Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 06-25-2022
Case Style:
IN RE ADDISYN P. ET AL
Case Number: M2021-00871-COA-R3-PT
Judge:
THOMAS R. FRIERSON, II
Lee Bussart
Court:
COURT OF APPEALS OF TENNESSEE
On appeal from The Juvenile Court for Marshall County
Plaintiff's Attorney:
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800
Defendant's Attorney: Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Senior Assistant Attorney General
Description:
Nashville, TN - Child Custody lawyer represented appellant with a case involving termination of the his parental rights.
On October 4, 2019, the Tennessee Department of Children’s Services (“DCS”)
filed a petition seeking to terminate the parental rights of Keith P. (“Father”) and Candice
P. (“Mother”) to their children, Addisyn P., Tristyn P., and Coletyn P. (collectively, “the
Children”), who were ages seven, five, and two, respectively, at the time of the petition’s
06/16/2022
- 2 -
filing.
1
In the petition, DCS averred that the Children were placed in the custody of the
State on May 10, 2018, based on Mother’s positive drug screen and her failure to comply
with court-ordered services. DCS stated that the trial court had previously entered a nocontact order concerning Father due to allegations that he had committed domestic
violence against Mother in the Children’s presence. According to DCS, the parents also
had previously stipulated that the Children were dependent and neglected due to
educational neglect and exposure to domestic violence. DCS averred that the Children
had been in foster care continuously since they were removed from Mother’s custody.
In support of the petition to terminate, DCS relied on the statutory grounds of (1)
abandonment by failure to visit, (2) abandonment by failure to support, (3) abandonment
by failure to provide a suitable home, (4) persistence of the conditions leading to the
Children’s removal, (5) failure to substantially comply with the requirements of the
permanency plan, and (6) failure to manifest a willingness to assume legal and physical
custody of or financial responsibility for the Children. DCS also alleged that termination
of Father’s parental rights was in the best interest of the Children. An amended petition
was subsequently filed on February 7, 2020.
The record reflects that attorney Cindy Brown, guardian ad litem for the Children,
had filed a dependency and neglect action concerning the Children on January 29, 2018,
in the trial court. In the petition, Ms. Brown asserted that Addisyn was suffering from
educational neglect due to the fact that she had twenty-four unexcused absences from
school during the first half of the 2017-2018 school year. Ms. Brown also stated that
Addisyn had witnessed domestic violence committed by Father against Mother. The trial
court conducted a hearing on March 19, 2018, and determined the Children to be
dependent and neglected. Although the Children were allowed to remain in Mother’s
custody at that time, with DCS services in the home, the trial court directed that Father
would have no contact with the Children.
The trial court entered a protective custody order on May 10, 2018, placing the
Children in the temporary custody of DCS. The court stated that the basis for its order
was Mother’s failure to comply with court-ordered services and her positive drug screen.
On May 21, 2018, the court entered an order allowing Father to participate in therapeutic
supervised visitation with the Children.
On July 20, 2018, the trial court ratified a permanency plan concerning the
Children that had been created in June 2018. In this initial permanency plan, DCS noted
concerns regarding, inter alia, the parents’ drug use and domestic violence in the home.
Father’s specific requirements for compliance with the permanency plan included: (1)
1 Mother has not appealed the trial court’s termination of her parental rights. We will, therefore, confine
our recitation of the facts and our analysis solely to the facts relevant to and the statutory grounds
applicable to Father.
- 3 -
obtaining safe and stable housing and maintaining such housing for at least four months,
(2) providing a transportation plan to DCS, (3) attending and completing the Batterer
Intervention Program, (4) participating in individual and family therapy, (5) obtaining a
mental health assessment, (6) signing a release so that DCS could obtain Father’s mental
health records from the United States Department of Veterans Affairs (“the VA”), (7)
obtaining an alcohol/drug assessment and following all recommendations, (8) submitting
to and passing random drug screens, (9) providing a list of all prescribed medications and
taking those medications as prescribed, and (10) abiding by the rules of his probation and
avoiding new criminal charges. Both Father and his counsel signed this permanency
plan.
The trial court entered an order on September 7, 2018, stating that DCS had
reported that Father had made no progress toward reunification with the Children. The
court explained that visits had been suspended in July 2018 because both parents had
reported contracting scabies and lice, although no medical documentation had been
provided to DCS.
A subsequent permanency plan was developed on April 3, 2019, and ratified by
the trial court on July 23, 2019. This plan contained largely the same requirements listed
in the prior permanency plan; however, Father was also responsible for resolving his
legal issues. This plan further added an alternative goal of adoption. Another
permanency plan was developed on September 5, 2019, and was ratified by the trial court
on October 10, 2019. Father’s requirements under this plan remained substantially the
same as listed in the previous plans. DCS’s termination petition was subsequently filed
on October 4, 2019, and amended on February 7, 2020.
The trial court conducted a bench trial with respect to the termination petition on
April 16, 2020, and May 21, 2021. On July 2, 2021, the court entered an order
terminating the parental rights of Father based on its determination that clear and
convincing evidence supported the statutory grounds of (1) abandonment by failure to
provide support, (2) abandonment by failure to provide a suitable home, (3) persistence
of the conditions leading to the Children’s removal, (4) failure to substantially comply
with the requirements of the permanency plan, and (5) failure to manifest a willingness to
assume legal and physical custody of or financial responsibility for the Children. The
court further determined that clear and convincing evidence demonstrated that
termination of Father’s parental rights was in the Children’s best interest. Father timely
appealed.
