IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 6, 2013

IN RE J.B. JR. ET AL.

Appeal from the Juvenile Court for Blount County

No. 21861 William Terry Denton, Judge

No. E2013-01677-COA-R3-PT-FILED-FEBRUARY 27, 2014

J.B. (“Mother”) appeals the termination of her rights to her minor children, J.B. Jr. and J.B.

(“the Children”). The Department of Children’s Services (“DCS”) was involved with the

1

family going back to 2006. In 2009, the Children were taken into emergency, protective

custody predicated on allegations of illegal drug use, failure to protect from sexual abuse, and

domestic violence. The Children were adjudicated dependent and neglected and placed in

foster care. A year later, DCS filed a petition to terminate Mother’s parental rights. It

alleged that Mother abandoned the Children and that she failed to resolve the issues that led

to their removal. Following a bench trial, the court found, by clear and convincing evidence,

that multiple grounds for termination exist and that termination is in the best interest of the

Children. On this appeal, Mother challenges only the best interest determination. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

John T. Sholly, Knoxville, Tennessee, for the appellant, J.B.

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

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

Children’s Services.

The record indicates that the Children’s biological father, J.W.B., voluntarily surrendered his 1

parental rights before the petition to terminate was filed. He is not a party to this appeal.
OPINION

I.

In 2006, the Children spent two days in the custody of DCS. Father was in jail and

Mother lived elsewhere. In May 2009, DCS again took the Children into protective custody

2

after both parents were found to be abusing drugs. In addition, DCS received a report that

the Children were being sexually abused by a homeless man whom Father had invited to

move in with the family. On the day the Children were removed, Mother left the home

before DCS arrived. Later, she fled to her home state of Oregon where she has remained

throughout these proceedings. The Children, then ages five and six, were declared

dependent and neglected and entered foster care. They were placed together in a preadoptive foster home in Dandridge.

On March 8, 2012, DCS filed a petition seeking to terminate Mother’s parental rights.

The matter came on for trial on June 10, 2013. Mother was not present and her counsel

requested a continuance. Counsel asserted that Mother was unable to accomplish the tasks

required of her by DCS as a predicate to regaining custody and could not attend the trial

because she resided in Oregon and had recently been released to probation in that state. The

trial court denied the motion. At the time of trial, the Children had been in foster care for

more than four years. Mother had spoken with them by telephone, but had not had physical

contact with them since 2009. The Children, then nine and ten, had remained in their same

foster home for over four years.

DCS case worker Lisa Hatcher handled the Children’s case from the start. She was

the only witness to testify at trial. DCS developed an initial permanency plan for the

Children in June 2009. It required Mother to address domestic violence, alcohol, and drug

issues; provide a safe, stable home for the Children; obtain a legal source of income; resolve

pending legal issues; complete a mental health assessment and follow recommendations; and

maintain contact with DCS. Shortly after Mother returned to Oregon, she was arrested and

went to prison. She was incarcerated from July 2009 through April 2010 before being

released on parole. In September 2010, DCS requested a study of Mother’s home which was

denied because Mother failed to cooperate with the efforts of the Oregon authorities. Mother

served several brief stints in the county jail for parole violations and was most recently

released in June 2012. She was not incarcerated at any time during the four months prior to

the filing of the termination petition. In addition to Ms. Hatcher’s testimony, the court

received evidence in the form of 36 exhibits. The exhibits largely comprised the case file and

The record suggests that Mother lived in Montana at the time. 2

-2-
included the protective custody order, the permanency plan and its multiple revised forms,

and affidavits of reasonable efforts by DCS.

At the close of the proof, the trial court found, by clear and convincing evidence, that

grounds for terminating Mother’s rights exist. Specifically, the court found that DCS had

proven abandonment by willful failure to visit, willful failure to support, and failure to

provide a suitable home; persistence of the conditions that brought the Children into state

custody; and substantial noncompliance with the terms of the permanency plan. The court

concluded that it was “in the best interest of these children that the relationship of parent and

child, between [the Children], and their mother . . . , be terminated and the children be made

available for adoption.” Mother timely filed a notice of appeal.

II.

Mother presents the following issues for our review as taken verbatim from her brief:

1. Were the testimony and exhibits presented at trial sufficient

to prove by clear and convincing evidence that the termination

of Mother’s parental rights is in the best interest of the

Children?

2. Did the trial court explicitly state at trial any specific factors

that support its decision that the termination of Mother’s

parental rights is in the best interest of the Children?

3. Did the Court’s opinion stated at the conclusion of the trial,

or the Final Order, indicate that the Court considered such

factors?

III.

