IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 30, 2014

IN RE AIREONA H. W.1

Appeal from the Juvenile Court for Hamilton County

No. 254987 Hon. Robert D. Philyaw, Judge

No. E2014-00241-COA-R3-PT-FILED-AUGUST 20, 2014

This is a termination of parental rights case in which the Tennessee Department of Children’s

Services filed a petition to terminate Mother’s parental rights to the Child. The trial court

found that clear and convincing evidence existed to support the termination of Mother’s

parental rights on several statutory grounds and that termination of her rights was in the

Child’s best interest. Mother appeals. We affirm the decision of the trial court.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., C.J., and THOMAS R. FRIERSON, II, J., joined.

Berry Foster, Chattanooga, Tennessee, for the appellant, Amber W.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant

Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department

of Children’s Services.

John B. Wysong, Chattanooga, Tennessee, guardian ad litem for the minor, Aireona H. W.

This court has a policy of protecting the identity of children in parental rights termination cases by 1

initializing the last name of the parties.
OPINION

I. BACKGROUND

Aireona H. W. (“the Child”) was born to Amber W. (“Mother”) and Eugene B.

(“Father”) in March 2011. The Child tested positive for illegal substances at birth. The

Tennessee Department of Children’s Services (“DCS”) provided services to Mother to

address the issue of drugs and domestic violence. Shortly thereafter, Mother moved to

Georgia, causing DCS to close the case. A few months later, DCS received a second referral

regarding Mother’s care of the Child. DCS closed the case because Mother could not be

located. A few months later, DCS received a third referral regarding Mother’s care of the

Child. DCS eventually located Mother, who had several active warrants for her arrest in

Hamilton County, and removed the Child in March 2012. The Child was adjudicated as

dependent and neglected, based upon Mother’s use of illegal drugs while pregnant with and

while parenting the Child and her inability to provide a safe and stable home.

The record reflects that DCS developed a permanency plan on April 16, 2012, and

another on February 21, 2013. These plans were ratified by the trial court. Pursuant to the

plans, Mother was required to complete an alcohol and drug assessment and follow all

recommendations, comply with random drug screening, comply with mental health

counseling, remit child support, visit the Child, attend parenting classes, resolve all legal

issues, and obtain and maintain housing, employment, and transportation. DCS filed a

petition to terminate Mother and Father’s parental rights to the Child in April 2013. DCS

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alleged that termination of Mother’s parental rights was supported by the statutory grounds

of abandonment for failure to visit, substantial noncompliance with the permanency plans,

and the persistence of conditions which led to removal.

A hearing was held at which several witnesses testified. Mother, who was in custody

at the time of trial, stated that in addition to the Child, she had four other children who no

longer lived with her. She testified that when the Child was removed, she tested positive for

marijuana and was arrested based upon an outstanding warrant. She was released in June

2012 but was currently incarcerated for failure to pay child support for one of the Child’s

siblings. She hoped to be released in “the next few weeks” because she believed her arrest

was a mistake when her child support payments were automatically deducted from her

paycheck. She stated that prior to her current incarceration, she worked at Subway and

offered her assistance to an “elderly lady” on a regular basis in return for payment. She

claimed that upon her release, she had a place to live with her roommate, Ashley C.

Father failed to legitimate the Child and never established a relationship with the Child. He did not appear

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at the termination hearing at which his rights were terminated. He is not a party to this appeal.

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Mother testified thatshe had completed her parenting classes, had remained drug free,

had maintained employment, and had visited the Child pursuant to the permanency plans.

She acknowledged that she completed her parenting class in June 2013, two months after the

termination petition had been filed. She asserted that her case manager merely gave her a

listing of parenting classes in the area. She explained that the list was approximately four

years old and that half of the places listed no longer offered classes. She conceded that she

had tested positive for marijuana on several occasions since the Child had been removed.

She denied using marijuana and claimed that the tests were faulty.

