In Re H. S.

03/20/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 1, 2019

IN RE H.S.

Appeal from the Juvenile Court for Williamson County

No. 35799 Sharon Guffee, Judge

___________________________________

No. M2019-00808-COA-R3-PT

___________________________________

The Department of Children’s Services filed a petition to terminate the parental rights of

E.R. (mother) and T.S. (father) with respect to H.S. (the child). The trial court found

clear and convincing evidence to terminate mother and father’s parental rights on

multiple grounds. By the same quantum of proof, the court determined that termination

of mother and father’s parental rights is in the best interest of the child. Only mother

appeals. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court in which CARMA DENNIS

MCGEE, J., joined. ANDY D. BENNETT, J., filed a separate opinion concurring in part and

dissenting with respect to Part IV.C of the majority opinion.

Jennifer L. Honeycutt, Franklin, Tennessee, for the appellant, E.R.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant

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

Services.

Karen Johnson, Brentwood, Tennessee, Guardian Ad Litem.

OPINION

I.

A bench trial took place on February 11, February 13, March 25, and April 17,

2019. The court heard testimony from mother, father, foster mother, Tamera Stamps (a

DCS family service worker), Katie Nabors (a DCS social services team leader), Amy

Finnegan (a court-appointed special advocate), and Khylee Harshman (a resource

coordinator for Omni Visions, which provided supervised visitation).

At the time of trial, mother and father had known one another for about eleven

years. They were romantically involved “for a while” but experienced several break-ups.

H.S. is the youngest of their four children.1 Last year, this Court affirmed the termination

of mother and father’s parental rights with respect to the three older children. In re Trey

S., No. M2018-01979-COA-R3-PT, 2019 WL 2539204 (Tenn. Ct. App., filed June 20,

2019).

In June 2016, before H.S. was born, DCS received a referral stating that the three

older children were exposed to drugs and suffering from various kinds of neglect. At the

time, mother and the three older children were living in a domestic violence shelter.

According to Ms. Finnegan, mother said that she and father “had a history of fighting”

and “that there were several black eyes.” Mother said that she checked into the shelter

after father pushed her down and her face hit the footboard of their bed. At the shelter,

mother tested positive for methamphetamine, amphetamine, and buprenorphine. Mother

admitted to using cocaine a few weeks earlier.

On June 20, 2016, the three older children were removed from mother and father’s

custody and placed in a foster home. Mother and father entered into a permanency plan

with DCS. For several months, they completed many of the plan’s requirements. Both

parents were passing drug screens. In December 2016, mother began treatment at a

Suboxone clinic in order to eliminate her dependence on opiates.

H.S. was born on May 16, 2017. Just a couple of weeks later, the three older

children were returned to mother and father for a trial home placement. During the trial

home placement, mother inadvertently called Ms. Finnegan and left a message on her

phone. According to Ms. Finnegan, mother was screaming and swearing at the children.

When Ms. Finnegan visited the home the following day, mother stated that she was

“super anxious and overwhelmed” because she was not getting enough help from family

members. Mother also expressed concern that father may have been using drugs.

Everyone in the home had lice. The three older children were fighting with one another.

Ms. Finnegan testified that she had “just never seen them act that way when they were in

their resource home.” Social workers tried to help mother enroll the three older children

in a summer day camp. Before that could be arranged, the trial home placement was

terminated due to parents’ criminal behavior. Father was arrested for manufacturing

large quantities of controlled substances. Mother tested positive for methamphetamine.

On July 6, 2017, all four children were removed from parents’ custody. The three

older children returned to the foster home. The foster parents initially declined to accept

1

Mother also has two adult sons.

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custody of H.S. because they were concerned about not having enough space. Pursuant

to an “immediate protection agreement,” H.S. was placed with father’s eighteen-year-old

cousin, who was living with another relative.

On July 11, 2017, DCS filed a petition to adjudicate dependency and neglect.

Mother and father waived the preliminary hearing. On July 20, 2017, the trial court

entered an order which provided that the immediate protection agreement would remain

in effect pending further orders from the court. The court also instructed the parties to

ensure that the child was safe in her current placement. On September 12, 2017, the child

was adjudicated dependent and neglected because of her proximity to substance abuse

and domestic violence. After the adjudicatory hearing, the child was placed in the same

foster home as her three older siblings.

