocet,2 as well as arthritis medications. She explained that she took
gabapentin for inflammation and pinched nerves, tramadol for breakthrough pain, and
Percocet for pain. Mother reviewed the dosages and how many of each medication she
took every day.
The Department spent a significant amount of time questioning Mother about her
medical history and prescription drug use.3 Mother testified that Dr. Segar prescribed
most of her pain medications, unless she was referred to another doctor for treatment.
After the car accident in April 2016, Mother received treatment at the hospital and was
referred to several specialists. According to Mother, she “broke” her back again a year
after the car accident. In August and September 2017, her pharmacy records showed
multiple prescriptions for oxycodone, some from the emergency room, some from Dr.
Clark (her primary care physician), and some from Dr. Segar. In April 2017, Mother
tried taking suboxone, but found that it did not relieve her pain.
When asked about the mental health assessment, Mother stated that she completed
a questionnaire on the computer, which counsel for the Department identified as an
addiction severity index. Mother admitted that she could not “read half of it, so I didn’t
put in answers.” Counsel responded: “So you weren’t honest on it, because you didn’t
read the question?”4 After learning more about Mother’s prescription drugs, the
Department recommended that she go to inpatient treatment. Mother testified that she
did not think she needed inpatient treatment because she did not think she had a drug
issue. The Department reminded Mother that, when Lesley was in DCS custody in 2013,
an alcohol and drug assessment resulted in a recommendation for inpatient treatment.
Mother responded that she had weaned herself off of the medications at issue in 2013.
Mother completed multiple assessments through DCS, including an alcohol and
drug assessment and a mental health assessment. In June 2017, Mother first went to
Ridgeview because she wanted a second opinion and she needed a therapist. An
assessment was completed at Ridgeview on June 27, 2017. Mother began seeing Paul
Taylor at Ridgeview for regular counseling in January 2018.
2
Percocet is the brand name for a drug containing oxycodone and acetaminophen.
3
The medical records referenced by the Department in its questioning of Mother are not in the record on
appeal.
4
The Court notes that the Department often employed an unnecessarily combative and disrespectful tone
in its questioning of Mother, who tested at a low level of intelligence and exhibited poor literacy on a
mental status examination.
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When asked whose fault it was that Lesley was in DCS custody, Mother said it
was her fault that Lesley was truant. As to the period in 2013 when Lesley was in DCS
custody for sexual abuse, Mother testified that she had not been aware that the abuse was
occurring at the home where she dropped Lesley off for tutoring until Lesley started
exhibiting signs of abuse.
On cross-examination, Mother was questioned about the assessment by Dr.
Brietstein in August 2017 in which he made four recommendations.5 One of Dr.
Brietstein’s recommendations was for Mother to participate in family therapy, and
Mother testified that she did not disagree with this recommendation; she was waiting for
the Department to make a referral. The second recommendation was for Mother to
continue having random drug screens, which was not new because the court had already
ordered Mother to submit to random drug screens. Dr. Brietstein’s third recommendation
was for Mother to participate in a twelve-step program to remain clean and sober.
Mother objected to this recommendation because she maintained that she was a recovered
alcoholic and felt that she did not need to be in a twelve-step program. Dr. Brietstein
recommended that Mother complete parenting classes, particularly focused on enforcing
consequences and maintaining healthy boundaries. Mother responded that she had
worked on these issues in one parenting class and was about to participate in another one.
Dr. Brietstein’s final recommendation was for Mother to undergo individual therapy for
panic disorder, an issue Mother felt she was addressing through other means. It was
Mother’s opinion that she had been compliant with all of Dr. Brietstein’s
recommendations with the exception of family therapy, which she was willing to do if the
Department arranged it.
Mother testified about her memory problems, especially immediately after the car
accident, and stated that she was allergic to Tylenol, morphine, and penicillin. It was her
understanding that the car accident had caused a fracture in her back. Mother testified
that she texted her caseworker on February 27, 2018, to inform DCS of her new address
in Lancing as well as information about her new primary care physician, Linda Cole.
The guardian ad litem asked Mother a few questions. Mother testified that, when
Lesley’s truancy problems began, she was being bullied at school. Mother tried to
address the issue by talking to the school and to the parents of the other child. Mother
would watch Lesley get on the bus. After the Department became involved, Mother
learned that another parent was allowing Lesley into that parent’s apartment with the
other parent’s child, where they would smoke marijuana. The school sent letters about
Lesley’s absences, but Lesley would hide them. Mother had been taking Lesley to
counseling since the 2013 sexual abuse that resulted in Lesley’s time in DCS custody.
5
Dr. Brietstein’s assessment does not appear in the record on appeal.
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Mother testified that, since Lesley had been in DCS custody, she had exercised
visitation once or twice a month, although there had been several cancellations around
Christmas, and Mother had not been able to give Lesley the birthday cake she made for
her. Mother spoke with Lesley on the telephone three days a week.
Carrie Watkins, a forensic interviewer with the Child Advocacy Center, stated that
she interviewed Lesley, who disclosed that she had been touched by her uncle on the
breast and the vagina more than one time. Lesley informed her mother about a week or
two after this happened, and her mother became angry and called the uncle’s
girlfriend/wife.
The Department’s next witness was Dr. Howard Abraham Brietstein, a clinical
psychologist in private practice who performed a psychological evaluation of Mother on
August 15, 2017. With respect to the relevant history regarding Mother, Dr. Brietstein
noted that she denied being high or intoxicated at the time of the car accident in 2016.
She admitted that her blood test showed that she had tramadol and Xanax in her system,
but claimed she had a prescription for both drugs and asserted that all charges against her
had been dropped. Dr. Brietstein testified that Mother did not accept responsibility for
her daughter’s truancy, her own substance abuse, or any other issues. The Department
asked Dr. Brietstein whether it would cause him concern to know that Mother “was also
taking multiple prescriptions of oxycodone, gabapentin, clonazepam?”6 He stated that
such drugs are “highly addictive” and would cause him concern in light of her history of
drug abuse as described by DCS. When the Department continued to question Dr.
Brietstein regarding the effect of using such drugs, he stopped the questioner and stated
that such information was beyond the scope of his practice.