Mother testified that she always provided DCS with a current address. She asserted

that from June 2012 through May 2013, DCS only came to her residence on one occasion.

She explained that she was not present for that visit because she did not know a visit had

been scheduled. She asserted that DCS never assisted her in finding employment. She

acknowledged that she was unemployed from March 2012 until December 2012. She

explained that she was in custody until June 2012 and that she gave birth to her fifth child

in August 2012. She asserted that once she found employment in December 2012, she

maintained her position until she tore her rotator cuff six weeks later. After recovering from

that injury, she was hired by Subway in March 2013 and maintained her employment until

her current arrest for failure to pay child support. She believed that she could return to work

at Subway once she was released and that at the very least, she had employment as a

caretaker for her friend’s mother, the aforementioned “elderly lady.”

Mother acknowledged that she was currently unable to parent the Child and that she

missed some visitation time with the Child. She explained that she had transportation issues

and was incarcerated or hospitalized on several different occasions throughout the Child’s

placement with DCS. She claimed that she asked DCS for assistance with transportation but

that she did not receive help until January 2013, when she was finally given a bus pass. She

asserted that despite her inability to maintain visitation,she enjoyed a “wonderful bond” with

the Child, who often expressed a desire to come home with her. She conceded that the Child

had trouble adjusting to her visitations at first.

Lisca Gaffney testified that she worked for DCS and that she was assigned to

Mother’s case in September 2012. She claimed that Mother failed to maintain contact with

her and that Mother also failed to maintain regular visitation with the Child. She recalled

that Mother often blamed her failure to visit on her health, transportation, or lack of housing.

She offered several bus passes and ultimately provided one bus pass to assist Mother in

maintaining visitation, but Mother still failed to maintain regular visitation. She recalled

observing the Child’s visitation with Mother and claimed that at first, the Child cried

inconsolably and did not want to participate in visitation. She stated that the Child was more

amenable to visitation once she included Lindsay B. (“Foster Mother”) in the visitations.

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Ms. Gaffney testified thatshe explained the requirements contained in the permanency

plans to Mother. She recalled providing Mother with a list of potential employers and

advising Mother concerning several options for completing the parenting classes. She also

administered four drug screens to Mother, who failed all four screens. She recalled that

Mother tested positive for marijuana on each test and had also tested positive for “benzos,

[] methadone, and cocaine” on different occasions. She stated that Mother denied using

drugs. She attempted to schedule a retest for Mother but explained that Mother was arrested

again before she was able to schedule the test. She acknowledged that Mother attempted to

complete an alcohol and drug assessment but that the facility was unable to evaluate Mother.

She recalled that the Child was born with drugs, namely marijuana and cocaine, in her

system. She related that Mother admitted using cocaine once and claimed that her doctor

advised her that marijuana was safe to smoke during pregnancy.

Ms. Gaffney testified that Mother did not provide her with proof of employment until

August 2013 and that she had been unable to visit Mother’s residence. She recalled that she

scheduled one visit for the residence in Ooltewah but that Mother was not present at the

appointed time. She related that she came to that residence a second time for an

unannounced visit only to find that Mother was not home. She asserted that at times, Mother

claimed to not have a residence and was reliant upon friends for a place to stay. She related

that Mother recently provided her with a lease between Mother and a friend. She was unable

to schedule a home visit because Mother was incarcerated again.

Ms. Gaffney testified that the Child currently resided in a foster home with parents

that wished to adopt her. She explained that the Child had lived in the home since her

removal from Mother and that the Child was “very bonded” to the family. She

acknowledged that Mother had made some progress but explained that Mother’s progress

occurred in the past few months. She claimed that Mother had not made sufficient progress

on the permanency plans that would justify returning the Child to Mother. She related that

the Child had been in custody for approximately 18 months and had ultimately found

permanency in a stable home with a family that was committed to her.

Foster Mother testified that the Child had resided in her home since March 2012. She

believed that the Child had bonded with the family, especially her children. She recalled that

the Child was initially reserved when visiting with Mother but that the Child eventually

adjusted to the visitations. She denied ever hearing the Child ask Mother to take her home.