II. Issues Presented
Father presents the following issues for this Court’s review, which we have
restated slightly:
- 4 -
1. Whether the trial court erred by determining that DCS proved
statutory grounds for termination of Father’s parental rights by clear
and convincing evidence.
2. Whether the trial court erred by determining that termination of
Father’s parental rights was in the Children’s best interest.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d
507, 523-24 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law,
however, are reviewed de novo with no presumption of correctness. See In re Carrington
H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal
and shall not be disturbed absent clear and convincing evidence to the contrary. See
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:
The parental rights at stake are “far more precious than any property right.”
Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of
parental rights has the legal effect of reducing the parent to the role of a
complete stranger and of [“]severing forever all legal rights and obligations
of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1);
see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
U.S. at 754; see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C.,
452 U.S. 18, 27 (1981) (discussing the due process right of parents to
fundamentally fair procedures).
- 5 -
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-andconvincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).
* * *
In light of the heightened burden of proof in termination proceedings,
however, the reviewing court must make its own determination as to
whether the facts, either as found by the trial court or as supported by a
preponderance of the evidence, amount to clear and convincing evidence of
the elements necessary to terminate parental rights. In re Bernard T., 319
S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
IV. Statutory Grounds for Termination of Father’s Parental Rights
Tennessee Code Annotated § 36-1-113 (2021) lists the statutory requirements for
termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.
* * *
(c) Termination of parental or guardianship rights must be based upon:
- 6 -
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
In its final order, the trial court concluded that clear and convincing evidence supported a
finding of five statutory grounds to terminate Father’s parental rights: (1) abandonment
by failure to provide a suitable home, (2) abandonment by failure to provide support, (3)
persistence of the conditions leading to the Children’s removal, (4) failure to substantially
comply with the requirements of the permanency plan, and (5) failure to manifest a
willingness to assume legal and physical custody of or financial responsibility for the
Children. We will address each statutory ground in turn.
A. Statutory Abandonment
Concerning statutory abandonment, Tennessee Code Annotated § 36-1-113(g)(1)
(2021) provides as relevant to this action:
(g) Initiation of termination of parental or guardianship rights may be
based upon any of the grounds listed in this subsection (g). The
following grounds are cumulative and nonexclusive, so that listing
conditions, acts or omissions in one ground does not prevent them
from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred[.]
The version of Tennessee Code Annotated § 36-1-102(1)(A) (2017) in effect at the time
the instant petition was filed provided the following definitions of abandonment as
pertinent here:2
(ii)(a) The child has been removed from the home or the physical or legal
custody of a parent or parents or guardian or guardians by a court
order at any stage of proceedings in which a petition has been filed
2 Effective March 6, 2020, the General Assembly has amended Tennessee Code Annotated § 36-1-
102(A)(iv) in part to change the language regarding the time period prior to incarceration. See 2020
Tenn. Pub. Acts, Ch. 525, § 1 (S.B. 1769). However, inasmuch as the instant petition was filed prior to
the effective date of the amendment, the prior version of the statute applies. See, e.g., In re Braxton M.,
531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).
- 7 -
in the juvenile court alleging that a child is a dependent and
neglected child, and the child was placed in the custody of the
department or a licensed child-placing agency;
(b) The juvenile court found, or the court where the termination of
parental rights petition is filed finds, that the department or a
licensed child-placing agency made reasonable efforts to prevent
removal of the child or that the circumstances of the child’s situation
prevented reasonable efforts from being made prior to the child’s
removal; and
(c) For a period of four (4) months following the physical removal, the
department or agency 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 not made reciprocal 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 shall be found to be reasonable if such
efforts equal or 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;
* * *
(iv) A parent or guardian is incarcerated at the time of the institution of
an action or proceeding to declare a child to be an abandoned child,
or the parent or guardian has been incarcerated during all or part of
the four (4) months immediately preceding the institution of such
action or proceeding, and either has failed to visit or has failed to
support or has failed to make reasonable payments toward the
support of the child for four (4) consecutive months immediately
preceding such parent’s or guardian’s incarceration, or the parent or
guardian has engaged in conduct prior to incarceration that exhibits a
wanton disregard for the welfare of the child. If the four-month
period immediately preceding the institution of the action or the
four-month period immediately preceding such parent’s
incarceration is interrupted by a period or periods of incarceration,
and there are not four (4) consecutive months without incarceration
immediately preceding either event, a four-month period shall be
created by aggregating the shorter periods of nonincarceration
- 8 -
beginning with the most recent period of nonincarceration prior to
commencement of the action and moving back in time. Periods of
incarceration of less than seven (7) days duration shall be counted as
periods of nonincarceration. Periods of incarceration not discovered
by the petitioner and concealed, denied, or forgotten by the parent
shall also be counted as periods of nonincarceration. A finding that
the parent has abandoned the child for a defined period in excess of
four (4) months that would necessarily include the four (4) months
of nonincarceration immediately prior to the institution of the action,
but which does not precisely define the relevant four-month period,
shall be sufficient to establish abandonment[.]
We will address each abandonment ground in turn.
1. Abandonment by Failure to Provide Suitable Home
The trial court determined that clear and convincing evidence supported the
statutory ground of abandonment by failure to provide a suitable home. With respect to
this ground, the trial court stated in its July 2, 2021 order:
The Court finds that there is uncontroverted proof that the children
were removed from the parents on May 10, 2018 based upon a Petition
filed in this Court alleging that the children were dependent and
neglect[ed]. The Ex Parte Protective Custody Order found that the
children’s situation prevented the Department from making reasonable
efforts to prevent the removal.