At trial, foster mother testified that she and her husband moved into a five-

bedroom home that could accommodate all four children. Foster parents “absolutely”

want to adopt H.S. and her siblings. Foster mother testified that the three older children

are “very protective” of H.S. and have a “very deep bond.” The older siblings taught

H.S. to call foster parents “mom” and “dad.” According to foster mother, the older

children “would ask us regularly if [H.S.] was safe[.]” One child said that during the trial

home placement mother and father were fighting and busted down a door that landed next

to H.S.’s bed.

In August 2017, mother tested positive for methamphetamine. She also moved

into a trailer. Aside from the trailer’s close proximity to an abandoned, unfinished home,

there are no environmental concerns. In September 2017, mother and father attended a

county fair with some friends. Afterward, there was a physical altercation, which

resulted in father’s arrest on domestic violence charges.2 Mother drank so much alcohol

that day that she could not remember important details about the incident. In October

2017, mother missed a drug screen. In November 2017, she tested positive for

methamphetamine.

In December 2017, DCS filed a petition to terminate mother and father’s parental

rights with respect to the three older children. Following a bench trial, the court entered

an order terminating mother and father’s parental rights to the three older children. Both

parents appealed, but this Court affirmed. In re Trey S., 2019 WL 2539204, at *21.

DCS filed a petition to terminate mother and father’s parental rights to H.S. on October

24, 2018.

In the months leading up to the filing of the petition, mother made some positive

steps toward regaining custody of H.S. For example, mother obtained stable

2

Those charges were eventually dropped.

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employment, made regular child support payments, attended all supervised visitation,

passed drug tests and pill counts, completed an alcohol and drug assessment, attended

individual counseling, and completed parenting classes.

However, mother did not abstain from alcohol, as recommended by her alcohol

and drug assessment. Instead, mother’s alcohol consumption increased, especially after

the termination of her parental rights with respect to the three older children. Mother

admitted that she began drinking at home whenever she was feeling “upset” and

“defeated.” At times, she “felt like [she] couldn’t breathe.” The frequency and volume

of mother’s alcohol consumption depended on “how bad [she] fe[lt]” on a particular day.

On June 21, 2018, Ms. Finnegan conducted a home visit around 11:00 a.m. Ms.

Finnegan thought she smelled alcohol on mother’s breath. In July 2018, mother appeared

for a court hearing with a blood alcohol content of 0.12. Mother also tested positive for

alcohol at another court hearing in November 2018. Mother admitted that she began

drinking more in the months leading up to trial. When asked if she had turned to alcohol

as a coping mechanism, mother responded, “I don’t even know how I’m coping. . . . I

don’t think I’m coping at all, but I’m just trying to get through it.” Mother said her

doctor was more concerned about her mental health than her consumption of alcohol. At

the time, mother had a prescription for two anti-anxiety medications – Celexa and

Vistaril. Mother testified that she felt like the medication was working, but she admitted

that she still felt “real anxious.” Mother was also still taking Suboxone.

Additionally, mother did not have a reliable form of transportation because her

driver’s license was suspended. Although mother was able to arrange transportation to

work and visits with the children, it is clear that father has been at least one source of her

transportation, because father drove mother to court twice during the trial.

Mother and father never completed couples counseling, which was required by the

permanency plan if mother and father intended to stay together. Several witnesses

characterized mother and father’s romantic relationship as “on-again off-again.”

According to Ms. Stamps, mother “would say that she doesn’t want to be with [father],

but then within the same conversation, she had mentioned, well, she would be open to

doing counseling with him for the kids.” In September 2017, mother and father attended

a county fair together, which led to father’s arrest on domestic violence charges. In

January 2018, at a foster care review board meeting, father expressed his desire to reunite

with mother; mother was “noncommittal.” Ms. Finnegan testified that in January 2019,

mother’s Facebook account indicated that father was “spending the night [with mother]

just recently until she found out that he was cheating on her again[.]” Mother denied it,

claiming that her Facebook account was hacked. Father admitted that he and mother

have had sex “a few times” since H.S. was removed, but he denied spending the night

with mother shortly before trial. Father also testified:

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I’m always going to be in her life. I mean, whether together

or not, I’m going to help her if I can. It doesn’t mean we’re

in a relationship, but if she needs my help, I’ll be there for

her.