Dr. Brietstein testified that Mother scored very low on intelligence testing. The
abbreviated IQ test he administered yielded a general ability index of 70, which placed
her in the borderline range of intelligence. He noted, however, that because he used the
abbreviated test, Mother’s actual ability could be “somewhat higher” or “somewhat
lower.” Dr. Brietstein stated that, based on Mother’s score, he could not say that she was
intellectually disabled, “but we can say that she’s not particularly smart, that she has
some cognitive deficiencies that would affect her judgment, her reasoning ability, and
that would cause some concern about how well she reasons things out when she makes
decisions.”
Mother exhibited a low reading level—a very beginning fourth grade level. The
personality test Dr. Brietstein administered required at least a fourth grade reading level
to be able to read the test. Mother omitted a lot of items on the test. For those items
Mother did complete, “the test suggested that it was not a valid test and that probably she
could not understand the questions.” Dr. Brietstein concluded that it was an invalid test.
6
The records to support this question do not appear in the record on appeal.
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Based upon his evaluation of Mother, Dr. Brietstein reached the following
conclusions:
Well, first, I would say that she does not keep good boundaries with her
daughter, that she does not really have a very solid adult/child relationship
with her daughter, that she does not provide adequate supervision with her
daughter, that she is somewhat mentally unstable because of these panic
attacks, that she is confused about what is proper in the parent/daughter
relationship, that she doesn’t make good judgment about what is expected
of her as a parent, that I have concerns about the way that she is using
medications, mixing medications, even with a little bit that I saw, without
knowing about anything else that she didn’t tell me, that I have concern
about the way that she is using Xanax and tramadol without knowing
anything else. I have concern that she shows a complete lack of remorse,
takes no responsibility whatsoever for her actions, and I have concerns
about that, that she has cognitive deficiencies that make it difficult for her
to parent.
To address these concerns, Dr. Brietstein recommended family therapy, random drug
screens, parenting classes, and individual therapy for panic disorder.
Darlene Brown, a Health Connect employee who performed an alcohol and drug
assessment and mental health evaluation on Mother, testified that she met with Mother on
May 29, 2017. Mother informed Ms. Brown that she was taking Percocet and Xanax, but
she did not have the Xanax prescription with her. Her urine drug screen was positive for
Oxy and BZO (consistent with Percocet and Xanax). The results of a substance abuse
screening tool indicated that Mother was “at high probability for existing substance use
disorder.” Mother also completed a mental health screening form, life events checklist,
and social interaction anxiety scale.
Ms. Brown’s diagnostic impressions were: general anxiety disorder; provisional
benzodiazepine use disorder; alcohol use disorder in sustained remission; rule out PTSD;
and likely complicated grief, unresolved. Ms. Brown recommended individual
counseling as well as family therapy; coordination of care between primary care
physician and mental health medication management provider; parenting classes; pain
management referral for alternative pain treatments and second opinion regarding neck
surgery; domestic violence victim education classes; consistent contact with child to
maintain parent-child bond; supportive assistance to obtain driver’s license, insurance,
and possibly GED; and possible intensive outpatient program (“IOP”)/drug use
counseling if client cannot produce Xanax prescription.
-7-
Next to the stand was Sarah Steinbruegge, a therapist at Health Connect who
performed a mental health assessment on Lesley in May 2016. Lesley reported having
two experiences with sexual abuse, the first when she was eight years old by her mother’s
friend and the second a few years later by an uncle. Ms. Steinbruegge testified that
Lesley reported symptoms consistent with posttraumatic stress disorder. Lesley stated
that she was “fearful to tell her mother, but she did tell her about it eventually and . . . her
mother was supportive.”
Abigail Johnson, a case manager with Omni, provided supervision for Mother’s
visits with Lesley until August or September 2017. Ms. Johnson testified that there were
issues with Lesley and Mother arguing during visits, with Mother failing to show up for
visits, with Lesley wanting to leave visits, and with inappropriate conversations during
visits. Ms. Johnson reported that Lesley wanted to leave visits on two occasions because
she and Mother were arguing. The arguments arose because Lesley was “questioning
mom on if she was getting what she needed to get done, her classes, things like that that
were required of her in order for Lesley to come home.” These were not considered
appropriate topics for visitation, and Ms. Johnson would redirect the conversation. This
occurred at every visit. Ms. Johnson stated that such conversations were an example of
role reversal.
Ms. Johnson testified that Mother was required to confirm her visits twenty-four
hours prior to the visit, but she did not always comply with this requirement. Sometimes
Mother would confirm but not within the time frame. There were also times when
Mother failed to appear for a visit. Mother was also required to bring activities,
something to entertain them during the visit or to pick a place where the two of them
could have fun, such as a park, or to provide a meal. According to Ms. Johnson, Mother
did not consistently comply with this requirement.
On two occasions, Ms. Johnson called Mother to confirm visits and identified
herself, but she did not think Mother remembered who Ms. Johnson was. Mother seemed
to think she was talking to Lesley. At times, Mother behaved erratically and would
decide she could not make it to a visit when Ms. Johnson and Lesley were on their way to
the visit.
The Department also called Lauren McElhaney, who was a case worker assigned
to Lesley’s case from the time of her removal in April 2017. She testified that Lesley
was initially removed for truancy and neglect; after the hearing, however, the Department
raised concerns about substance abuse. At the initial child and family team meeting
(“CFTM”), the Department decided to set up visitation through Omni. Ms. McElhaney
then discussed the concerns reflected in the permanency plan. She stated that, although
Mother did not feel that she need alcohol and drug services, she signed off on the plan.
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Ms. McElhaney testified that Health Connect provided an in-home alcohol and
drug assessment and recommended outpatient counseling with a mention of IOP if
Mother did not provide a copy of her prescriptions. Ms. McElhaney stated that Mother
did not, in fact, provide a copy of her prescriptions to DCS, and the Department
suggested IOP. Mother did not think that she needed intensive services because she
maintained she did not have a drug problem. Nevertheless, the Department made such
services available, either in-home or at a community site. At about this time, Ms.
McElhaney rotated off of the case. The last that she knew, Mother had not completed the
recommendation for IOP services.