She acknowledged thatshe had notsupervised the visitations in several months. She claimed

that she was willing to adopt the Child and that she already considered the Child as part of

her family.

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Following the presentation of the above evidence, the trial court terminated Mother’s

parental rights on the statutory grounds of abandonment for failure to visit, substantial

noncompliance with the permanency plans, and the persistence of conditions which led to

removal. The court further held that termination of Mother’s parental rights was in the best

interest of the Child. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal by Mother as follows:

A. Whether the trial court erred in relying upon the statutory ground of

abandonment for failure to visit when it was not added as a requirement in the

initial permanency plan.

B. Whether DCS sufficiently established that it made reasonable efforts to

reunify Mother with the Child.

C. Whether clear and convincing evidence supports the trial court’s finding

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

pursuant to Tennessee Code Annotated section 36-1-113(i).

III. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children.

Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.

1988). This right “is among the oldest of the judicially recognized liberty interests protected

by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d

643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave

and final decision, irrevocably altering the lives of the parent and child involved and

‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130

S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew

consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B.

v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).

While parental rights are superior to the claims of other persons and the government,

they are not absolute and may be terminated upon appropriate statutory grounds. See Blair

v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing

evidence of the existence of the grounds for termination of the parent-child relationship. In

re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon

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(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) [t]hat termination of the parent’s or guardian’s rights is in the best interest

[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing

evidence proves not only that statutory grounds exist [for the termination] but also that

termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

The existence of at least one statutory basis for termination of parental rights will support the

trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct.

App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.

2005).

The heightened burden of proof in parental termination cases minimizes the risk of

erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,

622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard

establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.

M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This

evidence also eliminates any serious or substantial doubt about the correctness of the

conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149

S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.

2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of

the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);

Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing

cases involving the termination of parental rights:

A reviewing court must review the trial court’s findings of fact de novo with

a presumption of correctness under [Rule 13(d) of the Tennessee Rules of

Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809

[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings

under [Tennessee Code Annotated section] 36-1-113, the reviewing court must

then make its own determination regarding whether the facts, either as found

by the trial court or as supported by a preponderance of the evidence, provide

clear and convincing evidence that supports all the elements of the termination

claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48

[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.

App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).

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Appellate courts conduct a de novo review of the trial court’s decisions

regarding questions of law in termination proceedings. However, these

decisions, unlike the trial court’s findings of fact, are not presumed to be

correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re

Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).

IV. DISCUSSION

A.

Although not raised as a separate issue, Mother asserts that the trial court erred in

relying upon the statutory ground of abandonment for failure to visit because it was not

added as a requirement in the initial permanency plan. She acknowledges that visitation was

included as a requirement in the second plan but notes that the second plan was not ratified

until April 10, 2013, six days prior to the filing of the termination petition. DCS responds

that it promptly scheduled visitation once Mother was released from incarceration but that

Mother failed to regularly visit the Child.

Abandonment for failure to visit is a statutory ground of termination that may be

applied regardless of whether a permanency plan is ever created to assist a parent in reuniting

with his or her child. See generally Tenn. Code Ann. § 36-1-102(1)(A)(i). Indeed, for the

purposes of termination proceedings, abandonment means that:

(i) For a period of four (4) consecutive months immediately preceding the

filing of a proceeding or pleading to terminate the parental rights of the

parent(s) or guardian(s) of the child who is the subject of the petition for

termination of parental rights or adoption, that the parent(s) or guardian(s)

either have willfully failed to visit or have willfully failed to support or have

willfully failed to make reasonable payments toward the support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i). A parent’s willful failure to visit the child “means the

willful failure, for a period of four (4) consecutive months, to visit or engage in more than

token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). Token visitation is defined as

“visitation, under the circumstances of the individual case, [that] constitutes nothing more

than perfunctory visitation or visitation of such an infrequent nature or of such short duration

as to merely establish minimal or insubstantial contact with the child.” Tenn. Code Ann. §

36-1-102(1)(C).