On March 12, 2019, during the middle of trial, mother checked herself into an in-

patient treatment facility. Mother returned to court on April 17, 2017, for the last day of

trial. Mother testified that she completed the rehabilitation program and would not test

positive for drugs or alcohol. Mother also testified that she had plans to continue

treatment for eighteen months at another facility in Alabama. Mother said that she “just

want[s] to start over” and that she “want[s] to get away from everybody that’s on drugs,

Suboxone, anything.” According to mother, the Alabama treatment facility would allow

her to move into a sober living home after thirty to forty-five days. At that point, she

would be allowed to keep children. Mother testified that maternal grandmother was

willing to keep H.S. until mother could move into the sober living home. Mother also

testified regarding various changes in her medication. She had weaned herself off

Suboxone and had changed her anti-anxiety medications. At the end of trial, mother

testified as follows:

It feels great. Even if – even if I don’t get [H.S.] back or win

the appeal, I mean, I want to be better for them when they – if

they find me when they’re 18 or if I get to see them, if the

[foster parents] decide I get to. I just want to be better,

regardless of the outcome of this.

The trial court commended mother for her progress and encouraged her to

continue seeking appropriate treatment. Ultimately, however, the court entered an order

terminating mother and father’s parental rights. Mother timely appealed.

II.

Mother raises the following issues:

Whether the trial court properly determined that grounds

existed to terminate [m]other’s parental rights.

Whether the trial court properly determined that termination

of [m]other’s parental rights was in the best interest of the

child.

III.

A parent has a fundamental right, based on both the federal and state constitutions,

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to the care, custody, and control of his or her child. Stanley v. Ill., 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). Although this right is fundamental, it is not

absolute. The State may interfere with a parent’s rights in certain circumstances. In re

Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which

termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g) (Supp. 2019).

Because 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), 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 the Matter of 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

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 Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).

Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and

convincing standard establishes that the truth of the facts asserted is highly probable.” In

re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

Once a ground for termination is established by clear and convincing evidence, the

trial 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)). “The best interest[ ] 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., filed June 26, 2006).

We are required to review all of the trial court’s findings with respect to grounds

and best interest. 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.”).

The Tennessee Supreme Court has stated our standard of review:

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

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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.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard

witnesses, especially where issues of credibility and weight of oral testimony are

involved, considerable deference must be accorded to . . . the trial court’s factual

findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,

at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery

Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

IV.

The trial court found clear and convincing evidence to terminate mother’s parental

rights on three grounds: (A) abandonment by failure to provide a suitable home; (B)

persistent conditions; and (C) failure to manifest an ability and willingness to assume

custody of the child. We discuss each ground in turn.

A.

Tennessee law allows for the termination of parental rights on the ground of

abandonment. Tenn. Code Ann. § 36-1-113(g)(1). A parent can abandon a child in

several ways, including by failing to provide a suitable home. In order to terminate

mother’s parental rights on this ground, DCS was required to present clear and

convincing evidence of the following elements:

(a) The child has been removed from the home or the physical

or legal custody of a parent . . . by a court order at any stage

of proceedings in which a petition has been filed in the

juvenile court alleging that a child is a dependent and

neglected child, and the child was placed in the custody of the

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department or a licensed child-placing agency;

(b) The juvenile court found . . . that the department or a

licensed child-placing agency made reasonable efforts to

prevent removal of the child or that the circumstances of the

child’s situation prevented reasonable efforts from being

made prior to the child’s removal; and

(c) For a period of four (4) months following the physical

removal, the department or agency made reasonable efforts to

assist the parent . . . to establish a suitable home for the child,

but that the parent . . . ha[s] not made reciprocal reasonable

efforts to provide a suitable home and ha[s] 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 . . . in establishing a suitable home

for the child shall be found to be reasonable if such efforts

equal or exceed the efforts of the parent . . . toward the same

goal, when the parent . . . is aware that the child is in the

custody of the department[.]

Tenn. Code Ann. § 36-1-102(1)(A)(ii) (effective July 1, 2018 to March 21, 2019).3

With respect to section (a), it is undisputed that, on July 6, 2017, the child was

removed from mother’s custody and placed with a family member pursuant to an

immediate protection agreement. On July 11, 2017, DCS filed a petition to adjudicate

dependency and neglect. The court entered an order on July 20, 2017, which provided, in

part, that “The Immediate Protection Agreement shall remain in effect pending further

orders of the Court.” After an adjudicatory hearing on September 12, 2017, the child

entered DCS custody and was placed in a foster home.