As to the random drug screens, Ms. McElhaney testified that she had made a
couple of attempts but had been unable to find Mother at the listed addresses to perform a
random screen or pill counts. With respect to housing, the issue was that Mother could
not be found at the address she gave. Ms. McElhaney described her interactions with
Mother as follows:
A. In my interactions with her, a lot of them were kind of argumentative.
She argued that she didn’t need a lot of this, that she didn’t have a drug
issue. She argued that we were trying to keep her kid from her
purposefully. She argued that she’s living at that house, she’s living at that
house, but I kept telling her I couldn’t find her there, and I would always
try to explain to her why I needed to find her there or why it would need to
be a random visit, because it didn’t look like she was living there, and I
tried to explain things to her as best as I could, and if she did ask me a
question, I would clarify and try to make sure she understood what I was
saying.
Q. Did you have to have those conversations with [Mother] repeatedly?
A. Yes.
Q. Over the same issues?
A. Yes.
Q. During the time that you had the case, do you feel that [Mother] was
demonstrating consistent forward progress?
A. No.
Q. How would you describe the progress that [Mother] was making?
A. I think it was intermittent at best. I mean, it seemed like she would take
a step and, you know, I have housing, I have housing, but we couldn’t
verify it, or she went for the A&D assessment, but it took her arguing first
that she didn’t need it before she would just go and do it. It took
rescheduling her full psychological before she would get it done. And the
visitations, I was getting a lot of reports about visitations and phone calls,
inappropriate conversations, arguments, things like that. So I would say it
was kind of intermittent.
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Q. At any point in the case through your conversations, . . . did [Mother]
ever appear to take responsibility for the reasons that Lesley was in
custody?
A. No. She blamed Lesley for the truancy issue. She made comments that
Lesley knew she had to be in school, she should have been in school. And
as far as her being in custody, she blamed the Department. She said that we
took her kid away from her. And about her in custody before, she said that
it was our fault she was in custody, we are trying to keep her kid from her.
Q. At any point did she ever acknowledge an understanding for the reason
there were concerns about her prescription drug use?
A. No. She denies that she has issues with that.
Q. At any time during your pendency of time on the case, were you able to
get [Mother] to sign releases for pharmacy records or to get validations of
prescriptions or any of that?
A. No.
When Ms. McElhaney rotated off of Mother’s case in July 2017, Mother had
completed the mental health and alcohol and drug assessments, but not the
recommendations. She had also completed the parenting classes. Mother still had
transportation issues to resolve, housing and income to be verified, and prescriptions to
confirm or random drug screens to provide.
Jennifer Harris took over as the DCS caseworker for Lesley in July 2017. Ms.
Harris testified that she visited Mother on August 3 at Mabel Webb’s house and
administered a random drug screen. Mother tested negative for all substances. Mother
was surprised about the test results because she had taken Klonopin the previous night.7
Ms. Harris then ordered a hair follicle test, which was completed on August 31, 2017,
and showed opiates (codeine) and extended opiates (hydrocodone and oxycodone).
Asked to describe her experience working with [Mother], Ms. Harris stated that
“[m]ost of the time it’s been very hostile, and it’s also been a little erratic as far as her
mood or attitude as far as cooperation and/or actually working with me.” Ms. Harris
testified that, at times, Mother did not appear to understand what was happening. For
example, when her attorney and others attempted multiple times to explain the need for
her to sign medical release forms, as required by the court, Mother “got very upset and
refused to sign anymore and left, like just abruptly left.” She returned later with her
landlord so that he could help her understand, “and she then began to fill out a couple
more releases and then again became upset and left.” Ms. Harris further testified that
7
After obtaining a court order, Ms. Harris received Mother’s pharmacy records for July and August 2017,
which showed prescriptions for Klonopin, oxycodone, tramadol, methyltredniaolone, gabapentin,
medroxy, progesterone, and tizanidine.
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there were times when Mother appeared not to know who Ms. Harris was. For example,
in a CFTM, Mother would say something about her case manager, Jennifer, and Ms.
Harris would say, “[T]hat’s me, I’m your case manager, Jennifer.”
Ms. Harris identified her biggest concern regarding this family to be the
unaddressed alcohol and drug issues. Second would be Mother’s inability to maintain
stable housing. Whereas Covenant Counseling had initially been put into place to
perform an IOP, that recommendation changed when more information came to light
about Mother’s substance abuse, which she never admitted, and all of her prescriptions.
The recommendation changed to inpatient treatment.
Covenant Counseling therapist Kathy Huff testified that she worked with Mother
through an IOP to specifically address substance abuse and related mental health issues
beginning in July 2017. The intention was for Ms. Huff to meet with Mother for at least
two hours per week, but that did not happen due to Mother’s inconsistent participation
and poor communication with Ms. Huff. Ms. Huff last saw Mother in December 2017.
As of January 2018, they were working to get Mother into an inpatient treatment
program.
Ms. Huff reported that Mother quickly completed the entire IOP curriculum. They
met at different places on a total of four occasions. During one meeting at Hardee’s,
Mother behaved erratically. She argued with restaurant staff and was “antsy.” As the
meeting continued, Mother informed Ms. Huff that she was under the influence of a
prescription because she had broken her back. Ms. Huff had to redirect Mother many
times because she was distracted. Mother had difficulty reading as they went over the
initial treatment plan, so Ms. Huff read it to her, and Mother then signed it. They went
over the plan again at their next meeting and, when Mother disagreed with part of it, Ms.
Huff took that part out. A few days later, Mother called Ms. Huff and “it was almost like
she didn’t even remember us going over the initial plan.” Mother was upset during this
phone conversation, cursed, and threatened to file a complaint against Ms. Huff.
At a CFTM meeting, Ms. Huff and the care team discussed all of Mother’s pain
medications and decided that inpatient treatment was necessary. Mother did not like the
new recommendation. Nevertheless, after talking to her attorney, Mother agreed to
comply because she “wanted to keep her child.” Ms. Huff gave her the names of some
inpatient treatment facilities. Mother also decided to have an evaluation at Ridgeview.