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In this case, Mother does not contend that she maintained regular visitation with the

Child. Mother was incarcerated when the initial permanency plan was created. Once Mother

was released, DCS scheduled visitation with Mother, who only engaged in token visitation

with the Child. Accordingly, we conclude that clear and convincing evidence supported this

statutory ground of termination. Mother does not challenge the trial court’s ruling

concerning the remaining statutory grounds for termination, namely substantial

noncompliance with the permanency plans and the persistence of conditions which led to

removal. In the event of further appellate review, we have reviewed the evidence supporting

each ground of termination and found clear and convincing evidence supporting each ground.

B.

Mother claims that DCS failed to assist her in her efforts to reunite with the Child.

She asserts that DCS merely provided her with a list of service providers in its effort to assist

her in completing her alcohol and drug assessment and her parenting classes. She also argues

that DCS failed to assist her in her efforts to obtain and maintain employment, failed to

maintain contact with her, failed to inspect her residence to ensure that it was suitable for

visitation with the Child, failed to assist her in her efforts to visit the Child, and failed to

honor her request for retesting following her failure of the drug screens. DCS responds that

it made reasonable efforts to assist Mother but that Mother “made no effort whatsoever to

complete even the initial step of having an alcohol and drug assessment, has failed every

drug screen, denies using illegal drugs and failed to maintain contact.”

Once a child has been removed from a parent’s home, DCS is tasked with making it

possible for the child to return home before instituting termination proceedings. Tenn. Code

Ann. § 37-1-166(a)(2). At the termination proceeding, DCS must prove by clear and

convincing evidence that reasonable efforts were made to reunite the child with the parent.

Tenn. Code Ann. § 37-1-166(b). For purposes of DCS’s involvement, the term reasonable

efforts refers to “the exercise of reasonable care and diligence by [DCS] to provide services

related to meeting the needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1).

“The reasonableness of [DCS’s] efforts depends upon the circumstances of the particular

case.” In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006).

“While [DCS’s] reunification efforts need not be “herculean,” DCS must do more

than simply provide the parents with a list of services and send them on their way.” Id.

“[DCS] employees must use their superior insight and training to assist the parents in

addressing and completing the tasks identified in the permanency plan.” Id. These

“employees have an affirmative duty to utilize their education and training to assist parents

in a reasonable way to address the conditions that led to the child’s removal and to complete

the tasks stated in the plan.” In re R.L.F., 278 S.W.3d 305, 316 (Tenn. Ct. App. 2008). In

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keeping with this ideal, DCS must provide an affidavit, identifying its reasonable efforts, for

the court’s consideration. Tenn. Code Ann. § 37-1-166(c); see In re R.L.F., 278 S.W.3d at

317. However, “‘[r]eunification of a family is a two-way street, and the law does not require

[DCS] to carry the entire burden of this goal.” State Dep’t. of Children’s Servs. v. S.M.D.,

200 S.W.3d 184, 198 (Tenn. Ct. App. 2006) (quoting In re R.C.V., No. W2001-02102-COAR3-JV, 2002 WL 31730899, at *11 (Tenn. Ct. App. Nov. 18, 2002)). “Thus, parents desiring

the return of their children must also make reasonable and appropriate efforts to rehabilitate

themselves and to remedy the conditions that required [DCS] to remove their children from

their custody.” In re Giorgianna H., 205 S.W.3d at 519.

In determining whether the efforts used by DCS were reasonable, the court should

consider DCS’s affidavit and the following factors:

(1) the reasons for separating the parent from his or her children,

(2) the parent’s physical and mental abilities,

(3) the resources available to the parent,

(4) the parent’s efforts to remedy the conditions that required the removal of

the children,

(5) the resources available to [DCS],

(6) the duration and extent of the parent’s remedial efforts,

(7) the closeness of the fit between the conditions that led to the initial removal

of the children, the requirements of the permanency plan, and [DCS’s] efforts.