With respect to section (b), the trial court made the following findings:

The Department made reasonable efforts to prevent the

removal of this child by providing services to both parents in

the open case with the child’s older siblings who were on a

trial home placement with both parents at the time of the

removal. Those services included developing permanency

plans, drug screens for both parents, parenting classes,

clinical assessment, and domestic violence classes.

3

We apply the statute in effect when the petition to terminate parental rights was filed.

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Most of the services identified by the court were provided to the parents before H.S. was

born. These services are examples of DCS’s reasonable efforts to prevent the removal of

the three older children, not H.S. Nevertheless, the requirements of section (b) are still

satisfied because father’s arrest and mother’s use of methamphetamine during the trial

home placement constitute “circumstances . . . [that] prevented reasonable efforts from

being made prior to the child’s removal[.]” Tenn. Code Ann. § 36-1-102(1)(A)(ii)(b).

Mother basically conceded this point when she and father entered into an immediate

protection agreement, which allowed a family member to obtain custody of H.S.

With respect to section (c), the trial court made the following findings:

The four month period after the removal of the child is July

18, 2017 to November 18, 2017. The Department made

reasonable efforts to assist the parents in establishing a

suitable home by continuing to drug screen parents, including

providing hair follicle tests, non self-reporting alcohol and

drug assessments, doing pill counts, parenting assessment and

parenting education, individual counseling and clinical

assessment. The department was ready to provide couples

counseling for parents but w[as] unable to determine if the

parents were together throughout the course of this case.

* * *

Mother has made some reasonable efforts to establish a

suitable home for the child during the four month period after

removal in that she has maintained contact with DCS and had

a stable address. She continued her substance abuse

treatment during this time with her suboxone clinic.

However, she tested positive in August and November 201[7]

for meth, began abusing alcohol as evidenced by the incident

at the fair in September 201[7] and continued to increase her

alcohol abuse as this progressed.

Mother’s efforts do not demonstrate a lack of concern for the

child to the same extent as Father but the reality is, Mother’s

alcohol abuse (evidenced by coming to court under the

influence in July 2018 and admitting to increased alcohol

abuse up until the date of trial) has prevented Mother from

providing a suitable home at an early date. Even with

Mother’s recent (during the trial) in-patient treatment, she has

a long way to go to maintain consistent sobriety.

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The Court finds the efforts by the Department exceed those

efforts by Mother towards providing a suitable home.

(Emphasis in original.)

The evidence preponderates in favor of the trial court’s finding that DCS made

reasonable efforts to assist mother in establishing a suitable home during the four-month

period identified by the court.4 Mother offers no argument to the contrary and for good

reason. We have long held that providing drug screens, maintaining consistent

communication with a parent, coordinating alcohol and drug assessments, and offering

counseling services constitute reasonable efforts to assist a parent in establishing a

suitable home. See, e.g., In re Nevada N., 498 S.W.3d 579, 596 (Tenn. Ct. App. 2016).

At the very least, DCS’s efforts “equal or exceed the efforts of [mother.]” See Tenn.

Code Ann. § 36-1-102(1)(A)(ii)(c). From July 18, 2017, to November 18, 2017, mother

failed drug screens, failed to start couples counseling, and continued to associate with

father despite a history of substance abuse and domestic violence. Cf. In re Hannah H.,

No. E2013–01211–COA–R3–PT, 2014 WL 2587397, at *9 (Tenn. Ct. App., filed 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 requires more than a proper

physical living location.’ It requires that the home be free of drugs and domestic

violence.”)).

The evidence also preponderates in favor of the trial court’s finding that mother

has made some reasonable efforts to provide a suitable home but has still “demonstrated a

lack of concern for the child to such a degree that it appears unlikely that [she] will be

able to provide a suitable home for the child at an early date.” Tenn. Code Ann. § 36-1-

102(1)(A)(ii)(c). Like the trial court, we commend mother for her recent decision to seek

additional treatment for her substance abuse and mental health issues. Nonetheless, the

court appropriately ruled that mother’s sobriety on the last day of trial is not enough to

show that mother will be able to provide a suitable home “at an early date.” Compare In

re L.J., No. E2014–02042–COA–R3–PT, 2015 WL 5121111, at *7 (Tenn. Ct. App., filed

Aug. 31, 2015) (holding that mother’s ability to obtain housing two weeks before the

final trial date was “too little, too late” and did not demonstrate mother’s ability to

provide a suitable home “at an early date”), with In re Serenity W., No. E2018-00460-

COA-R3-PT, 2019 WL 511387, at *5 (Tenn. Ct. App., filed Feb. 8, 2019) (holding that

mother demonstrated that she could provide a suitable home “at an early date” because

she had completed multiple rounds of rehabilitation, attended counseling, and “had been

4

As we have explained in other cases, the statute under present consideration “does not limit the

window during which DCS may satisfy its obligation to make reasonable efforts to the four-month period

directly following statutory removal.” In re Jakob O., No. M2016–00391–COA–R3–PT, 2016 WL

7243674, at *13 (Tenn. Ct. App., filed Sept. 20, 2016).