Based upon the uncontroverted testimony of FSW [family services
worker] Gentry and the proof before the Court, the Court further finds that
for a period of four months following the removal, the Department made
reasonable efforts to assist [Father and Mother] to establish a suitable home
for the children. FSW Gentry and Team Leader Fisher testified that the
Department prepared permanency plans for [Father and Mother], setting out
requirements in order to regain custody of the children. Further, the
Department provided services to [Father and Mother] consistent with the
permanency plans. The Department further provided necessary services for
the children, including necessary medical and behavioral health services.
As set out above, at the permanency hearings the Court found that
neither parent had resolved the issues which brought the children into
custody, or provided any proof of completion of any of their responsibilities
on the permanency plans. . . .
- 9 -
The Court finds that [Father and Mother] have failed to improve
their homes and personal conditions so that the children could be returned
to them, and that their failure to make even minimal efforts to improve their
homes and personal conditions demonstrates a lack of concern for the
children to such a degree that it appears unlikely that [Father and Mother]
will be able to provide a suitable home for the children at an early date.
The Court further finds that the efforts of the Department to assist [Father
and Mother] in establishing a suitable home for the children were
reasonable, in that they were equal to the efforts of [Father and Mother]
toward establishing a suitable home, and that [Father and Mother] were
aware that the children were in DCS custody.
DCS has proven, by clear and convincing evidence, the ground of
abandonment by failure to provide a suitable home against [Father and
Mother].
(Footnotes omitted.)
Upon our thorough review, we conclude that the evidence presented at trial
supports the trial court’s findings. The Children were removed from the home of the
parents and from their custody on May 10, 2018, and placed in the custody of DCS
following the filing of a petition alleging dependency and neglect. In its May 2018 order,
the trial court determined that the Children’s circumstances prevented further reasonable
efforts from being made by DCS prior to removal.
Nevertheless, for more than four months thereafter, DCS made reasonable efforts
to assist Father in establishing a suitable home for the Children. DCS established
permanency plans for the Children, which outlined the requirements Father needed to
satisfy in order to regain custody. DCS submitted a referral for a mental health
evaluation for Father and requested that Father sign a release so that DCS could obtain
his mental health records from the VA. Father refused to comply with either of these
requested actions. DCS also offered a hair follicle drug screen, which Father refused.
Based on Father’s need for safe and stable housing, DCS provided the parents with
listings for affordable rental properties. When the parents obtained a residence, DCS
performed a home visit to determine the suitability of the residence. DCS found the
home to be appropriate; however, the parents moved from that home shortly thereafter
due to an insect infestation.
DCS further provided for therapeutic supervised visits between Father and the
Children. Although DCS offered thirty-six hours of visitation to Father from June 2018
to February 2019, Father only utilized twelve of those hours. Father was then re-
- 10 -
incarcerated in February 2019 and remained incarcerated at the time of the termination
hearing.
As this Court has previously explained concerning the reasonable efforts analysis:
Reasonable efforts is a fact intensive inquiry and must be examined on a
case-by-case basis. “Reasonable efforts” as defined by the legislature is
“the exercise of reasonable care and diligence by the department to provide
services related to meeting the needs of the child and the family.”
Tennessee Code Annotated section 37-1-166(g)(1) (2003). However, the
burden of family reunification does not lie entirely with DCS as
reunification is a “two-way street.”
In re C.L.M., No. M2005-00696-COA-R3-PT, 2005 WL 2051285, at *9 (Tenn. Ct. App.
Aug. 25, 2005) (other internal citations omitted). We conclude that the evidence
preponderates in favor of a determination that DCS made reasonable efforts to assist
Father in establishing a suitable home in the four months following removal of the
Children.
The legislature has also stated that “efforts of the department or agency to assist a
parent or guardian 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 or guardian toward the
same goal.” See Tenn. Code Ann. § 36-1-102 (1)(A)(ii)(c). During the approximately
nine-month period following the Children’s removal and prior to Father’s reincarceration, Father failed to demonstrate reciprocal efforts to improve his situation in
order to provide a suitable home for the Children. Father did not comply with the
requirements of the permanency plans. He never addressed his drug addiction or
domestic violence issues, his lack of safe and stable housing, or his mental health needs.
During trial, Father acknowledged that a practitioner at the VA had diagnosed him with
post-traumatic stress disorder (“PTSD”) and that he had self-medicated with illicit drugs
rather than addressing his mental health issues. Father acknowledged that he had been
suicidal at times and that he could not have provided care for the Children in 2018 and
early 2019 due to his mental state and drug use.
Although Father acknowledged that he understood the requirements of the
permanency plans, he expressed his disagreement with those requirements, stating
essentially that he did not need to attend domestic violence classes because he had not
been violent with Mother. Father admitted, however, that he had “pushed” Mother and
had held her against a wall by her head and neck. Father remained incarcerated at the
time of the termination trial, having violated his probation by using unlawful drugs. In
Father’s own words, he acknowledged that “getting my kids back in the next year or two
will probably be a bad idea.”
- 11 -
The evidence at trial clearly and convincingly demonstrated that Father was not
able to establish a home to which the Children could safely return due to his
incarceration, drug use, violent tendencies, and mental health issues. As such, Father
demonstrated a lack of concern for the Children to such a degree that it appears unlikely
that he will be able to provide a suitable home for the Children at an early date. We
therefore conclude that the trial court properly determined that clear and convincing
evidence supported the statutory ground of abandonment by failure to provide a suitable
home.