In re Giorgianna H., 205 S.W.3d at 519.

The permanency plans at issue in this case were not particularly lengthy or hard to

follow. Ms. Gaffney advised Mother on the steps she needed to take to reunite with the

Child. When Mother was not incarcerated, DCS provided Mother with opportunities for

visitation, a bus pass, an alcohol and drug assessment, drug screens, and a list of potential

employers in the area. Mother was sporadic in her visitation efforts, was unable to complete

the assessment, and failed every drug screen she was given. Ms. Gaffney testified that she

advised Mother concerning several options for completing the parenting classes. Yet,

Mother failed to fulfill this requirement until well after the termination petition was filed.

Ms. Gaffney attempted to visit one of Mother’s several residences throughout her

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involvement with DCS. However, Mother was not present for the scheduled appointment.

We believe that Ms. Gaffney attempted to assist Mother and explained the steps of the

permanency plans but that Mother simply failed to put forth any effort to comply with the

most important requirements that would have allowed her to reunite with the Child, namely

to remain drug free and provide a stable home for the Child. Accordingly, we conclude that

the record contains clear and convincing evidence that DCS made reasonable efforts to assist

Mother in her attempts to reunite with the Children.

C.

Having concluded that there was clear and convincing evidence supporting the

statutory groundsto terminate Mother’s parental rights and that DCS made reasonable efforts

to assist Mother in reuniting with the Child, we must consider whether termination of

Mother’s rights was in the best interest of the Child. In making this determination, we are

guided by the following non-exhaustive list of factors:

(i) In determining whether termination of parental or guardianship rights is in

the best interest of the child . . . the court shall consider, but is not limited to,

the following:

(1) Whether the parent or guardian has made such an adjustment of

circumstance, conduct, or conditions as to make it safe and in the child’s best

interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment

after reasonable efforts by available social services agencies for such duration

of time that lasting adjustment does not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation or other

contact with the child;

(4) Whether a meaningful relationship has otherwise been established between

the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to

have on the child’s emotional, psychological and medical condition;

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

guardian, has shown brutality, physical, sexual, emotional or psychological

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abuse, or neglecttoward the child, or another child or adultin 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 or controlled substances 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 [section]

36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not require

a trial court to find the existence of each enumerated factor before it may conclude that

terminating a parent’s parental rights is in the best interest of a child.” In re M.A.R., 183

S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated that “when

the best interest[] of the child and those of the adults are in conflict, such conflict shall

always be resolved to favor the rights and the best interest[] of the child, which interests are

hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-101(d); see also

White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that when considering

a child’s best interest, the court must take the child’s perspective, rather than the parent’s).

A number of the best interest factors weigh against Mother. She had not made the

adjustment of circumstances necessary to provide a stable home for the Child as evidenced

by her incarceration at the time of the hearing. Tenn. Code Ann. § 36-1-113(i)(1), (2). She

failed to maintain regular visitation with the Child. Tenn. Code Ann. § 36-1-113(i)(3). The

Child resides in a safe and stable foster home that expressed a desire to adopt her. Tenn.

Code Ann. § 36-1-113(i)(5). Questions remain as to whether Mother can provide a safe and

stable home free from drug abuse. Tenn. Code Ann. § 36-1-113(i)(7). We acknowledge that

Mother obviously cared for the Child. However, her inability to accept responsibility for her

actions place doubt upon her ability to effectively parent the Child in the near future. The

Child needs permanency and stability, which she can receive from the foster parents who

have successfully parented her while Mother allowed the Child to languish in custody. With

all of the above considerations in mind, we conclude that there was clear and convincing

evidence to establish that termination of Mother’s parental rights was in the best interest of

the Child. Accordingly, we affirm the decision of the trial court.

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V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Amber W.

______________________________________

JOHN W. McCLARTY, JUDGE

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