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drug free for several months”). Accordingly, we hold that there is clear and convincing

evidence to terminate mother’s parental rights on this ground.

B.

Tenn. Code Ann. § 36-1-113(g)(3) provides for the termination of parental rights

on the ground of persistent conditions. When the petition to terminate parental rights was

filed, the statute required a petitioner to present clear and convincing evidence of the

following circumstances:

(A) The child has been removed from the home or the

physical or legal custody of a parent . . . for a period of six (6)

months by a court order entered at any stage of proceedings in

which a petition has been filed in the juvenile court alleging

that a child is a dependent and neglected child, and:

(i) The conditions that led to the child’s removal still persist,

preventing the child’s safe return to the care of the parent . . .

or other conditions exist that, in all reasonable probability,

would cause the child to be subjected to further abuse or

neglect, preventing the child’s safe return to the care of the

parent . . . ;

(ii) 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 . . . in the near future; and

(iii) The continuation of the parent . . . 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)(A) (effective July 1, 2018 to June 30, 2019). The

purpose of allowing the termination of parental rights under these circumstances 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 Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012) (citations

omitted). “The failure to remedy the conditions which led to the removal need not be

willful.” Id.

It is undisputed that the child has been removed from the home of mother for more

than six months and that removal was due to the child’s proximity to substance abuse and

domestic violence. In her brief, mother argues that “all conditions have been remedied.”

Once again, mother emphasizes the fact that she recently completed in-patient

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rehabilitation and was sober on the last day of trial. Mother concedes that she and father

never completed couples counseling. However, mother argues that DCS failed to

produce clear and convincing evidence that mother and father were currently in a

romantic relationship or would likely resume their romantic relationship in the future.

The trial court ruled that “both parents’ substance abuse is the main reason the

child would be subject to further abuse and neglect.” The court’s order sets forth a

detailed summary of mother’s “six year pattern of serious drug use of multiple controlled

substances[,] including cocaine (injected for a year), opiates (oxycodone, opana),

methamphetamine[,] and most recently, alcohol.” After reciting mother’s extensive

history of substance abuse, the court again acknowledged mother’s recent attempts to

achieve sobriety; nevertheless, the court concluded that “it will likely take a long period

of sobriety before [mother] is in a healthy place.”

The trial court stated that “it does not appear the parents are currently together,”

but the court expressed concern that mother and father never completed couples

counseling and continued to associate with one another. Specifically, the court noted the

fact that father has provided mother with transportation. Father also testified that he

would always be in mother’s life.

Finally, the trial court found that continuation of the parent-child relationship

would greatly diminish the child’s chances of early integration into a safe, stable, and

permanent home. The court noted that the child has been in the custody of the foster

parents since she was three months old. Mother has never had unsupervised time with

the child. By all accounts, the child is bonded to her siblings and is thriving in the foster

home. The foster parents already have custody of the siblings and intend to adopt them.

Continuation of the parent-child relationship would deny H.S. the opportunity to enjoy

the same stability as her siblings.

The evidence preponderates in favor of the trial court’s finding that the conditions

which led to the child’s removal still persist. With respect to substance abuse, “Mother

seems to have substituted alcohol for drugs, and Mother has not presented evidence

showing that she has addressed her struggles with alcohol.” In re Trey S., 2019 WL

2539204, at *14. As previously discussed, being sober on the last day of trial is not

enough. With respect to the threat of domestic violence, the evidence is a bit weaker. It

is undisputed that mother and father never attended couples counseling and continued to

be romantically involved during the early stages of this case; however, it is unclear

whether mother and father have been romantically involved in the months leading up to

trial or whether they will resume their relationship in the future. Both parents testified

that they were not in a relationship and that any future contact would not be romantic in

nature. However, it seems that the trial court has made an implicit credibility

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determination to the contrary.5 See In re Wyatt S., No. E2012–00539–COA–R3–JV,

2012 WL 5482215, at *9 (Tenn. Ct. App., filed Nov. 13, 2012) (implicit credibility

determination); Taylor v. McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL

2971767, at *4 (Tenn. Ct. App., filed Aug. 5, 2008) (implicit credibility determination).

