IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 13, 2014

IN RE HANNAH H., ET AL.

Appeal from the Juvenile Court for Sevier County

Nos. 12-001690, -001692 Hon. Dwight E. Stokes, Judge

No. E2013-01211-COA-R3-PT-FILED-JUNE 10, 2014

This is a termination of parental rights case. Following a hearing, the trial court found clear

and convincing evidence existed to support the termination of the parental rights of both the

mother and the father on the statutory grounds of abandonment based on failure to provide

a suitable home, failure to substantially fulfill the requirements of the permanency plans, and

persistence of conditions. Tenn. Code Ann. §§ 36-1-113(g)(1)-(3), 36-1-102(1)(A)(ii), 37-2-

403(a)(2). The court further concluded that termination was in the best interest of the

children. Tenn. Code Ann. § 36-1-113(i). The mother and father appeal. Finding no

reversible error, 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.

Shauna L. Boyd, Kodak, Tennessee, for the appellant, Taymie B.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Justin F.

Robert E. Cooper, Jr., Attorney General and Reporter, and Jordan Scott, Assistant Attorney

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

Services.

Tim Gudmunson, Sevierville, Tennessee, Guardian ad Litem.
OPINION

I. BACKGROUND

Taymie B. (“Mother”) is the mother of Hannah H. (D.O.B. 5/31/02) and Justine R.

1

(D.O.B. 4/12/06) (collectively, “the Children”). Justin F. (“Father”) is Justine’s biological

father. Lance H. is Hannah’s father. A third child, Destiny, also lived with Mother and

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Father, but at the time of trial, she was in the custody of her father, David R. Parental rights

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relating to Destiny are not at issue in this appeal.

The first contact of the Department of Children’s Services (“DCS”) with this family

occurred after a domestic violence incident in June 2010, when Mother called the police and

attributed bruises on Hannah’s legs to physical abuse by Father. Mother and Father later

stipulated to a history of domestic violence, and the Children were adjudicated dependent and

neglected. Father eventually moved back in with the family on the stipulation that he would

complete anger management classes.

Subsequently, Mother obtained two orders of protection (November 2010 and

September 2011) against Father. She also obtained a no contact order against him after

Father began yelling and kicked a hole through a wall. In her petition for the second order

of protection, Mother related that: Father had a prior domestic violence charge; he had a

prior child abuse incident; he was not following through with his anger management

treatment; and she was in fear for the lives of herself and the Children.

On October 11, 2011, the Children came into DCS custody upon a petition for

temporary legal custody, in which it was alleged that: Hannah H. was severely abused due

to sexual abuse by Father; Mother had allowed ongoing contact between Hannah H. and

Father after the alleged abuse; Mother admitted to a history of domestic violence with Father;

and all three children were dependent and neglected. After an investigation, no charges were

filed against Father related to the purported sexual abuse, but the Children later were

adjudicated dependent and neglected based upon stipulations and findings that: Mother and

Father had a history of domestic violence; the Children had witnessed the violence; and

Mother and Father had unstable housing, transportation, and income.

Taymie B. also appears in the record as Taymie R. 1

Lance H. surrendered his parental rights prior to the proceedings in November 2012. 2

David R. is the “legal” father of Justine. He acknowledged that he is not the biological father of 3

either child at issue in this matter.

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At the time of the removal, despite there being an active order of protection against

him, Father was in the home with Mother and the Children when DCS arrived. Father

4

acknowledged at trial that he had been residing with Mother and the Children: “We had a

very stable house. Our kids were going to school. They were in daycare. . . .” He further

testified that he only moved out of the home after DCS removed the Children: “I ha[d] not

resided anywhere except my home until you abducted my children.” Father further described

their living arrangement as lasting six or seven years through the date of removal:

5

Well, if you were a single mother and you had someone residing with you for

six, seven years taking care of you as a family and then all of a sudden – your

kids get abducted and the man has to leave because you can’t get your kids

back if you stay with this man[.]

After the removal, during the course of her therapy, Hannah divulged additional

allegations of physical abuse by Father. She informed the therapist: “He would hurt me” and

“I was abused.” Hannah related to the therapist that she did not “want to go back to that.”