2. Abandonment by Failure to Support
The trial court determined that clear and convincing evidence supported the
statutory ground of abandonment by failure to support. With respect to this ground, the
trial court stated in its July 2, 2021 order:
From June 3 to October 3, 2019, [Mother] made no payments. From
October 2018 - January 2019 (month prior to incarceration) no payments
were received from [Father]. Although he was incarcerated, [Father] made
one payment in March 2019.
The Court finds that [Mother] and [Father] have abandoned these
children in failing to support or make reasonable payments toward the
support of the children for four (4) consecutive months immediately
preceding the filing of the Department’s Petition or prior to incarceration.
Therefore, clear and convincing evidence of failure to support has been
established.
The court also found that Father received monthly disability benefits from the VA.
The applicable version of the statute provided that the determinative period for
abandonment by failure to support for an incarcerated parent was the “four (4)
consecutive months immediately preceding such parent’s or guardian’s incarceration.”
See Tenn. Code Ann. § 36-1-102 (1)(A)(iv) (2017). Trial exhibits establish that Father’s
most recent incarceration had begun on February 11, 2019. As such, the relevant
determinative period was October 11, 2018, through February 10, 2019, the day before
Father was incarcerated. See In re Joseph F., 492 S.W.3d 690, 702 (Tenn. Ct. App.
2016) (explaining that the applicable four-month statutory period “began on March 8,
2011, and concluded on July 7, 2011, the day prior to the filing of the termination
petition”) (citing In re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at
*6 (Tenn. Ct. App. Feb. 20, 2014)).
It is undisputed that Father made no child support payments during this time
period for two of the Children. However, trial exhibits demonstrate that Father did tender
- 12 -
one $400 payment for the third child in January 2019. The evidence also demonstrates
that Father was not incarcerated during the determinative period and was receiving
monthly disability benefits from the VA. This Court has previously considered a parent’s
disability benefits in the context of parental rights termination to find that a parent could
have provided some amount of support for his child(ren). See, e.g., In re Kierani C., No.
W2020-00850-COA-R3-PT, 2021 WL 4057222, at *12 (Tenn. Ct. App. Sept. 3, 2021);
In re Miracle M., No. W2017-00068-COA-R3-PT, 2017 WL 3836020, at *6 (Tenn. Ct.
App. Aug. 30, 2017).
During trial, Father claimed that his disability benefits were in the amount of
$2,000 per month. On his affidavit of indigency filed in February 2018, however, Father
represented that such benefits were in the amount of $3,000 per month. Mother likewise
testified that Father’s disability benefits were in the amount of $3,200 to $3,500 per
month.
Father asserted at trial and continues to posit on appeal that his failure to pay
support was not willful. See Tenn. Code Ann. § 36-1-102(1)(I) (2021) (“[I]t shall be a
defense to abandonment for failure to visit or failure to support that a parent or guardian’s
failure to visit or support was not willful. The parent or guardian shall bear the burden of
proof that the failure to visit or support was not willful. Such defense must be established
by a preponderance of evidence.”). Father urges that he established this affirmative
defense at trial through his testimony that he was released from incarceration in April
2018, was not employed during the months he was not incarcerated, and suffered a loss
during the summer of 2018 when he was forced to move from his residence due to an
insect infestation.
Although Father’s testimony did establish these facts, we note that Father never
claimed during his trial testimony that he lacked the ability to pay support for the
Children. Father presented no evidence concerning his living expenses and admitted that
he had income of at least $2,000 per month during the determinative period regardless of
his employment status. Father also admitted to prolific use of illicit drugs during the
determinative period. A parent’s ability to procure illicit drugs has previously been
considered by this Court as a factor demonstrating that parent’s ability to pay child
support. See In re Daniel G., No. E2021-00188-COA-R3-PT, 2021 WL 5297698, at *17
(Tenn. Ct. App. Nov. 15, 2021); In re E.S.L., No. E2015-01709-COA-R3-PT, 2016 WL
4532470, at *5 (Tenn. Ct. App. Aug. 29, 2016); In re Autumn K., No. M2009-01579-
COA-R3-PT, 2010 WL 702307, at *11 (Tenn. Ct. App. Mar. 1, 2010).
In addition, despite the trial court’s finding that no support payments were made
by Father during the determinative period, trial exhibits demonstrate that he paid a $400
child support payment in January 2019. This payment further demonstrates Father’s
ability to pay child support. As such, Father’s asserted defense that his failure to support
was not willful because he lacked the ability to pay was not proven by a preponderance of
- 13 -
the evidence. See Tenn. Code Ann. § 36-1-102(1)(I). Moreover, given Father’s level of
income, we determine this singular payment made during the determinative period to
constitute token support. See Tenn. Code Ann. § 36-1-102(1)(B) (2021) (defining “token
support” to mean “that the support, under the circumstances of the individual case, is
insignificant given the parent’s means”).
Father postulates that this Court should consider the child support payments that
he made during his incarceration but prior to the filing of the termination petition.
However, Father cites no authority allowing this Court to consider payments made
outside the determinative period set forth in the statute. We therefore conclude that the
evidence preponderates in favor of the trial court’s finding, by clear and convincing
evidence, that the statutory ground of abandonment by failure to support was proven as to
Father.
B. Persistence of Conditions
The trial court also found clear and convincing evidence supporting the ground of
persistence of the conditions that led to removal of the Children from Father’s home or
physical or legal custody. Regarding this statutory ground, Tennessee Code Annotated §
36-1-113(g)(3) (2021) provides:
(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian 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
guardian, 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 or guardian;
(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 or guardian in the near future; and
(iii) 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;
- 14 -
(B) The six (6) months must accrue on or before the first date the
termination of parental rights petition is set to be heard[.]