Jessica Howard, Ms. Harris’s supervisor at DCS, testified that she had overseen
the case when Ms. McElhaney had been the caseworker. Moreover, Ms. Howard was the
supervisor the first time Lesley entered foster care. Prior to the time when Lesley came
into foster care, Ms. Howard was aware of the sex abuse case because “there were some
other children in the home that [the perpetrator] lived in that were removed from that
home.” When Lesley disclosed the sexual abuse in 2013, she said that it had been going
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on for two years, which was the time when the two other children had been removed
from the home. Lesley would go over to the home and play with the two girls, and
Mother was using the perpetrator as a tutor. According to Ms. Howard’s testimony, there
was “significant drug use in that home” and “a lot of criminal activity, a lot of people
coming in and out.” She stated that “[i]t was a known drug house.”
Ms. Howard stated that Lesley came into custody in 2013 because her older sister,
Victoria, was in court and tested positive for methamphetamines, so the judge asked DCS
to try to find Mother so that Lesley could be returned to her. It was the Department’s
understanding that Mother had left Lesley in Victoria’s care. Despite several attempts,
the Department was unable to locate Mother, so the judge put Lesley into foster care.
The sex abuse case had come to light right before Lesley entered foster care. Although
DCS had concerns about Mother’s drug use, Mother completed the steps on her
permanency plan, so Lesley was returned to her.
The Department’s attempts to talk to Mother about her drug problems were met
with what Ms. Howard described as “smoke and mirrors.” Mother would bring in a
shoebox full of medications or a purse full of prescription receipts. Typically, she would
have inserts about the benefits and side effects of the medications rather than the actual
prescriptions. Mother would not take responsibility for the problems that brought Lesley
into foster care. Ms. Howard expressed the following concerns:
A. . . . Most every time I have ever talked to her, I’m always concerned
with the prescriptions that she’s on, that she mixes, concerned to the point
where I have called the police to say, you know, there’s someone leaving
our office, she appears to be under the influence, you know, just want to
make sure that someone sees her on the road, because it was around time
for everyone to be leaving our office; I didn’t want anyone to be involved
in an accident, but also I have talked to her at length about the concerns we
have for her health.
Q. In the multiple Child and Family Team Meetings that you have had, is
there progress? . . .
A. Every Child and Family Team Meeting we have, we are constantly
rehashing what we already talked about in the previous meeting, to the
point where it’s just—it’s arguing. It’s not only arguing with us on whether
or not it’s true or not, it’s her arguing with her own attorney. It’s just hard
to—it’s hard to converse with her, because she doesn’t want to take any
responsibility for what’s happened. So we are never able to, okay, let’s
take responsibility for this and let’s look at what we need to do to resolve
that, let’s move on. It’s constantly defending—she’s always in defense
mode.
Q. Do you feel like today, given the circumstances, that you could send
Lesley home with [Mother] on a trial home visit?
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A. As much as I would love to, there is no way I would feel comfortable
with it at all.
Q. Do you believe that it is in Lesley’s best interest to go home to her
mother today?
A. Unfortunately, no, because I would be afraid that Lesley would be in
another situation where she was sexually abused due to lack of supervision,
that she would be in another car accident, that she would be exposed to any
type of drugs, or that Lesley would be so overwhelmed with adult
responsibilities, that she would be suffering from depression, anxiety,
because Lesley had always appeared to be the caretaker in their
relationship.
Finally, Mother testified on her own behalf. She introduced pictures of her new
home into evidence. The trailer had two bedrooms and one bathroom. She also
submitted a letter from the Social Security Administration documenting her total monthly
income to be $766 a month (disability benefits and food stamps).
Mother testified that she faithfully called Lesley according to the weekly schedule
allowed by DCS. She stated that she and Lesley had a close relationship, that she could
“pretty much tell what Lesley is doing.” Mother continued:
I can tell the tone of her voice, the way she talks, if she shuts down. I know
my child. . . . I can tell when something is troubling Lesley. I can look in
her eyes and tell you if she’s up to something or, you know, really sit down
with her—I just know my baby.
She voiced her understanding that Lesley needed to go to school regardless of bullying
and stated that “this has really been a learning lesson.” Mother expressed her willingness
to participate in family therapy whenever it was approved. At present, Mother was going
to Ridgeview and receiving therapy with Paul Taylor.
For the past few months, Mother stated, finding stable housing had been her
primary focus. At her new residence in Lancing, Mother lived by herself with her little
dog, and there was room for Lesley. Mother had also signed up for Section 8 housing
assistance. She had access to a car through her landlord, but she still needed to get
insurance on it. Mother already had a valid driver’s license.
Before Lesley was summoned to truancy court, Mother took her to Ridgeview to
try to get services for her there. She testified that, if Lesley was allowed to return home,
Mother would make sure she went to school and received the family therapy she needed.
She understood that, even if she saw Lesley get on the school bus, she needed to follow
up with the school to make sure Lesley was attending school. Mother felt that she and
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Lesley had a strong parent/child bond, and she stated that she understood the importance
of having appropriate boundaries between parent and child.
The trial court’s decision
After hearing all of the proof, the trial court entered an order dated April 16, 2018,
including detailed findings of fact. The court found clear and convincing evidence to
support the termination of Mother’s parental rights on the grounds of substantial
noncompliance with the permanency plan, abandonment by failure to provide a suitable
home, and the persistence of conditions. Furthermore, the court found clear and
convincing evidence that termination of Mother’s parental rights was in the best interest
of the child.
Mother appeals the trial court’s decision to terminate her parental rights with
respect to each of the three grounds as well as the trial court’s best interest determination.
STANDARDS GOVERNING PARENTAL TERMINATION TRIAL PROCEEDINGS AND
APPELLATE REVIEW
The Tennessee Supreme Court has described the appellate review of parental
termination cases as follows:
An appellate court reviews a trial court’s findings of fact in termination
proceedings using the standard of review in Tenn. R. App. P. 13(d). Under
Rule 13(d), appellate courts review factual findings de novo on the record
and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness.
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also
In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).
The termination of a parent’s rights is one of the most serious decisions courts
make. As the United States Supreme Court has said, “[f]ew consequences of judicial
action are so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S.