DCS developed and ratified a permanency plan on October 24, 2011, and another on

April 5, 2012. Mother’s plans required her to: continue therapy; complete domestic violence

counseling through the YWCA or other approved entity; and demonstrate parenting skills,

including the ability to protect. Her plans also required that she: submit to random drug

screens; maintain adequate housing, a legal source of income, and reliable transportation;

ensure that child-care providers are approved by DCS and the guardian ad litem; abide by all

court orders and attend all court hearings; comply with the terms of the probation and refrain

from obtaining new charges; pay child support; participate in family therapy when deemed

appropriate; obtain education regarding the care of a sexually abused child; establish a safety

plan; comply with medication management; and complete a parenting assessment.

The goal of Father’s plans was to address his anger and domestic violence issues. He

wasrequired to: successfully complete anger-management and domestic violence education;

submit to a parenting assessment and follow all recommendations; and display appropriate

parenting skills. His plans also required him to maintain adequate housing, comply with all

court orders, comply with his probation and not obtain any new charges, pay child support,

submit to random drug screens, undergo psychosexual evaluation, attend all court hearings,

maintain reliable transportation, comply with DNA testing, obtain education concerning

He escaped through a screen in the back of the home. 4

These statements discredit Father’s argument on appeal that the Children were removed from 5

Mother’s home rather than “his” home.

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sexually abused children, establish a safety plan, and participate in family therapy when

appropriate.

During the first four months following removal, Mother located housing at Safe

Space, a domestic violence shelter, and DCS attempted to set up counseling. DCS explained

the requirements of the permanency plan to Mother, made attemptsto verify her employment,

and referred her to a DCS-funded parenting and psychological assessment. However, Mother

soon moved to West Tennessee to reside with her father, an alcoholic with prior charges of

domestic abuse who, according to Father, “did [Mother] wrong and stuff.” Mother

contended that she made the move to avoid DCS because she felt harassed. The DCS

caseworker nevertheless discussed counseling with Mother and urged her to enroll in therapy

in West Tennessee. DCS arranged gas cards for Mother to travel back to East Tennessee for

visits with the Children, but the cards were never picked up.

When Mother eventually returned to East Tennessee, DCS once again contacted

service providers for her. DCS arranged free parenting classes; provided supervised

visitation through a third-party provider; provided transportation for the Children to visits;

conducted a home study; provided the Children with psychological, medical, and dental care;

provided the Children with transportation to appointments; and invited Mother to child and

family team meetings. Despite DCS’s efforts, her caseworker described Mother as

“confrontational and demanding.”

Mother continued to be resistant to establishing counseling or domestic violence

therapy despite DCS urging her to submit to such services. She even lied to DCS about

starting counseling prior to ever pursuing it. She did not begin counseling until July 2012,

approximately nine months after the removal of the Children from her custody. Her therapist

testified at trial that she initially referred Mother to a skills-focused group to learn how to

protect herself from domestic violence, but Mother attended only one session. A couple of

months later – after DCS filed for termination – Mother began attending a weekly women’s

support group, but only provided proof of attendance for three sessions in the span of three

months. The therapist opined that this support group did not provide the necessary skills

Mother needs to protect herself and the children from domestic violence. She maintained

that Mother needed a skills-focused group like the first referral. The therapist observed that

Mother “tends to be more anxious around [Father].”

For much of this case, Mother maintained housing. However, the DCS caseworker

testified that Mother was evasive and would not provide requested documentation regarding

housing, employment, or other income on a regular basis.

Father initially was unavailable to DCS, as he was in jail at least twice in the first four

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months after removal. He admitted that his time in jail hindered DCS from providing him

with services. He did not contact DCS for the first time until almost five months after the

Children were removed, at which time Father left a lengthy, confrontational message for a

DCS caseworker and was “very aggressive.” As a result, the caseworker became concerned

about the safety of visits in Mother’s home and discontinued them. After his release from

incarceration, Father refused to give an address or any information about where he was

staying or what he was going to be doing. Despite denying that he was homeless when not

incarcerated, Father never obtained housing in his name. Rather, he relied on friends and a

support network to house him. He lived with a friend and then began living with Mother’s

parents about a month prior to the trial. He did not pay rent at Mother’s parent’s home. Prior

to trial, Father was in jail on two additional occasions.

For Father, DCS funded a comprehensive parenting assessment that included

observation of him with Justine, arranged free parenting classes, invited Father to child and

family team meetings, explained the permanency plans and the criteria for termination,

referred Father to domestic violence treatment, and funded his enrollment in Team Dad (a

program covering a broad spectrum of parenting and life skills). DCS also attempted to work

with Father to help him complete the unfinished requirements of the plans.