Because the trial court had the opportunity to observe the parents’ in-person testimony,

we will not disturb that credibility determination.

For the reasons discussed in the previous section of this opinion, the evidence also

preponderates in favor of the court’s finding that there is little likelihood that these

conditions will be remedied “at an early date” such that it would be safe to return the

child to mother. Given the child’s close bond with the foster parents and her siblings, as

well as mother’s limited interactions with the child, the evidence also preponderates in

favor of the court’s finding that continuation of the parent-child relationship will greatly

diminish the child’s chances of early integration into a safe and stable home.

We hold that the facts found by the trial court amount to clear and convincing

evidence that mother’s parental rights can be terminated on the ground of persistent

conditions.

C.

Finally, the trial court found grounds to terminate mother’s parental rights because

the court determined that there was clear and convincing evidence that mother

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 [mother’s] legal and physical custody would pose a risk of

substantial harm to the physical or psychological welfare of

the child[.]

Tenn. Code Ann. § 36-1-113(g)(14). As we have previously explained,

this ground requires DCS to prove two elements by clear and

convincing evidence. Tenn. Code Ann. § 36–1–113(c)(1),

(g)(14). First, DCS must prove that Mother failed to manifest

“an ability and willingness to personally assume legal and

physical custody or financial responsibility of the child[ren].”

Tenn. Code Ann. § 36–1–113(g)(14). DCS must then prove

5

In the prior termination proceeding involving these parents, the same trial judge made an

express credibility determination: “The Court cannot believe a single word either of these parents say in

regards to their relationship or their substance abuse.” In re Trey S., 2019 WL 2539204, at *13.

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that placing the children in Mother’s “legal and physical

custody would pose a risk of substantial harm to the physical

or psychological welfare of the child[ren].” Id.

In re Maya R., No. E2017–01634–COA–R3–PT, 2018 WL 1629930, at *7 (Tenn. Ct.

App., filed Apr. 4, 2018).

With regard to the first element, the trial court determined that “[w]hile Mother

has indicated a willingness to assume custody of the child by visiting and completing

many of the tasks on the permanency plan, she has not shown an ability to assume

custody due to her substance abuse.” (Emphasis in original.) The court reiterated that

mother’s substance abuse, particularly her dependence on alcohol, makes her unable to

assume custody of the child.

There is a split of authority as to whether parental rights can be terminated on this

ground when a parent has manifested a willingness, but not the ability, to assume custody

of a child. Compare In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL

3058280, at *12-14 (Tenn. Ct. App., filed June 20, 2018) (termination allowed), no perm.

app. filed, and In re Neamiah R., No. E2017-02000-COA-R3-PT, 2018 WL 2331868, at

*7 (Tenn. Ct. App. May 23, 2018) (termination allowed), no perm. app. filed, with In re

Ayden S., No. M2017–01185–COA–R3–PT, 2018 WL 2447044, at *7 (Tenn. Ct. App.,

filed May 31, 2018) (termination not allowed), no perm. app. filed. DCS asks us to

follow the holding of In re Amynn K., in which this Court held that parental rights can be

terminated if the petitioner shows that a parent has failed to manifest an ability to assume

custody of a child, despite having a willingness to do so. 2018 WL 3058280, at *12-14.

After careful consideration of the conflicting authorities, we accept DCS’s

invitation to follow the holding of In re Amynn K. In that case, the Court carefully

applied well-established rules of statutory construction. The Court’s interpretation of

Tenn. Code Ann. § 36-1-113(g)(14) also closely parallels the Supreme Court’s

interpretation of Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv), a similarly-worded ground

for terminating a putative father’s parental rights.6 See In re Bernard T., 319 S.W.3d

586, 604-05 (Tenn. 2010) (concluding that the ground was proven where the father had

“manifested a commendable willingness to assume legal custody of all the children” but

did not “presently have the ability to assume legal and physical custody of any of the

children.”).

Returning to the present case, the evidence preponderates in favor of the trial

court’s finding that mother was willing, but not able, to assume custody of the child.

6

Under this ground, a putative father’s parental rights can be terminated when: “The person has

failed to manifest an ability and willingness to assume legal and physical custody of the child[.]” Tenn.