In its final order, the trial court determined as follows concerning this ground:
The Court concludes by clear and convincing evidence that the
children have been removed from the home or the physical or legal custody
of [Mother] since May 10, 2018, as the result of a Petition filed in Juvenile
Court alleging that the children were dependent and neglected. At the time
of this hearing, the children have been removed for a period greater than six
months. The Court further concludes that conditions continue to exist in
the home which prevent the children’s return to Mother and Father.
The Order which precipitated the removal of the children alleged
that the children were dependent and neglected based upon drug exposed
children. The conditions which led to the removal still persist.
Therefore, the Court finds that DCS has proven, by clear and
convincing evidence, the ground of persistent conditions against [Mother
and Father].
The evidence presented at trial preponderates in favor of these findings and
determinations. Following the filing of a dependency and neglect petition, the Children
were removed from the legal custody of Father and Mother on May 10, 2018, and placed
in the custody of DCS. By the time the termination trial was conducted, the Children had
been in DCS custody for almost three years.
The conditions leading to the Children’s removal included domestic violence in
the home, drug use by the parents, and educational neglect concerning Addisyn. By the
time of trial, Father had not completed a treatment program for his substance abuse
issues. Father had also failed to complete any domestic violence program. Instead,
Father was reincarcerated in February 2019 and remained incarcerated at the time of trial.
Based on Father’s incarceration and his lack of progress in dealing with his
substance abuse and mental health issues, it is unlikely that the Children could be safely
returned to Father in the near future. Father admitted as much during his trial testimony.
As such, continuation of the parent/child relationship would greatly diminish the
Children’s chances of early integration into a safe, stable, and permanent home. The
proof demonstrated that the Children were flourishing in the home of their foster parents
(“Foster Parents”), who loved the Children and wished to adopt them.
- 15 -
Predicated upon the evidence presented at trial, we conclude that the trial court
properly determined that clear and convincing evidence supported the statutory ground of
persistence of the conditions leading to removal.
C. Substantial Noncompliance with Permanency Plan Requirements
The trial court also determined that clear and convincing evidence supported the
ground of substantial noncompliance by Father “with the statement of responsibilities in a
permanency plan,” pursuant to Tennessee Code Annotated § 36-1-113(g)(2) (2021). In
its order, the trial court specifically found:
There was uncontroverted testimony from FSW Gentry that the
Department prepared multiple permanency plans for [Father and Mother],
and that the responsibilities for [Father and Mother] were consistent on the
plans. This Court has reviewed the plans, and made findings by
preponderance of evidence during the dependency case that the
requirements for [Father and Mother] were reasonable, reasonably related
to the reasons for foster care, and that the plans were in the children’s best
interests. This Court makes the same finding today by clear and convincing
evidence and further finds that had [Father and Mother] cooperated with the
plans, it would have addressed the reasons for which the children w[ere] in
DCS custody.
The Court presented termination criterion provided on July 19, 2018.
Specifically, Mother testified she understood failure to comply with the
permanency plan could result in termination of parental rights.
[Father] testified that he withheld his release of information because
that was the only power he had, indicating he understood his obligations
under the Permanency Plan and willfully failed to comply. [Father]
participated in many Child Family Team Meetings. He testified that based
on his diagnosis of Post Traumatic Stress Disorder, he has difficulty
handling conflict and requested all communication be directed to his
attorney on June 25, 2019.
The Court finds neither Mother or Father successfully complied with
their permanency plans. At this time, Father is incarcerated for his
continued drug use. . . . Therefore, the Court finds that DCS has proven, by
clear and convincing evidence, the ground of substantial noncompliance
with the permanency plans against [Father and Mother].
- 16 -
Based upon our thorough review of the evidence presented in this matter, we agree with
the trial court’s findings and conclusions concerning this statutory ground as pertinent to
Father.
In the initial permanency plan, DCS clearly set forth specific requirements for
Father’s compliance with the permanency plan, including: (1) obtaining safe and stable
housing and maintaining such housing for at least four months, (2) providing a
transportation plan to DCS, (3) attending and completing the Batterer Intervention
Program, (4) participating in individual and family therapy, (5) obtaining a mental health
assessment, (6) signing a release so that DCS could obtain Father’s mental health records
from the VA, (7) obtaining an alcohol/drug assessment and following all
recommendations, (8) submitting to and passing random drug screens, (9) providing a list
of all prescribed medications and taking those medications as prescribed, and (10)
abiding by the rules of his probation and avoiding new criminal charges. These
requirements were also incorporated into subsequent plans.
Father acknowledged at trial that he was aware of the permanency plans’
requirements. However, Father made little to no progress toward the requirements during
the three-year period that the Children remained in DCS custody. Although Father was
incarcerated during a portion of that period, thereby limiting his available resources, the
evidence demonstrated that during the nine-month period following the Children’s
removal and preceding Father’s incarceration, he completed none of the action steps
required by the permanency plan. He failed to establish and maintain a stable home,
failed to complete the Batterer Intervention Program, failed to address his mental health
needs or substance abuse issues, and ultimately had his probation revoked. As such, we
conclude that the trial court properly determined that clear and convincing evidence
supported the statutory ground of substantial noncompliance with the permanency plan
requirements.