When Father ultimately submitted to the parenting assessment over a year after the

Children were removed, he did not follow its recommendations. Most importantly, Father

did not enroll in dedicated domestic violence training as required by the permanency plans.

He did enroll in the Team Dad course, and he claimed at trial that he was told it would

“address it all.” However, this program only devoted 90 minutes to domestic violence.

Further, he provided no proof of completion of it until months later. The Team Dad

caseworker related at trial that the program “could not be described as a domestic violence

course,” and a DCS caseworker observed that the program only addressed domestic violence

“a very small amount.” It also is noteworthy that Father did not request phone calls with

Justine.

During the time frame of this case, Mother became engaged to another man against

whom an order of protection had been entered by a previous girlfriend. According to

Mother, the relationship ended when someone told DCS that the boyfriend was molesting his

daughter, and he “felt like he was being trapped by the Department,” since Mother had lost

custody of the Children.

Meanwhile, Hannah and Justine were living in an appropriate pre-adoptive foster

home. The DCS case worker testified that the Children were loving and warm toward the

foster family and would initiate physical contact and approach the foster parents for hugs.

It was reported that Hannah stated the foster father was one of the first people who did not

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lie to her, and that she viewed him as a positive male figure in her life. The foster mother

testified that she was employed and able to provide for the Children long term. The home

was described as clean and large enough to accommodate the Children. There had been an

incident involving lice, but the matter was addressed by the foster family. Hannah was in

Girl Scouts and both girls played softball. Hannah was making good grades, and Justine was

doing well in daycare. The Children further engaged in swimming, biking, and boating with

the foster family. The foster mother related that she loved the Children “very much.”

Hannah’s therapist opined that a change in caretakers would be detrimental.

On October 23, 2012, DCS filed a petition to terminate parental rights. Later at trial

on March 22 and April 12, 2013, Father trivialized two episodes of abuse. When describing

one incident, Father explained that he left bruises on Hannah’s legs because she kept moving

around during a spanking he was giving her with a yardstick. In a second incident, he held

Hannah over a toilet, placed her hair in the water, and flushed. He denied the incident was

punishment, claiming instead that it was a “big joke.” Father indicated that he believed

domestic violence to be commonplace and trivial; he commented: “don’t we all have a

history of domestic violence?” Further, despite claiming that anger issues were no longer a

part of his life, Father had numerous angry outbursts at trial. The court noted that it

“witnessed first-hand [Father’s] inability to control himself and to control his anger. Even

his Counsel did not have the ability to control him.”

Mother acknowledged during her trial testimony that if she recovered custody of the

Children, Father could not be around them unsupervised until he completed “some type of

class to help him learn how to handle his emotions.” Mother related her awareness that DCS

did not approve of her continuing relationship with Father while his domestic violence issues

went untreated, but she nevertheless continued letting him stay in her house approximately

three nights per week. Father informed the court that, “[i]n God’s eyes,” he was married to

Mother, and he referred to Mother’s parents asfather-in-law and mother-in-law. They owned

a vehicle jointly, and Mother provided Father with transportation for Team Dad classes and

court dates – even driving to court together for the trial. Mother observed that she turned to

Father if she needed help with anything because they were “kind of like a support group for

each other.”

Mother and Father both admitted at trial that they used marijuana to help with their

stress. At a child and family team meeting approximately three months after DCS petitioned

for termination, Mother admitted that she would test positive for marijuana. Just weeks

before the trial,she failed a drug screen, testing positive for benzodiazepines, marijuana, and

oxycodone. In a subsequent drug and alcohol assessment, she admitted that she had been

using marijuana and oxycodone. On the day of trial, Mother admitted that she would test

positive for benzodiazepines, which she used to manage panic attacks. She never provided

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a prescription for the benzodiazepines or the oxycodone. Despite only discovering Mother’s

drug use a short time before the termination trial began, DCS immediately began providing

services to address the issue.

At the conclusion of the trial, the court found that DCS had proven three grounds for

termination of parental rights by clear and convincing evidence: (1) abandonment for failure

to provide a suitable home; (2) substantial noncompliance with the permanency plans; and

(3) persistent conditions.