Code Ann. § 36-1-113(g)(9)(A)(iv).

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Mother has complied with many requirements of the permanency plan. She even

checked herself into an in-patient treatment facility during the middle of trial. These

actions, as well as mother’s testimony, indicate that she is willing to assume custody of

H.S. Nevertheless, as already discussed in this opinion, mother did not have the ability to

assume custody of the child at the time of trial.

With regard to the second element of this ground, the trial court stated the

following:

“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 contact. However, the use of the

modifier ‘substantial harm’ indicates two things. First, it

connotes 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).

The Court has no trouble at all finding that placing the child

in Mother’s legal and physical custody at this time would

pose a risk of substantial harm to the physical or

psychological welfare of the child. Mother does not have a

period of sustained sobriety for many, many years. Even

before her older children were placed in DCS custody in

2016, she was abusing drugs for several years.

Based on Mother’s history of substance abuse and collateral

criminal activity, the likelihood of a relapse is extremely high

and poses a risk of substantial harm to this child. While the

Court is hopeful Mother is able to continue her treatment and

be successful in her sobriety for her own well-being, it is not

likely this will happen in the near future to benefit this child.

Mother’s brief contains the conclusory assertion that DCS failed to prove that

returning the child to mother would pose a risk of substantial harm. No explanation is

provided. In our view, the evidence preponderates in favor of the trial court’s finding

that the child would be at risk of substantial harm because of mother’s pattern of

substance abuse. Additionally, Ms. Harshman, a resource coordinator for Omni Visions,

testified that it would be “traumatic” for the child to be removed from the home of her

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foster parents and her siblings. This is the only home H.S. has ever known. The

psychological harm that would result from her removal is at least as important as the

potential physical harm that could be caused by the child’s proximity to substance abuse.

We agree with the trial court that the foregoing facts clearly and convincingly

support termination of mother’s rights pursuant to Tenn. Code Ann. § 36-1-113(g)(14).

V.

A.

Because at least one statutory ground warrants the termination of mother and

father’s parental rights, we now focus on whether termination is in the best interest of

H.S. We are guided by the statutory factors set forth in Tenn. Code Ann. § 36-1-113(i):

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 interests 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

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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.

“Ascertaining a child’s best interests does not call for a rote examination of [these] nine

factors and then a determination of whether the sum of the factors tips in favor of or

against the parent. The relevancy and weight to be given each factor depends on the

unique facts of each case.” In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005).

Most importantly, “[t]he child’s best interest must be viewed from the child’s, rather than

the parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)

(citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

B.

The trial court expressly considered the factors recited above. Because the court’s

findings are supported by the record, we quote at length from the court’s discussion7:

(1) Whether the parent 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.

* * *

MOTHER: While Mother has made some good progress on

the requirements asked of her, she continues to struggle with

substance abuse to the extent that it is unsafe for the child to

be returned to her home. Since this is the paramount reason

7

We omit the court’s consideration of the best interest factors as they relate to father.

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the child was placed into foster care, it is the priority outcome

that is missing from Mother’s circumstances. It remains

unclear whether she will be able to make a lasting adjustment

in the near future. This uncertainty is what the child is

trapped in.

The Court places great weight on this factor for finding

termination is in the [child’s] best interest.

(2) Whether the parent 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.

* * *

MOTHER: DCS has assisted with numerous random drug

screens and payment of hair follicle tests and an alcohol and

drug assessment for Mother (September 2017). The

Department provided a clinical assessment for Mother and

parenting assessment. They provided supervised visitation

both through a provider agency and DCS caseworkers for two

and a half years. They have maintained constant contact with

Mother and provided support for her whenever necessary.

Despite all of this, Mother continues to struggle with

substance abuse, substituting alcohol for drugs as recently as

during the trial.

(3) Whether the parent has maintained regular visitation or

other contact with the child.

* * *

MOTHER: Mother has consistently visited with the child

during the entirety of the case. However, Mother has not had

unsupervised visits or overnight visits and there were no

recent recommendations that she have this.

(4) Whether a meaningful relationship has otherwise been

established between the parent and the child.

* * *

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MOTHER: While Mother is regularly visiting, it cannot be

said there is a meaningful relationship with the child. She is

very bonded with the foster parents and her siblings.

(5) The effect a change of caretakers and physical

environment is likely to have on the child’s emotional,

psychological and medical condition. BOTH PARENTS:

The Court places great weight on this factor. The only family

this child has known is her foster family. The foster parents

love her unconditionally and want to adopt her and her

siblings. They have dramatically changed their lives for this

child. She is safe and secure. The Court fears the outcome

would be EXACTLY the same as the failed trial home visit if

the [child] w[as] to return home at this point. Mother’s lack

of a sustained period of sobriety prevents a healthy and safe

environment with Mother.

(6) Whether the parent or other person residing with the

parent has shown brutality, physical, sexual emotional or

psychological abuse or neglect toward the child or another

child or adult in the family or household. BOTH PARENTS:

The proof is clear there were many acts of serious domestic

violence in the home between the parents. They fought and

argued a lot. Mother admitted the children saw it.

Fortunately this child was removed before this could have a

lasting effect on her. The Court finds the likelihood the

parents will be or are together to be great without addressing

the underlying issue of domestic assault.

(7) Whether the physical environment of the parent’s home is

healthy and safe. Whether there is criminal activity in the

home, or whether there is such use of alcohol, controlled

substances as may render the parent consistently unable to

care for the child is a safe and stable manner.

* * *

MOTHER: While Mother’s home was physically safe, it is

not just the bricks and mortar. It is the unhealthy

environment Mother is trapped in because of her substance

abuse of (most recently) alcohol. The Court has no trouble

finding Mother is unable to care for this child at this time

after over two years of continuous substance abuse treatment

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and recent in-patient treatment.

(8) Whether the parent’s mental and/or emotional status

would be detrimental to the child or prevent the parent from

effectively providing safe and stable care and supervision for

the child.

* * *

MOTHER: Mother has likely been self-medicating for years

due to her anxiety and possibly undiagnosed mental illness.

Even after a year of treatment, she has been unable to

maintain sobriety. Her current regular alcohol use to the

extent that she would come to court under the influence, tells

the Court she is nowhere near ready mentally or emotionally

to provide a safe home for the children.

(9) Whether the parent has paid child support consistent with

the child support guidelines.

* * *

MOTHER: Mother has been paying child support through

wage assignment garnishment and income tax garnishment.

She admits she owes some arrears but the amount is not

significant.

(Emphasis in original.)

Balancing these statutory factors, and considering the situation from the child’s

perspective, the trial court concluded that termination of mother’s parental rights is in the

best interest of H.S.

The court appropriately placed “great weight” on factors (1) and (5). Factor (1)

concerns mother’s failure to make an adjustment of circumstance to the extent that

returning the child would be safe. As the court noted, this factor is particularly relevant

because mother’s substance abuse was one of the primary reasons the child was removed

in the first place. Although mother exchanged drugs for alcohol, mother continued to

struggle with substance abuse throughout this case. Mother only obtained sobriety on the

last day of trial and, at the time, it was unclear whether that adjustment would be a lasting

one.

Factor (5) concerns the effect a change of caretakers would have on the child’s

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emotional, psychological and medical condition. The importance of this factor cannot be

understated. H.S. has been in the custody of foster parents since she was three months

old. She has a “deep bond” with her siblings and her foster parents, who she calls “mom”

and “dad.” Mother and father’s parental rights to the three older children have already

been terminated, and foster parents wish to adopt all four children. See In re Mariah H.,

No. E2016–02091–COA–R3–PT, 2017 WL 2829820, at *16 (Tenn. Ct. App., filed June

30, 2017) (holding that a change of caretakers would have an adverse effect on the child

where “[t]he [c]hild has remained in the same foster home with two of her biological

half-siblings since shortly after she was born” and “is bonded to the foster parents, who

have expressed a desire to adopt her.”).

As the trial court noted, the only best interest factors that weigh against

termination of mother’s parental rights are factors (3) and (9). Mother did pay child

support and maintained consistent visitation with the child. However, visitation was

always supervised and there was conflicting testimony as to whether the child recognized

mother as her parent during those visits.

The evidence clearly and convincingly supports a finding that termination of

mother’s parental rights is in the best interest of the child. H.S. needs stability. H.S. also

deserves to be permanently reunited with her three older siblings. We hope that mother

will continue to seek appropriate treatment for her substance abuse and mental health

issues. We also hope that mother will take appropriate steps to protect herself from

domestic violence. It is not in the best interest of H.S., however, for this case to remain

in limbo while mother pursues those goals.

VI.

The judgment of the trial court is affirmed. The costs on appeal are assessed to the

appellant, E.R. The case is remanded for enforcement of the trial court’s judgment.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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