D. Failure to Manifest a Willingness to Assume Legal and Physical Custody of
or Financial Responsibility for the Children
The trial court determined that DCS presented clear and convincing evidence that
Father had failed to manifest an ability and willingness to assume legal and physical
custody of or financial responsibility for the Children. Regarding this statutory ground,
Tennessee Code Annotated § 36-1-113(g)(14) (2021) provides:
A parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or
financial responsibility of the child, and placing the child in the person’s
legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child[.]
- 17 -
To prove this ground, DCS was required to show by clear and convincing evidence that
(1) Father failed to manifest either an ability or willingness to assume custody or
financial responsibility of the Children and (2) returning the Children to Father’s custody
would pose a risk of substantial harm to the Children’s welfare. In re Neveah M., 614
S.W.3d 659, 674, 677 (Tenn. 2020); In re Jeremiah S., No. W2019-00610-COA-R3-PT,
2020 WL 1951880, at *6 (Tenn. Ct. App. Apr. 23, 2020) (“Under this ground for
termination, the petitioner must prove each element by clear and convincing evidence.”).
In its July 2, 2021 order, the trial court found as follows concerning this statutory
ground:
The Court finds that [Father and Mother] have failed to manifest, by
act or omission, an ability and a willingness to personally assume legal and
physical custody of the children. There was uncontroverted proof that
[Mother] has engaged in acts or omissions that show her failure to manifest
an ability and willingness to personally assume legal and physical custody
of the children, despite knowing that the children are in foster care, and
each has chosen not to engage in services with the Department to change
their situations so they could regain custody of the children. [Father and
Mother] have not substantially completed any requirement of the
permanency plans, including maintaining meaningful sobriety or obtaining
a suitable home.
The Court finds that [Father and Mother] have failed to manifest, by
act or omission, an ability and a willingness to personally assume financial
responsibility of the children, as demonstrated by their failures to provide
any support for the children.
The Court further finds that placing the children in [Father’s and
Mother’s] legal and physical custody would pose a risk of substantial harm
to the physical or psychological welfare of the children. In addition to the
lack of progress, failure to complete any task on the permanency plan, and
continued criminal activity, there was uncontroverted testimony from
Brandee Lancaster of Junior’s House, Lisa Fisher and Foster Mother that
the children are doing well in their foster home, and that it would be
detrimental to the children to be moved. [The foster mother] testified that
Coletyn does not have any type of relationship with [Father and Mother]
and doesn’t even know who they are. The children appear healthy and well
cared for. [Foster Parents] are committed to the children and want to adopt
them. Based on photographs, the children interact well with each other and
other family.
- 18 -
The Court finds that the current placement with [Foster Parents]
supports the children’s emotional, psychological and medical needs. It is
this Court’s opinion that the children’s relationship with [Foster Parents] is
a meaningful family relationship and it would be detrimental to the children
to disturb this bond.
(Footnote omitted.) The evidence supports these findings as pertinent to Father.
At the time of trial, Father was incarcerated. No evidence was presented
concerning Father’s projected release date. Father also had not sufficiently addressed his
substance abuse, domestic violence, or mental health issues. Father presented no proof
demonstrating that he would be able to provide a safe and stable home for the Children
even if he were not incarcerated. As such, Father had no ability to assume custody of the
Children.
Although DCS needed to prove only Father’s failure to manifest an ability or his
failure to manifest a willingness as it relates to this ground, we likewise conclude that
Father also lacked the willingness to assume legal and physical custody of or financial
responsibility for the Children. See In re Neveah M., 614 S.W.3d at 677 (“If a person
seeking to terminate parental rights proves by clear and convincing proof that a parent or
guardian has failed to manifest either ability or willingness, then the first prong of the
statute is satisfied.”). We recognize Father’s testimony at trial that he loved the Children
and did not want to lose his parental rights. However, as this Court has previously
explained:
When evaluating willingness, we look for more than mere words. Parents
demonstrate willingness by attempting to overcome the obstacles that
prevent them from assuming custody or financial responsibility for the
child.
In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL 1313237, at *8 (Tenn. Ct.
App. Mar. 22, 2019) (internal citations omitted).
Father’s actions spanning the nearly three years that had elapsed since the
Children’s removal by the time of trial established that Father had failed to manifest a
willingness to regain custody of the Children. See In re Keilyn O., No. M2017-02386-
COA-R3-PT, 2018 WL 3208151, at *8 (Tenn. Ct. App. June 28, 2018) (finding that a
parent had failed to manifest a willingness to assume custody because, inter alia, she
“was incarcerated and had completed virtually none of her plan responsibilities” by the
time of trial); In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *15
(Tenn. Ct. App. June 20, 2018) (“Father’s actions, including his continued criminal
activity and his failure to financially support the Child, raise doubt as to Father’s actual
willingness to assume custody or financial responsibility for the Child.”).
- 19 -
Since the Children were removed in May 2018, Father’s actions reflected a lack of
concern for the Children and a lack of willingness to assume legal and physical custody
of or financial responsibility for the Children. When Father was not incarcerated, he did
not complete any of the requirements of the permanency plans and failed to address even
the most basic needs of maintaining a stable residence, maintaining contact with DCS,
participating in consistent visitation, and addressing his substance abuse and mental
health issues. Instead, Father continued to use illicit drugs and refused to cooperate with
DCS at every turn. Father’s actions evinced that he was not willing to overcome major
obstacles to regaining custody. We therefore determine that the evidence supported the
trial court’s findings concerning Father’s failure to manifest an ability and willingness to
personally assume legal and physical custody of or financial responsibility for the
Children.