The trial court determined that there was a “substantial history of domestic violence,”

and that Mother and Father willfully failed to provide a suitable home for the children in that

they “have created conditions . . . which render it unsafe, namely, their total denial of the

domestic violence.” The court noted that Mother and Father, lacking in credibility, “have

made light of the domestic violence issues, acting like they do not exist, minimizing the

conditions in the home and a complete failure to comply with the permanency plan. . . .

[Their] actions render the home unsafe.” The court observed that Mother and Father failed

to take advantage of “significant” services offered by DCS and had not “adequately

addressed domestic violence in any way that even remotely resolve[d] the problem.” The

court continued: “There cannot be a proper home, a safe home, a stable home when the

mother continually elects the relationship with [Father] over her obligations in regard to the

children.” The court further found that the presence of drugs and alcohol in the home

rendered it unsafe along with Father’s inability to control his anger. The trial court held that

Mother and Father had “failed to comply in a substantial manner with those reasonable

responsibilities set out in the [permanency] plans. . . .” Finally, the court concluded that

termination of Father’s and Mother’s parental rights was in the best interest of the Children.

Accordingly, the court terminated their parental rights on April 30, 2013. Mother and Father

filed a timely appeal.

II. ISSUES

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

follows:

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

termination of the parental rights of Mother and Father on the grounds of

persistence of conditions, abandonment by failure to establish a suitable home,

and substantial noncompliance with their permanency plans.

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

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determination that termination of the parental rights of Mother and Father was

in the Children’s best interest.

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] court must determine that clear and convincing evidence

proves not only that statutory grounds exist [for 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 rightstermination cases minimizesthe 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.

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The Tennessee Supreme Court has provided guidance 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 thatsupports 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).

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) (emphasis added).

IV. DISCUSSION

A. GROUNDS FOR TERMINATION

Tennessee Code Annotated section 36-1-113 provides the grounds for termination of

parental rights. The applicable provisions read as follows:

36-1-113. Termination of parental rights. – (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 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:

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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) That termination of the parent’s or guardian’s rights is in the

best interests of the child.

* * *

(g) Initiation of termination of parental or guardianship rights may be based

upon any of the grounds listed in this subsection (g) . . . :

(1) Abandonment by the parent or guardian, as defined in 36-1-

102, has occurred;

(2) There has been substantial noncompliance by the parent or

guardian with the statement of responsibilities in a permanency

plan pursuant to the provisions of title 37, chapter 2, part 4;

(3) The child has been removed from the home of the parent or

guardian by order of a court for a period of six (6) months and:

(A) The conditions that led to the child’s removal or

other conditions that in all reasonable probability would

cause the child to be subjected to further abuse or neglect

and that, therefore, prevent the child’s safe return to the

care of the parent(s) or guardian(s), still persist;

(B) There is little likelihood that these conditions will be

remedied at an early date so that the child can be safely

returned to the parent(s) or guardian(s) in the near future;

and

(C) The continuation of the parent or guardian and child

relationship greatly diminishes the child’s chances of

early integration into a safe, stable and permanent home

. . . .

Tenn. Code Ann. § 36-1-113(a), (c), and (g)(1)-(3)(A)-(C). The party petitioning for

termination carries the burden of proof. In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App.

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2004). The requirements ensure that each parent receives the constitutionally required

“individualized determination that a parent is either unfit or will cause substantial harm to

his or her child before the fundamental right to the care and custody of the child can be taken

away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

(1) ABANDONMENT FOR FAILURE TO PROVIDE A SUITABLE HOME

We first consider the trial court’stermination of parental rights based on abandonment

for the failure to provide a suitable home. A parent may be found to have abandoned his or

her child by failing to establish a suitable home. The relevant statutory provision provides

that abandonment for the failure to provide a suitable home occurs when

The child has been removed from the home of the parent(s) or guardian(s) as

the result of a petition filed in the juvenile court in which the child was found

to be a dependent and neglected child, as defined in § 37-1-102, and the child

was placed in the custody of the department or a licensed child-placing agency,

that the juvenile court found, or the court where the termination of parental

rights petition is filed finds, that the department or a licensed child-placing

agency made reasonable efforts to prevent removal of the child or that the

circumstances of the child’s situation prevented reasonable efforts from being

made prior to the child’s removal; and for a period of four (4) months

following the removal, the department or agency has made reasonable efforts

to assist the parent(s) or guardian(s) to establish a suitable home for the child,

but that the parent(s) or guardian(s) have made no reasonable effortsto provide

a suitable home and have demonstrated a lack of concern for the child to such

a degree that it appears unlikely that they will be able to provide a suitable

home for the child at an early date. The efforts of the department or agency to

assist a parent or guardian in establishing a suitable home for the child may be

found to be reasonable if such efforts exceed the efforts of the parent or

guardian toward the same goal, when the parent or guardian is aware that the

child is in the custody of the department[.]