With respect to parental termination cases, this Court has observed:

It is well established that parents have a fundamental right to the

care, custody, and control of their children. While parental rights

are superior to the claims of other persons and the government,

they are not absolute, and they may be terminated upon

appropriate statutory grounds. A parent’s rights may be

terminated only upon “(1) [a] finding by the court by clear and

convincing evidence that the grounds for termination of parental

-3-
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.” Both of these elements must be

established by clear and convincing evidence. Evidence

satisfying the clear and convincing evidence standard establishes

that the truth of the facts asserted is highly probable, and

eliminates any serious or substantial doubt about the correctness

of the conclusions drawn from the evidence.

In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 at *11-12 (Tenn. Ct. App.

E.S., filed Oct. 4, 2011) (citations omitted). On our review, 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 preponderance of the evidence is

against those findings. Id.; Tenn. R. App. P. 13(d). Great weight is accorded the trial court’s

determinations of witness credibility, which court findings will not be disturbed absent clear

and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.

2002). Questions of law are reviewed de novo with no presumption of correctness.

Langschmidt v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002).

IV.

Taken together, the issues raised by Mother essentially challenge the sufficiency of

the evidence relied upon by the court to support its termination order. She asserts that the

limited testimony and exhibits at trial do not rise to the required level of “clear and

convincing” evidence. In a related argument, Mother contends that the termination order

cannot stand because the trial court made no findings, explicit or implicit, to indicate that it

even considered, much less applied, the statutory “best interest” factors in making its ruling.

Again, we are mindful that, before terminating a parent’s rights, a court must

determine that two things have been clearly and convincingly proven – “not only that

statutory grounds exist but also that termination is in the child’s best interest.” In re

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)(citing Tenn. Code Ann. § 36-1-113(c)). As we

have already noted, Mother does not dispute that grounds for termination were established.

Nevertheless, we have considered the evidence pertaining to grounds for termination. We

hold that the evidence does not preponderate against the trial court’s findings, said to be

made by clear and convincing evidence, of multiple grounds for abandonment. See In re

Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010).

-4-
In considering the issue of “best interest,” we are guided by the following statutory

factors set forth in Tenn. Code Ann. § 36-1-113(i)(Supp. 2013). That section provides:

In determining whether termination of parental or guardianship

rights is in the best interest of the child pursuant to this part, the

court shall consider, but is not limited to, the following:

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

of circumstance, conduct, or conditions as to make it safe and in

the child’s best 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 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;

-5-
(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.

“The above list is not exhaustive and there is no requirement that all of the factors must be

present before a trial court can determine that termination of parental rights is in a child’s

best interest.” State Dep’t of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502 (Tenn. Ct.

App. 2007) (citing Dep’t of Children’s Servs. v. P.M.T., No. E2006-00057-COA-R3-PT,

2006 WL 2644373, at *9 (Tenn. Ct. App. Sept. 15, 2006)).

Mother points out, correctly, that the trial court did not identify the specific statutory

factors relied upon by the court as support for the proposition that termination is in the best

interest of the Children. Our review of the record, however, leads us to conclude that, en

route to its decision, the court properly considered the evidence in light of the applicable

factors. In its termination order, the trial court set forth the following “findings of fact”:

FSW Hatcher testified that [Mother] completed two alcohol and

3

drug assessments during this case and was recommended to

complete an intensive outpatient drug rehabilitation program.

[Mother] was in prison in Oregon for a time period and enrolled

in such a program through the prison, however, voluntarily left

. . . prior to completion and to date has failed to complete an

intensive outpatient drug rehabilitation program. FSW Hatcher

testified that [Mother] also completed two mental health

assessments during this case which recommended that she

receive[] mental health counseling. [Mother] never complied

with the counseling recommendation and she never completed

the domestic violence classes or the non-offender classes.

[Mother] was in and out of jail and/or prison in Oregon during

the majority of this case. FSW Hatcher testified that she made

numerous efforts to assist [Mother] in completing her

permanency plan . . . . Sometime in the summer of 2012

“Family Service Worker.” 

3

-6-
[Mother] was charged with a violation of probation resulting

from a failed drug screen.

FSW Hatcher testified that shortly after [Mother] moved to

Oregon in 2009 she was arrested and remained incarcerated until

April 2010 when she was released on parole. FSW Hatcher

requested a home study of [Mother’s] home in September 2010

. . . . The State of Oregon denied the placement request citing

[Mother’s] failure to cooperate [that] prevented them from

completing the home study.

FSW Hatcher testified that [Mother] has not visited the children

. . . since they came into DCS custody in May 2009. Shortly

after the children were removed into DCS custody [Mother] fled

to . . . Oregon and has remained there since that time.