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745, 787 (1982). “Terminating parental rights has the legal effect of reducing the parent
to the role of a complete stranger,” In re W.B., IV, Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005),
and of “severing forever all legal rights and obligations of the parent or guardian.” Tenn.
Code Ann. § 36-1-113(l)(1).
A parent has a fundamental right, based in both the federal and state constitutions,
to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d
674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn.
1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right “is among
the oldest of the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions.” In re Carrington H., 483 S.W.3d
at 521-22, n.13 (citing U.S. Const. amend. XIV, § 1; Tenn. Const. art. 1, § 8). Although
this right is fundamental, it is not absolute. Id. at 522. The State may interfere with
parental rights only in certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d
at 250-51. Our legislature has listed the grounds upon which termination proceedings
may be brought. See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are
statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists,
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998).
To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah
S., 455 S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
“‘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 Carrington H., 483 S.W.3d at 522
(quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)).
“Evidence satisfying the clear and convincing evidence standard establishes that the truth
of the facts asserted is highly probable and eliminates any serious doubt about the
correctness of the conclusions drawn from the evidence.” In re Audrey S., 182 S.W.3d
838, 861 (Tenn. Ct. App. 2005).
As a reviewing court, we “must ‘distinguish between the specific facts found by
the trial court and the combined weight of those facts.’” In re Keri C., 384 S.W.3d 731,
744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct.
App. 2007)). Then, we must determine “whether the combined weight of the facts . . .
clearly and convincingly establishes all of the elements required to terminate” a party’s
parental rights. Id. (citing In re Tiffany B., 228 S.W.3d at 156, and In re S.M., 149 S.W.3d
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632, 640 (Tenn. Ct. App. 2004)). “When a trial court has seen and heard witnesses,
considerable deference must be accorded to the trial court’s findings as to witnesses’
credibility.” Id. (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912,
915 (Tenn. 1999)).
Once a ground for termination is established by clear and convincing evidence, the
trial court or the reviewing court conducts a best interest analysis. In re Angela E., 303
S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005), and White
v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). “The best interests analysis is
separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent's
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
ANALYSIS
A. Grounds for Termination—
1. Substantial compliance.
We first consider the trial court’s termination of Mother’s parental rights based on
her substantial noncompliance with the permanency plan. Tennessee Code Annotated
section 36-1-113(g)(2) allows a court to terminate parental rights where “[t]here has been
substantial noncompliance by the parent . . . with the statement of responsibilities in a
permanency plan pursuant to title 37, chapter 2, part 4.”8 To succeed under this ground,
DCS must “demonstrate first that the requirements of the permanency plan are reasonable
and related to remedying the conditions that caused the child to be removed from the
parent’s custody in the first place.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App.
2004). Conditions that make foster care placement necessary “may include conditions
related both to the child’s removal and to family reunification.” In re Valentine, 79
S.W.3d at 547. The court must then determine whether the noncompliance is substantial.
In re M.J.B., 140 S.W.3d at 656. In assessing a parent’s substantial noncompliance with
a permanency plan, the court should measure “both the degree of noncompliance and the
weight assigned to that requirement.” In re Valentine, 79 S.W.3d at 548. “Trivial, minor,
or technical deviations from a permanency plan’s requirements will not be deemed to
amount to substantial noncompliance.” In re M.J.B., 140 S.W.3d at 656.
8
Our Supreme Court has held that “proof of reasonable efforts is not a precondition to termination of the
parental rights of the respondent parent.” In re Kaliyah S., 455 S.W.3d at 555. Rather, reasonable efforts
is one of the factors to be weighed in the best interest determination. Id.
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In the present case, the first permanency plan identified the following areas of
concern with respect to Mother: residential instability, mental health, parenting,
substance use, communication, and transportation. In order to address these concerns,
Mother was required to complete the following action steps: maintain safe, stable, and
adequate housing for at least three months; provide background checks on any occupants
in the residence; notify DCS of any changes of residence or occupants of the residence
within one day; be available for random home visits; provide proof of housing to DCS;
complete a mental health assessment and follow all recommendations; provide proof of
completion of the mental health assessment to DCS; sign all necessary consent forms to
allow DCS to access her records; complete a full psychological evaluation and follow all
recommendations; complete parenting classes; complete a parenting assessment if
deemed necessary by staff after completion of parenting classes; participate in supervised
visitation and follow the guidance of the visitation supervisor; demonstrate appropriate
boundary setting and discipline with Lesley, avoid inappropriate conversation with
Lesley, and establish appropriate parent/child roles in her relationship with Lesley;
complete an alcohol and drug assessment; complete all recommendations of the alcohol
and drug assessment and remain in full compliance with services until successfully
discharged by the provider; provide a certificate of completion of recommended services
to DCS within ten business days; provide proof of all prescriptions to DCS on an ongoing
basis as requested by the Department; submit to random drug screens, including hair
follicle, nail bed testing, and random pill counts; participate in family therapy;
demonstrate the skills she is learning in family therapy in her interactions with Lesley;
and establish a transportation plan.
Under the second permanency plan developed on December 17, 2017, the
Department included an additional area of concern for child behavior due to inappropriate
conversations regarding the case during Mother’s visitation with Lesley. As to this area
of concern, Mother was assigned the following action steps: provide necessary items to
meet the child’s needs during visitation; call Lesley three times a week at set times; arrive
at visitation on time; engage in appropriate conversation during visitation; and sign all
required releases to allow DCS to provide appropriate case management services.
Another added area of concern was finances because it was reported that Mother had not
made payments on her child support obligation since her case was opened. Under this
area, Mother’s action steps were to pay child support as ordered by the court and provide
DCS with proof of compliance. Under the area of mental health, Mother was given
additional action steps to participate in medication management (as recommended in the
mental health assessment) and provide documentation of her ongoing participation.
Finally, there was a concern regarding abuse because Lesley disclosed to her counselor
that Mother had smacked or hit her during an argument. Mother was to participate in
anger management-focused counseling and follow all recommendations.
Mother argues that many of the action steps in the permanency plans were not
reasonably related to the conditions that caused Lesley to enter state custody—namely,
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educational neglect and Mother’s failure to provide adequate supervision. This argument
reflects a misunderstanding of the applicable legal principles. In In re Valentine, our
Supreme Court discussed the statutory language found in Tenn. Code Ann. § 37-2-
403(a)(2)(C), that permanency plan requirements must be “reasonable and related to
remedying the conditions that necessitate foster care placement.” In re Valentine, 79
S.W.3d at 547. As mentioned above, the Court determined that “[c]onditions
necessitating foster care placement may include conditions related both to the child’s
removal and to family reunification.” Id. Similarly, in Department of Children’s
Services v. C.L., No. M2001-02729-COA-R3-JV, 2003 WL 22037399, at *23 (Tenn. Ct.
App. Aug. 29, 2003), this court declined to consider a parent’s alleged failure to comply
with a condition that it found was “not related to the conditions that led to removal of the
children or to remedying conditions that required that the children remain in foster care.”
Thus, to be reasonably related to remedying the conditions that necessitated foster
care placement within the meaning of Tenn. Code Ann. § 37-2-403(a)(2)(C), the action
steps in the permanency plans must be reasonably related to the conditions that led to
Lesley’s removal or reasonably related to remedying conditions that impede reunification
of the family. In this case, the key conditions identified by DCS and the trial court as
requiring Lesley to remain in foster care were Mother’s residential instability, mental
health issues, and substance use problems. When we consider the action steps in the
DCS permanency plans as means to remedy these conditions, we find them to be
reasonable.
On appeal, Mother further argues that the juvenile court erred in its December 18,
2017 order ratifying the second permanency plan because the court failed to make
specific findings concerning her compliance with all of the requirements of the first
permanency plan. The court generally found that Mother was not in substantial
compliance “in that she has no housing; failed to follow recommendations; and drug
screens.” Mother cites nothing that would require the juvenile court to make such
findings, and she failed to appeal the juvenile court’s December 18, 2017 permanency
order, which is a separate proceeding from the present termination case. In the juvenile
court’s termination order, the order at issue in this appeal, the court made the following
findings:
[T]he Court finds that there is clear and convincing evidence the
Respondent failed to substantially comply with the permanency plans as
ratified by the Court on June 13, 2017. Upon the testimony of Jennifer
Harris, Representative of the Department of Children’s Services, the
permanency plans required Respondent, [Mother] to pay child support;
consistently visit with the child; maintain safe and suitable housing;
complete parenting classes; participate in and complete alcohol and drug
assessments and follow all recommendations; participate in and complete
mental health assessment and follow all recommendations; submit to
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random drug screens and pill counts; complete a full psychological;
maintain stable transportation; and maintain contact and cooperation with
the Department.
....
The Court finds by Clear and Convincing Evidence that respondent,
has not substantially complied with the responsibilities and requirements
set out for her in the permanency plans. Respondent has not followed
through with the recommendations of the alcohol and drug assessment,
mental health assessment or psychological evaluation; not consistently
submitted to random drug screens or pill counts; does not have stable or
appropriate housing; and has not stayed in consistent contact with the
department.
Thus, the court enumerated the ways in which Mother failed to substantially comply with
the permanency plans.
In its termination order, the juvenile court noted that “the three main root issues”
in Mother’s case were “the alcohol and drug issues, mental health issues, and stable
housing.” Although she completed an alcohol and drug assessment, Mother consistently
denied having a substance abuse problem and resisted recommendations that she receive
individual counseling to address her dependency. The Department had difficulty finding
Mother to perform random pill counts, and she was unable to provide documentation for
many of her prescription medications. A hair follicle test in August 2017 was positive for
multiple opiates. During the time when Lesley was in foster care, Mother moved four
times. At the time of the hearing, she had recently moved into a trailer in Lancing, but
the Department had not yet been able to approve the residence. Mother had made some
progress toward a transportation plan in that she had obtained a driver’s license.
We conclude there is clear and convincing evidence to support the trial court’s
decision to terminate Mother’s parental rights on the ground of substantial
noncompliance with the permanency plan.
2. Failure to establish a suitable home.
Abandonment by failure to provide a suitable home occurs under the following
circumstances:
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 finds, that the
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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[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2016) (amended effective July 1, 2018). Thus, the
statute requires the Department to prove, with respect to the relevant four-month time
period, three elements: (1) the parent failed to make reasonable efforts to provide a
suitable home, (2) DCS “made reasonable efforts to assist the parent . . . to establish a
suitable home,” and (3) the parent “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.” Tenn. Code Ann. § 36-1-102(1)(A)(ii). In the context of Tenn.
Code Ann. § 36-1-102(1)(A)(ii), a “suitable home” means “‘more than a proper physical
living location.’” In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397,
at *9 (Tenn. Ct. App. June 10, 2014) (quoting State v. C.W., No. E2007-00561-COA-R3-
PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007)). A suitable home must “be
free of drugs and domestic violence.” Id. In this case, the four-month time period
following the child’s removal runs from April 12, 2017, to August 11, 2017.
As required under Tenn. Code Ann. § 36-1-102(1)(A)(ii), Lesley was removed
from the home as the result of a petition filed in juvenile court in which she was found to
be a dependent and neglected child. Mother argues that DCS failed to make reasonable
efforts to assist her in establishing a suitable home, as required by Tenn. Code Ann. § 36-
1-102(1)(A)(ii). “Reasonable efforts” has been defined to mean “the exercise of
reasonable care and diligence by the department to provide services related to meeting
the needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1); see In re
C.L.M., No. M2005-00696-COA-R3-PT, 2005 WL 2051285, at *9 (Tenn. Ct. App. Aug.
25, 2005) (applying Tenn. Code Ann. § 37-1-166(g)(1) definition to case involving
abandonment by failure to provide suitable home). Thus, counseling services and
recommendations arising therefrom have been found to be “directly related to the
establishment and maintenance of a suitable home.” In re M.F.O., No. M2008-01322-
COA-R3-PT, 2009 WL 1456319, at *5 (Tenn. Ct. App. May 21, 2009). Moreover, “the
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Department does not bear the obligation to establish a suitable home alone, and parents
must make their own efforts at reunification.” In re Matthew T., No. M2015-00486-COA-
R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016) (citing In re C.L.M.,
2005 WL 2051285, at *9) (noting that “reunification is a ‘two-way street’”)). The
Department’s efforts “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 . . . .” Tenn. Code Ann. § 36-1-102(1)(A)(ii)(2016).
The Department asserts, and there is clear and convincing evidence to support a
finding that, it made reasonable efforts to assist Mother to establish a suitable home for
Lesley. The Department’s reasonable efforts included reviewing and discussing the
termination criteria with Mother, creating two permanency plans, supervising visitation,
offering to reimburse her for transportation for visitation, and offering to provide bus
passes. Furthermore, the Department offered to assist Mother with both rent and utilities
at her McElhaney Road home. As detailed above, the Department also provided mental
health and alcohol and drug assessments and made recommendations for further
treatment in those areas, which DCS offered to facilitate.
Mother argues on appeal that the Department “never tried to set up an appointment
before the [family service worker’s] visits, rather she would just drop in and try to catch
[Mother] at the home in Wartburg.” As Ms. McElhaney stated in her testimony, she was
required to do random home visits and random drug screens in order to confirm the
information given to her by the client. If she informed the client before the visit, this
would defeat the purpose of the visit being random. Mother further argues that Ms.
Harris did not testify that there were “concerns or safety issues with the home of Ms.
Mable Webb.” According to Mother’s logic, “one can only assume that the home was
safe and appropriate when there is no evidence indicating anything to the contrary.”
There are several problems with this reasoning. First, Mother moved out of Ms. Webb’s
home because she reported that the house was infested with bed bugs and that Ms. Webb
suffered from dementia. Second, although Ms. Harris met Mother outside Ms. Webb’s
residence, she had doubts as to whether Mother was actually living there. The room
Mother showed her did not appear to be lived in; there were no signs that Mother was
living there. It appeared to Ms. Harris that Mother had just been dropped off at Ms.
Webb’s house by a friend; she was wearing the same clothes she had been wearing the
previous day. We find Mother’s argument unconvincing.
As to the second and third prongs of the statutory analysis, we find clear and
convincing evidence to support the trial court’s findings that Mother failed to make
reasonable efforts to establish a suitable home and that she demonstrated such a lack of
concern for Lesley that it appears unlikely that she will be able to establish a suitable
home at an early date. Although Mother secured housing shortly before the hearing, the
Department had not yet had the opportunity to verify the new residence. Moreover,
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Mother continued to deny her substance abuse problem and failed to follow the necessary
steps to ensure a drug-free home. The trial court found:
Upon testimony of Jennifer Harris, Family Service Worker, and all other
evidence presented, the court finds by clear and convincing evidence that
the Respondent continues to have unstable housing and during the first four
months the child was in custody, [Mother] resided in three different
residences; has failed to follow the recommendations of her alcohol and
drug assessments; failed to even acknowledge substance abuse issues or
submit to random drug screens and pill counts; and has made no reasonable
effort to regain custody of the child.
We conclude that there is clear and convincing evidence to support the trial court’s
determination that Mother’s parental rights should be terminated on the ground of failure
to provide a suitable home.
3. Persistent conditions.
Tennessee Code Annotated section 36-1-113(g)(3) authorizes termination of
parental rights when:
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[.]
Tenn. Code Ann. § 36-1-113(g)(3) (2017) (amended effective Mar. 14, 2018). As this
court has previously stated, the purpose behind this ground is “‘to prevent the child’s
lingering in the uncertain status of foster child if a parent cannot within a reasonable time
demonstrate an ability to provide a safe and caring environment for the child.’” In re
Jamazin H.M., No. W2013-01986-COA-R3-PT, 2014 WL 2442548, at *6 (Tenn. Ct.
App. May 28, 2014) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL
588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).
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The persistence of conditions ground focuses “on the results of the parent’s efforts
at improvement rather than the mere fact that he or she had made them.” In re Audrey S.,
182 S.W.3d 838, 874 (Tenn. Ct. App. 2005). The court must determine “the likelihood
that the child can be safely returned to the custody of the mother, not whether the child
can safely remain in foster care . . . .” In re K.A.H., No. M1999-02079-COA-R3-CV,
2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000). To prove the existence of this
ground, it is not necessary for DCS “to prove that a parent-child relationship cannot be
salvaged” or “to show that a parent is ‘currently harmful’ to a child’s safety or future
emotional stability.” In re Jamazin H.M., 2014 WL 2442548, at *6 (quoting In re K.A.H.,
2000 WL 1006959, at *5). “A parent’s continued inability to provide fundamental care to
a child, even if not willful, whether caused by a mental illness, mental impairment, or
some other cause, constitutes a condition which prevents the safe return of the child to the
parent’s care.” Id.
As the statute provides, the persistent conditions may include not only those that
led to the child’s removal, but also “other conditions that in all reasonable probability
would cause the child to be subjected to further abuse or neglect.” Tenn. Code Ann. §
36-1-113(g)(3)(A). In this case, the persistent conditions include Mother’s substance
abuse and neglect (as evidenced by her failure to provide suitable housing). Although
Mother completed an alcohol and drug assessment, she failed to follow the
recommendations designed to address her prescription drug dependency. The
Department was often unable to find Mother to administer the required drug screens and
pill counts. When Mother did submit to a pill count, she was unable to provide
documentation for her many prescription drugs. A hair follicle drug test in August 2017
was positive for both opiates (codeine) and extended opiates (hydrocodone and
oxycodone). Mother has consistently denied having a substance abuse problem despite
the opinions of evaluators to the contrary.
As to Mother’s failure to secure stable housing, she points out that she did obtain
housing shortly before the hearing. Mother is to be commended for doing so.
Nonetheless, she has moved four times since Lesley has been in DCS custody and was
homeless for a period of time. It remains to be seen whether Mother will live in the new
residence for an extended period. Moreover, at the time of the hearing, the Department
had not determined whether the new residence was satisfactory under DCS standards.
Under subsection (B) of the statute, the Department must prove that “[t]here is
little likelihood that these conditions will be remedied at an early date so that the child
can be safely returned to [Mother] in the near future.” In this context, “the history of past
behavior is relevant to the issue of future behavior.” Dep’t of Children’s Servs. v. C.B.H.,
No. E2003-03000-COA-R3-PT, 2004 WL 1698209, at *2 (Tenn. Ct. App. July 29, 2004).
With respect to Mother’s substance abuse, in particular, DCS has had contact with her
over a long period of time, and she has exhibited a lack of willingness or an inability to
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acknowledge or to address this problem. Thus, there appears to be little chance that she
will remedy this condition in the near future.
As a result, DCS argues, “[t]he continuation of the [Mother] and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable and
permanent home.” Tenn. Code Ann. § 36-1-113(g)(3)(C). The Department asserts that
Lesley has caught up in school by attending a summer program, resides in a stable
environment, and has received good grades in all of her classes. Her safety and stability
would be threatened should she be returned to Mother’s care. Based upon all of the
available evidence, we agree that the evidence preponderates in favor of a finding that the
continuation of the parent-child relationship would diminish Lesley’s chances of
integration into a stable home.
The trial court made the following pertinent findings regarding the persistence of
conditions ground for termination:
In this case, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(3), the
Court finds that there is clear and convincing evidence that the conditions
which led to the child’s removal from [Mother’s] home still persist, and
prevent the child’s safe return to [Mother’s] care.
The child entered state custody on April 11, 2017, pursuant to bench
order of custody which found probable cause that the child was dependent
and neglected due to significant truancy and shortly after the bench order
the issue of drug and alcohol abuse arose as well as lack of suitable
housing. The child was adjudicated dependent and neglected on May 10,
2017, based, in part, on a stipulation by [Mother] that the child was
dependent and neglected in [her] care due to significant truancy and
substance abuse issues. The child has remained in foster care continuously
since April 11, 2017.
....
. . . During the 11 months that this child was in state custody,
[Mother] did not: follow the recommendations of her alcohol and drug
assessment; has not maintained stable housing. Instead of improving their
personal condition, [Mother] continues to abuse her prescription drugs and
continues to deny there is any abuse to address; and has been bouncing
from residence to residence since the child entered custody.
Mother’s arguments on appeal include the assertion that there is no evidence of
her abuse of prescription drugs. We disagree. The record includes the results of a hair
follicle drug test showing the presence of multiple opiates and Mother’s failure to
document the many prescription drugs she had in her possession. Furthermore,
prescription records for several months in 2017 showed prescriptions for opiates from
multiple doctors.
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We have determined that there is clear and convincing evidence to support the trial
court’s determination that Mother’s parental rights should be terminated on the ground of
persistence of conditions.
B. Best Interest—
Having determined that clear and convincing evidence exists to terminate
Mother’s parental rights on three different grounds, we next consider whether the trial
court properly determined that termination is in the child’s best interest. See Tenn. Code
Ann. § 36-1-113(c)(2). After a court finds that clear and convincing evidence exists to
support a ground for termination, the child’s interests diverge from those of the parent
and the court focuses on the child’s best interests. In re Audrey S., 182 S.W.3d at 877. A
finding that at least one ground for termination of parental rights exists does not
necessarily require that a parent’s rights be terminated. Id. Because some parental
misconduct is redeemable, our termination of parental rights statutes recognize that
“terminating an unfit parent’s parental rights is not always in the child’s best interests.”
Id.
The facts a court considers in its best interest analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In re Kaliyah S.,
455 S.W.3d at 555. Once a court makes the underlying factual findings, it should
“consider the combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interest.” Id.
The non-exclusive factors a trial court is to consider in determining whether
terminating a parent’s rights to a child is in the child’s best interest are set forth in Tenn.
Code Ann. § 36-1-113(i):
(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;
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(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.
Every factor need not be applicable for the trial court to determine it is in the best interest
of a child for a parent’s rights to be terminated. See In re Audrey S., 182 S.W.3d at 878.
The best interest analysis is “a fact-intensive inquiry” requiring the court to consider the
unique facts of the case “from the child’s, rather than the parent’s, perspective.” Id.
(citing White v. Moody, 171 S.W.3d at 194).
In concluding that termination of Mother’s rights was in the best interest of the
child, the trial court found, in pertinent part:
[T]he Court looks to Tennessee Code Annotated 36-1-113, and as to
subfactor (1), the Court finds that [Mother] has not made such an
adjustment of circumstance, conduct or conditions as to make it safe or in
the child’s best interest to be in the home; does find that the parent has
failed to effect a lasting adjustment after reasonable efforts by available
social services agencies for such a duration of time that a lasting adjustment
does not reasonably appear possible. The Court does, however, find that
[Mother] has maintained somewhat regular visitation with the child. It’s
not been perfect, but she has done decently well in maintaining that, that
there is a meaningful relation between Lesley . . . and [Mother]. It’s
unclear as to whether a change of caretaker or custodian would cause any
emotional or psychological or medical condition to the child. Number 6 is
not applicable. The Court finds that the physical environment of the home
is not healthy and safe; that, quite frankly, three weeks does not show
stability of housing; that there is, in the Court’s position, still abuse of
controlled substances, despite prescriptions, that would likely render the
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parent to be unable to care for the child in a safe, stable manner, because,
quite frankly, nothing has changed from the time that the child came into
custody in that aspect. The Court finds that the parent’s mental and
emotional status would be detrimental to the child at this point due to her
unwillingness and inability to address her underlying substance abuse
issues; and that Number 9 is not applicable. The Court also finds that due
to severe lack of supervision in the past and the fact that she is now in a
home with structure and stability and she now has significant improvement
in attendance and very good grades, and, quite frankly, in addition to that,
the Court finds that the statement by [Mother], referring to a previous case,
sums up the duality of [Mother’s] goals in this case. She stated that “I got
my daughter back and kept my medicines too.” The Court finds that that
sums up the issue in this case, that she has competing interests. She loves
her daughter, but she doesn’t want to give up the medicine that clearly, the
Court finds, has severely affected [Mother’s] ability to parent.
The trial court concluded that termination of Mother’s parental rights was in the best
interest of the child.
The evidence does not preponderate against the trial court’s findings of fact, and
we conclude that those facts constitute clear and convincing evidence to support the trial
court’s determination that the termination of Mother’s parental rights is in the child’s best
interest.
CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, Joyce A., and execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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