Tenn. Code Ann. § 36-1-102(1)(A)(ii). Termination pursuant to the ground of abandonment

for failure to provide a suitable home requires a finding, supported by clear and convincing

evidence, that a parent failed to provide a suitable home for his or her child even after DCS

assisted that parent in his or her attempt to establish a suitable home. Tenn. Code Ann. § 36-

1-102(1)(A)(ii). See generally In re R.L.F., 278 S.W.3d 305, 315-16 (Tenn. Ct. App. 2008)

(providing that DCS must submit clear and convincing evidence to establish that it expended

reasonable efforts in assisting the parent when a termination ground based upon DCS’s

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efforts is implicated). The four-month time period relevant to our analysis of this issue is

October 11, 2011, to February 11, 2012.

A “suitable home requires more than a proper physical living location.” State v. C.W.,

No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007).

It requires that the home be free of drugs and domestic violence. Id.

DCS’s efforts do not need to be “Herculean.” DCS is required to use its “superior

insight and training to assist parents with the problems DCS has identified in the permanency

plan, whether the parents ask for assistance or not.” State, Dep’t of Children’s Servs. v.

Estes, 284 S.W.3d 790, 801 (Tenn. Ct. App. 2008). DCS does not bear the sole

responsibility. Parents also must make reasonable efforts toward achieving the goals

established by the permanency plan to remedy the conditions leading to the removal of the

child. Id. The burden is on the state to prove by clear and convincing efforts that its efforts

were reasonable under the circumstances. Id.

Father

After contact was established with Father by DCS, he was aggressive and

confrontational. It appears he never obtained his own housing, and he refused to give an

address or any information about where he was staying or what he was going to be doing.

Father did not begin working the permanency plans until after DCS filed its petition for

termination, and he did not follow the recommendations of the parenting assessment.

Significantly, he failed to complete domestic violence treatment and continued having angry

outbursts. Father did not provide proof of completion of the Team Dad program until months

later. In addition, he admitted to drug use. He never requested phone calls with his daughter.

Accordingly, despite reasonable efforts by DCS, Father did not provide a suitable

home due to his lack of housing, drug use, and untreated domestic violence and anger issues.

The efforts of DCS were frustrated by Father’s lack of cooperation. Father’s lack of concern

throughout the entirety of this case, and his unwillingness to remedy his domestic violence,

anger, and housing issues, demonstrated a lack of concern for the welfare of the Children that

rendered him incapable of providing a suitable home at an early date. The evidence of record

supports the determination of the trial court that the parental rights of Father should be

terminated pursuant to this ground.

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Mother

Admittedly, Mother maintained housing, had intermittent employment, and completed

a parenting class, but she did little to address the major concern in this case: domestic abuse.

Mother was evasive and did not provide documentation of housing or employment on a

regular basis. Even when she finally began therapy – over nine months after the removal of

the Children – she made little progress until shortly before the trial. Her resistance to

therapy and her lack of progress prevented the therapy from fully addressing the domestic

violence issues. Mother also continued her relationships with abusive men.

Further, Mother began using drugs. The continuing presence of an abusive boyfriend

and drug abuse rendered Mother’s home unsuitable. See State v. C.W., No. E2007-00561-

COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007). Mother’s drug use

and her failure to address the domestic violence issues and/or end her relationship with

Father demonstrate a lack of concern for the welfare of the Children such that it was unlikely

that the conditions would be remedied at an early date. See In re T.S., No. M1999-01286-

COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000). Accordingly, the trial

court correctly terminated her parental rights under this ground. The record supports the trial

court’s finding that DCS made reasonable efforts to assist Mother over the specific fourmonth period and the entirety of the case. Despite these efforts, Mother failed to establish

a suitable home.