Moreover, we further determine that the evidence preponderated in favor of the
trial court’s finding that placing the Children in Father’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological welfare of the
Children. As the trial court noted, in addition to Father’s lack of progress toward
providing a safe and stable home for the Children, the evidence was also clear that the
Children were thriving in the care of Foster Parents and that removing them from that
environment would be “devastating.” The proof demonstrated that Addisyn had
completed two years of trauma therapy and had learned to deal with her anger at and fear
of Father, although she still expressed the desire that she not be placed in his custody.
The younger children, who were two years old and ten months old, respectively, at the
time they were removed, had no meaningful bond with Father, and proof was presented
that they did not know who Father was. Multiple witnesses testified that the Children
were happy, healthy, and thriving in the care of Foster Parents, who loved them and
wished to adopt them. By contrast, Father had failed for a period of three years to take
any significant steps toward regaining custody or being able to provide a safe home to
which the Children could return.
Based upon Father’s history of mental health issues, violence, and drug use,
placing the Children in his custody would clearly pose a risk of substantial harm to their
physical and psychological welfare. We therefore conclude that the trial court properly
determined that clear and convincing evidence supported the statutory ground of failure
to manifest an ability and willingness to assume legal and physical custody of or financial
responsibility for the Children.
V. Best Interest of the Children
When a parent has been found to be unfit by establishment of at least one statutory
ground for termination of parental rights, as here, the interests of parent and child
diverge, and the focus shifts to what is in the child’s best interest. In re Audrey S., 182
- 20 -
S.W.3d 838, 877 (Tenn. Ct. App. 2005); see also In re Carrington H., 483 S.W.3d at 523
(“The best interests analysis is separate from and subsequent to the determination that
there is clear and convincing evidence of grounds for termination.” (quoting In re Angela
E., 303 S.W.3d 240, 254 (Tenn. 2010))). Tennessee Code Annotated § 36-1-113(i)
provides a list of factors the trial court is to consider when determining if termination of
parental rights is in a child’s best interest. This list is not exhaustive, and the statute does
not require the court to find the existence of every factor before concluding that
termination is in a child’s best interest. See In re Carrington H., 483 S.W.3d at 523; In re
Audrey S., 182 S.W.3d at 878 (“The relevancy and weight to be given each factor
depends on the unique facts of each case.”). Furthermore, the best interest of a child
must be determined from the child’s perspective and not the parent’s. White v. Moody,
171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) in effect
when the termination petition was filed in the instant action listed the following factors
for consideration:3
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical
condition;
3 Effective April 22, 2021, the General Assembly has amended Tennessee Code Annotated § 36-1-113(i)
by deleting the previous subsection in its entirety and substituting a new subsection providing, inter alia,
twenty factors to be considered in determining a child’s best interest in a case involving termination of
parental rights. See 2021 Tenn. Pub. Acts, Ch. 190 § 1 (S.B. 205). However, because the termination
petition in this case was filed prior to the effective date of the amendment, the statutory best interest
factors provided in the prior version of the statute are applicable here. See, e.g., In re Braxton M., 531
S.W.3d at 732.
- 21 -
(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.
As our Supreme Court has instructed regarding the best interest analysis:
“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d [240,] 254 [(Tenn. 2010)].
When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d [533,] 555 [(Tenn. 2015)] (citing In re Audrey
S., 182 S.W.3d at 861). “After making the underlying factual findings, the
trial court should then 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[s].” Id. When considering these
statutory factors, courts must remember that “[t]he child’s best interests
[are] viewed from the child’s, rather than the parent’s, perspective.” In re
Audrey S., 182 S.W.3d at 878. Indeed, “[a] focus on the perspective of the
- 22 -
child is the common theme” evident in all of the statutory factors. Id.
“[W]hen the best interests of the child and those of the adults are in
conflict, such conflict shall always be resolved to favor the rights and the
best interests of the child. . . .” Tenn. Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon
the circumstances of a particular child and a particular parent, the
consideration of one factor may very well dictate the outcome of the
analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
S.W.3d at 194). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
more weight—even outcome determinative weight—to a particular
statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In considering the best interest factors, the trial court found concerning both
parents:
The Court concludes that Tenn. Code Ann. § 36-1-113(i)(2) is
present in that [Mother] has not made such an adjustment of circumstance,
conduct or conditions as to make it safe and in the children’s best interest to
be in her home despite reasonable efforts by available social service
agencies for such duration of time that lasting adjustment does not
reasonabl[y] appear possible. [Father] is currently incarcerated; therefore,
[Father] has not made such an adjustment of circumstance, conduct or
conditions as to make it safe and in the children’s best interest to be in his
home despite reasonable efforts by available social service agencies for
such duration of time that lasting adjustment does not reasonabl[y] appear
possible.
- 23 -
There was uncontroverted testimony from FSW Gentry and Team
Leader Fisher that the Department attempted to assist [Mother] to remedy
the situation that brought the children into foster care, appropriate referrals
were made and utilized. Nonetheless, [Mother] has not complied with
those services, and as a result she has not been successful in maintaining
her sobriety or obtaining the security and stability necessary to support the
children. The Court is truly encouraged by the progress shown by Mother
in the last few months; nonetheless, her significant delay in seeking
treatment and achieving sobriety was of unreasonable duration. Therefore,
the Court finds that this factor weighs in favor of termination.
The Court finds that § 36-1-113(i)(4) is present in that there is no
meaningful relationship between the parents and the children. The
testimony of Brandee Lancaster demonstrated the significant trauma
endured by this family. The relationship with the birth parents, particularly
for Addisyn, is a painful one. This factor weighs heavily in favor of
termination.