(Footnote added.)

In specifically addressing the question of the Children’s best interest, the trial court

further stated:

DCS must also prove that it is in the best interest of the children

for [Mother’s] rights to be terminated. The non-exhaustive list

of factors that the court may consider are codified in T.C.A. §

36-1-113(i). The Court finds that mother has failed to

demonstrate any interest or skill in parenting [the] children. The

children have been cared for by the current foster parents since

their removal in 2009 and a change of caretakers and physical

environment would likely inflict the same trauma asthe removal

of [ ] children from a biological family. The foster parents want

to adopt the children.

Finally, mother has failed to show any concern for these

children at any time during the children’s stay in state’s custody,

including appearing for the trial. . . . The court specifically finds

by clear and convincing evidence that it is in the best interest of

[the Children] for their mother’s parental rightsto be terminated.

The evidence does not preponderate against the trial court’s findings. Most

significantly, the evidence does not preponderate against the trial court’s determination that

-7-
there is clear and convincing evidence that the Children’s interest is best served by

permanently severing Mother’s ties to them. In summary, the proof supports the trial court’s

overall assessment that Mother failed to show any real interest in or concern for the Children

throughout this entire case. In the four years since they were placed in the custody of DCS

and foster care, Mother did not once visit or provide child support. She made no meaningful

progress toward completing the steps necessary to regain custody. In all that time, Mother

failed to obtain recommended treatment for her drug problem. This failure to act indicates

that she has made no lasting change to her circumstances or conditions. Even after the

petition was pending, Mother’s drug use continued, indicating that no change in this regard

was imminent. Further, Mother did not cooperate with Oregon authorities so that a home

study could be made as part of DCS’s effort to assess and assist Mother’s ability to properly

parent the Children and provide them with a safe, suitable place to live. Throughout these

proceedings, Mother was in another state while the Children lingered in the uncertainty of

foster care.

C.

Lastly, we address the sufficiency of the trial court’s findings in support of its best

interest determination. It is clear to us that, as often occurs in parental termination cases, the

trial court’s findings regarding the existence of grounds for termination overlap with its best

interest determination. Stated differently, much of the evidence and findings establishing

groundsfor termination also apply to the court’s consideration of the Children’s best interest.

Thus, for example, in support of its finding of persistence of conditions, the trial court found

that Mother was abusing drugs at the time of the Children’s removal, had not obtained

treatment for her drug problem since the Children’s removal, and continued to abuse drugs,

as evidenced by a probation violation for a failed drug screen as recently as 2012. These

same findings, in our view, are relevant to a consideration of certain statutory best interest

factors, to wit: (1) “whether the parent . . . has made such an adjustment of circumstance,

conduct, or conditions as to make it safe” for the child to be in the parent’s home; (2)

“whether the parent . . . has failed to effect a lasting adjustment after reasonable efforts by

available social services agencies for such duration of time that lasting adjustment does not

appear reasonably possible”; and (3) “. . . whether there is such use of alcohol or controlled

substances as may render the parent . . . consistently unable to care for the child in a safe and

stable manner.” See Tenn. Code Ann. § 36-1-113(i)(1), (2) and (7). Similarly, we conclude

that the court’s finding that Mother abandoned the Children by her failure to visit and support

them for over four years is relevant to those best interest factors that consider (1) “whether

the parent . . . has maintained regular visitation or other contact with the child”; (2) “whether

a meaningful relationship has otherwise been established between the parent . . . and the

child”; and (3) “whether the parent . . . has paid child support . . . .” See Tenn. Code Ann.

§ 36-1-113 (3), (4), and (9).

-8-
In summary, the trial court explicitly referenced the statutory best interest factors in

its termination order. Its factual findings indicate that it considered the evidence in light of

these relevant factors, among other considerations, in concluding that termination of

Mother’s rights best serves the Children’s interest. Perhaps most significantly, the trial court

observed that Mother fled the state without knowing what would become of the Children and

never returned. Viewing the best interest issue from the Children’s perspective, as we must,

we conclude that this fact alone weighs in favor of terminating Mother’s rights and allowing

the Children an opportunity to achieve permanency in their lives. We reject Mother’s

arguments to the contrary.

V.

The judgment of the trial court terminating Mother’s parental rights is affirmed. Costs

on appeal are taxed to the appellant, J.B. This case is remanded to the trial court, pursuant

to applicable law, for enforcement of the trial court’s judgment and the collection of costs

assessed below.

__________________________________________

CHARLES D. SUSANO, JR., PRESIDING JUDGE

-9-