(2) SUBSTANTIAL NONCOMPLIANCE WITH PERMANENCY PLANS

We next address termination of parental rights based on substantial noncompliance

with the permanency plans asset forth in Tennessee Code Annotated section 36-1-113(g)(2).

A court may terminate parental rights when a parent is in “substantial noncompliance . . .

with the statement of responsibilities in a permanency plan or a plan of care.” Tenn. Code

Ann. § 36-1-113(g)(2). Under this ground, the court must first find that the plan

requirements are reasonable and related to conditions that necessitate foster care placement.

Tenn. Code Ann. § 37-2-403; see In re Valentine, 79 S.W.3d at 547. Conditions that

necessitate foster care placement “include conditions related both to the child’s removal and

to family reunification.” In re Valentine, 79 S.W.3d at 547 (finding a stable housing

requirement reasonable and related to conditions necessitating foster care placement even

though the reason for removal was abuse). The trial court must then find that the

noncompliance is substantial. In re M.J.B., 140 S.W.3d at 656. To assess a parent’s

substantial noncompliance with a permanency plan, the court must weigh “both the degree

of noncompliance and the weight assigned to that particular requirement.” In re Z.J.S., No.

M2002-02235-COA-R3-JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. Jun. 3, 2003).

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Domestic violence was the primary reason the Children came into custody and

domestic violence was the most important issue in this case. Accordingly, the permanency

plans for Mother and Father sought to remedy this condition. Such requirements were

reasonable and related to the primary condition preventing family reunification.

Father

Father’srequirements were reasonable and related to the domestic violence issues and

other issues preventing reunification that were present in the case. However, Father failed

to complete the domestic violence course that DCS referred him to, arguing instead that he

satisfied the treatment requirement in the permanency plan by enrolling in Team Dad. DCS

established that Team Dad was not an adequate substitute for domestic violence treatment.

Father did complete a parenting assessment, but he did not follow through with the

recommendations, including one that he complete an anger management evaluation and

domestic violence treatment. Father continued having outbursts of anger. He also had been

without a home since he was released from jail, relying instead on the goodwill of others for

housing. The proof established that the trial court correctly terminated Father’s parental

rights under this ground.

Mother

We acknowledge that Mother addressed certain requirements of the permanency

plans. However, she did not complete any of the action steps directly related to domestic

violence, the most important issue in the case. Mother did not submit to therapy until nine

months after her Children were removed, and even after she began therapy, she made little

progress until shortly before the trial. She attended one session of the skill training classes

required by the plans and only sporadically attended her support group. Mother also failed

to demonstrate the ability to protect her Children by continuing her relationships with abusive

men. Mother’s noncompliance was substantial. Accordingly, the trial court correctly

terminated her parental rights under this ground.

(3) PERSISTENCE OF CONDITIONS

A court may terminate parental rights for persistence of conditions when a child has

been removed from the home of the parent by a court order for at least six months and

conditions preventing the safe return of the child to the parent’s custody still persist. Tenn.

Code Ann. § 36-1-113(g)(3)(A). This ground also requires the trial court to find that there

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is “little likelihood that these conditions will be remedied at an early date,” and that the

“continuation of the parent . . . and child relationship greatly diminishes the child’s chances

of early integration into a safe, stable and permanent home.” Tenn. Code Ann. § 36-1-

113(g)(3)(B)-(C).

The conditions supporting this ground need not be the same conditions that led to the

child’s removal. See In re M.A.R., 183 S.W.3d 652, 664 (Tenn. Ct. App. 2005). Instead, this

ground can also exist on the basis of “other conditions that in all reasonable probability

would cause the child to be subjected to further abuse or neglect.” Tenn. Code Ann. § 36-1-

113(g)(3)(A). Such other conditions can include domestic violence and drug use. See In re

B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *15 (Tenn. Ct. App. Mar. 2,

2009).

Father

Father admitted to a history of domestic violence while living with Mother and the

Children, but he failed to remedy his anger issues. He did not enroll in domestic violence

training as required by the permanency plans and encouraged by DCS. The record and his

trial testimony reveal that he trivialized the abuse he inflicted on the Children. He admitted

to using illegal drugs after DCS filed its petition for termination.

Due to the fact that Father appeared unable to recognize that his domestic violence

issues needed to be addressed and that he needed dedicated domestic violence treatment,

Father was unlikely to remedy this condition at an early date. His inability to address his lack

of housing, drug use, and pattern of criminal behavior throughout the course of the case

likewise indicated that he was unlikely to remedy the conditions preventing him from

regaining custody of Justine at an early date. Accordingly, allowing this case to languish

without evidence of a commitment by Father to appropriately address his domestic violence

issues would have greatly diminished Justine’s early integration into a safe, stable, and

permanent home through the adoption process. Therefore, the trial court correctly terminated

Father’s parental rights pursuant to this ground.

Mother

We acknowledge that Mother established housing and transportation. She regularly

visited her Children and appeared for child and family team meetings and court hearings.

However, Mother has continued her relationship with Father – who abused her and the

Children – and started using drugs. Mother admits that Father has ongoing anger issues, that

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it was unsafe for him to be near the Children unsupervised, and that he still needed “some

type of class to help him learn how to handle his emotions.” Remaining in an abusive

relationship can constitute a persisting condition warranting termination under this ground.

See, e.g., In re B.D., 2009 WL 528922, at *15.

Despite Mother’s pattern of subjecting herself to abusive relationships, she failed to

take advantage of skills-focused domestic violence victim training and was resistant to

counseling. Her refusal to end the abusive relationship or submit to treatment coupled with

the addition of her drug abuse demonstrates that she has continued choosing her own desires

over the well-being of the Children. Accordingly, these conditions would not likely have

been remedied at an early date such that the Children could return to her care. Further,

termination was necessary to allow the Children to accomplish early integration into a safe,

stable and permanent home. Therefore, the trial court correctly terminated Mother’s parental

rights on this ground.

In this case, clear and convincing evidence supports the trial court’s termination of

Father’s and Mother’s parental rights on the grounds of abandonment by failure to establish

a suitable home, substantial noncompliance with the permanency plans, and persistence of

conditions.

B. BEST INTEREST

Having concluded that there was clear and convincing evidence supporting the

statutory grounds to terminate the parental rights of Mother and Father, we must consider

whether termination of their parental rights was in the best interest of the Children. In

making this determination, we are guided by the non-exhaustive list of factors provided in

Tennessee Code Annotated section 36-1-113:

(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

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agencies for such duration of time that lasting adjustment does

not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular

visitation or other contact with the child;

(4) Whether a meaningful relationship has otherwise been

established between the parent or guardian and the child;

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

is likely to have on the child’s emotional, psychological and

medical condition;

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

the parent or guardian, has shown brutality, physical, sexual,

emotional or psychological abuse, or neglect toward the child,

or another child or adult in the family or household;

(7) Whether the physical environment of the parent’s or

guardian’s home is healthy and safe, whether there is criminal

activity in the home, or whether there is such use of alcohol,

controlled substances or controlled substance analogues as may

render the parent or guardian consistently unable to care for the

child in a safe and stable manner;

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

status would be detrimental to the child or prevent the parent or

guardian from effectively providing safe and stable care and

supervision for the child; or

(9) Whether the parent or guardian has paid child support

consistent with the child support guidelines promulgated by the

department pursuant to [section] 36–5–101.

Tenn. Code Ann. § 36-1-113(i) (Supp. 2012). “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

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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).

Here, neither Mother nor Father made a lasting “adjustment of circumstance, conduct,

or conditions” under factors (1) and (2) to make it safe for the Children to return to their care.

The domestic violence problems have not been addressed by either parent in therapy or skills

courses. Father still has anger issues and has yet to obtain proper housing. Mother has

started using drugs and continues to allow Father to frequent her residence. Under factor (5),

the therapist testified that Hannah did not want to return to Mother’s care when she

discovered that Father was still in the picture and that a change in caretakers would be

detrimental. The record reveals that the Children are living in an appropriate pre-adoptive

foster home. Under factor (6), Father subjected the family to domestic abuse when they lived

together, and under factor (7), both parents admitted to using illegal drugs. The record as a

whole clearly and convincingly shows that the best interest of the Children would not be

served by preservation of the parental rights of Mother and Father. We find that the trial

court correctly concluded that termination was in the best interest of the Children.

V. CONCLUSION

The judgment of the trial court is affirmed. This cause is remanded to the trial court

for enforcement of the court’s judgment and collection of costs below. Costs on appeal are

assessed one-half to appellant Taymie B. and one-half to appellant Justin F.

_________________________________

JOHN W. McCLARTY, JUDGE

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