The Court finds that . . . Tenn. Code Ann. § 36-1-113(i)(5) is present
in that a change of caregivers at this stage of the children’s lives would
have a detrimental effect on the children. The Court finds that any change
of caregivers resulting in a return to Mother would have a detrimental effect
on the children as there was uncontroverted testimony from [Mother] that
she does not currently have a suitable home and [Father] is currently
incarcerated and otherwise not stable. Despite completing alcohol and drug
treatment and maintaining sobriety recently, Mother’s delay in achieving
her stability and the fragility of her housing situation does not make
reuniting with her children safe. The Court further finds that a change of
caregivers would also be detrimental to the children if they were to leave
[Foster Parents’] home, which the Court finds to be the only meaningful
relationships that the children have, and that the children are extremely
well-cared for in [Foster Parents’] home. This factor weighs in favor of
termination.
The Court finds that Tenn. Code Ann. § 36-1-113(i)(6) is present in
that [Mother] has shown neglect towards the children as evidenced by her
exposure of the children to drug use, and by failing to provide them a
suitable home. This factor weighs in favor of termination.
The Court finds that Tenn. Code Ann. § 36-1-113(i)(7) is present in
that the physical environment of [Mother’s] home is not healthy and safe
for the children. The Court finds that [the paternal grandmother’s] home
does not offer sufficient support for the children based on their need for
- 24 -
protection from further trauma; therefore, the Court cannot consider that
Mother has a physical environment that is healthy and safe for the children.
Further, Mother has not demonstrated an ability to protect the children from
abusive circumstances and inappropriate household members. This factor
weighs in favor of termination.
Further, the Court concludes that termination of [Mother’s] parental
rights is in the best interests of the children because [Mother] has received
appropriate referrals and appropriate treatment, yet she has been unable to
change her circumstances to provide stability for the children. Although
she is in a much stronger position than she was six months ago, she is still
not in a position to parent.
Further, the Court concludes that termination of [Father’s] parental
rights is in the best interests of the children because [Father] has received
appropriate referrals and appropriate treatment, yet he has been unable to
change his circumstances to provide stability for the children.
The court also noted that evidence demonstrated that the Children had developed a strong
bond with Foster Parents, who wished to adopt the Children.
Upon our thorough review of the evidence presented in this matter, we determine
that the trial court’s findings concerning the statutory best interest factors are supported
by a preponderance of the evidence. With regard to the first factor, Father had made no
adjustment to his circumstances, conduct, or conditions by the time of trial so as to make
it safe or in the Children’s best interest to be in his home. Father was incarcerated and
had failed to comply with the permanency plan requirements, which were reasonably
related to remedying the conditions leading to the Children’s removal. Likewise, with
regard to the second factor, Father had failed to effect a lasting change despite reasonable
efforts by DCS to assist him. Considering especially that three years had passed in the
interim, we find it unlikely that change would occur.
Concerning the third factor, Father had not maintained consistent visitation with
the Children, having only utilized one-third of the hours offered to him before he was
reincarcerated. Because of this, Father had no meaningful relationship with the Children
in accordance with factor four. The evidence demonstrated that Addisyn had expressed a
continuing fear of Father and that the younger children did not know him.
With regard to the fifth factor, multiple witnesses testified that removing the
Children from Foster Parents’ home would be detrimental to their emotional and
psychological health. The Children were thriving with Foster Parents, had bonded with
them as a family, and referred to Foster Parents as “Mom” and “Dad.” The Children
were happy, and Addisyn was performing well in school. The Children’s mental and
- 25 -
physical health had improved since being placed with Foster Parents. Significant
evidence existed demonstrating that removing the Children from that home would have a
devastating impact on them. The Children’s foster mother, who was also their maternal
aunt, described the Children as “energetic and fun” and explained that they had overcome
the trauma to which Father had subjected them through therapy and a loving and stable
environment. Addisyn’s therapist described her relationship with Foster Parents as
loving and healthy.
Respecting factor six, Father had committed domestic violence toward Mother
while the Children were present, resulting in trauma to the Children. Mother testified at
trial concerning Father’s violent acts toward her, which included choking her until she
blacked out and holding a knife to her throat. Mother testified that one episode of
violence became so prolonged and traumatic that she asked Father to allow her to lock
the Children in a closet so they would no longer be forced to witness it. Moreover, when
the Children lived with Father, they were also subjected to his illicit drug use, which
would impact consideration of factor seven. With regard to factor eight, Father’s mental
health issues also had been detrimental to the Children and, inasmuch as Father had never
sufficiently addressed those issues, would prevent Father from effectively parenting the
Children in the future. Father’s mental health appeared to be reflected in his somewhat
bizarre trial testimony, wherein he acknowledged telepathic communications and
described himself as being held “hostage” and the victim of “domestic terrorism.”
Finally, concerning factor nine, Father failed to pay consistent child support for
the Children, having tendered only one payment during the determinative period even
though he received regular income via his disability benefits. In sum, based on our
careful review of the evidence, we conclude that clear and convincing evidence supported
the trial court’s determination that termination of Father’s parental rights was in the best interest of the Children. Con
Outcome: For the foregoing reasons, we conclude that the trial court’s judgment terminating
Father’s parental rights to the Children should be affirmed in its entirety. Costs on appeal are assessed to the appellant, Keith P. This case is remanded to the trial court for collection of costs assessed below.
Plaintiff's Experts:
Defendant's Experts:
Comments: