IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs March 4, 2020

IN RE CAYDAN T.

Appeal from the Juvenile Court for Tipton County No. 18-JV-243 William A. Peeler, Judge ___________________________________

No. W2019-01436-COA-R3-PT – Filed April 7, 2020 ___________________________________

Mother appeals the termination of her parental rights, which the trial court granted on the grounds of persistent conditions, severe child abuse, and failure to manifest a willingness and ability to parent. Mother also appeals the trial court’s finding that the termination of her parental rights was in the child’s best interests. Finding no error, we affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which JOHN W. MCCLARTY, and W. NEAL MCBRAYER, JJ., joined.

Lauren A. Raynor, Covington, Tennessee, for the appellant, Jessica T.

Herbert H. Slatery, III, Attorney General and Reporter; Matt D. Cloutier, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children’s Services.

OPINION

BACKGROUND

Respondent/Appellant Jessica T. (“Mother”) is the mother of Caydan T. (“the Child”), who was born in 2013.1 On March 22, 2018, Petitioner/Appellee Tennessee Department of Children’s Services (“DCS”) took custody of the Child the day after Mother was arrested on charges of possession of a controlled substance and possession of drug paraphernalia. A hair follicle drug screen was performed on the Child, which tested positive for methamphetamine. At the time, Mother told a DCS worker that she had been using and selling methamphetamine for at least two years with her boyfriend. Mother she admitted that she had been exposed to amphetamines her entire life and that “it’s been about three, four days since [she] used.” She stated that the drugs she used kept her focused, calm, and allowed her to work around the home. Further, Mother stated that the Child also needs medication “to calm him down, to keep from going insane, to keep him rounded.” Although Mother entered drug abuse treatment, she left the program in its final week because “something kept telling [her] to go home.” Mother admitted lying to the treatment center about having a dying relative in order to leave the center. Further, Mother stated that she was undergoing a “spiritual battle” and that she stopped taking prescribed medication for her mental health “because they would have stopped [her] from finishing [her] spiritual battle.” Further, Mother claimed her drug use allowed her to defeat the “demons” she associated with her spiritual battle. Mother claimed that she had passed a state-issued mental evaluation “in thirty minutes” and had worked to create a home where she could be a better parent. At the close of proof, the trial court took the matter under advisement.

The trial court issued an order terminating Mother’s parental rights on July 17, 2019. The trial court found clear and convincing evidence that warranted the termination on the grounds of persistent conditions, severe child abuse, and a failure to manifest a willingness and ability to assume legal and physical custody of the Child. Mother timely filed this appeal. ISSUES PRESENTED

On appeal, Mother challenges the trial court’s findings as to both the grounds for termination found by the trial court and the trial court’s finding that termination was in the child’s best interest.

STANDARD OF REVIEW

The Tennessee Supreme Court has previously explained that:

A parent’s right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578– 79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. . . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522−23 (Tenn. 2016) (footnote omitted). In Tennessee, termination of parental rights is governed by statute which identifies “‘situations in which that state’s interest in the welfare of a child justifies interference with a parent’s constitutional rights by setting forth grounds on which termination proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1) existence of one of the statutory grounds and (2) that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Considering the fundamental nature of a parent’s rights, and the serious consequences that stem from termination of those rights, a higher standard of proof is required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party must prove statutory grounds and the child’s best interests by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “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 evidence[,]” and “produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).

In termination cases, appellate courts review a trial court’s factual findings de novo and accord these findings a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 523−24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007)). Our supreme court further explains:

The trial court’s ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 483 S.W.3d at 524.

Lastly, in the event that the “resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore “gives great weight to the credibility accorded to a particular witness by the trial court.” In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn. Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).

DISCUSSION

A. Grounds for Termination While Mother has broadly appealed the trial court’s findings for each ground for termination, the only ground specifically addressed in her argument is persistence of conditions. Nevertheless, as directed by our supreme court, we will examine each ground for termination whether the ground was the specifically addressed by the parent or not. In re Carrington H., 483 S.W.3d at 525−26. The trial court found three grounds for termination of Mother’s parental rights: persistence of conditions, severe child abuse, and a failure to manifest an ability and willingness to assume legal and physical custody of the Child.

1. Persistence of Conditions The trial court first found a ground to terminate Mother’s parental rights for persistence of conditions under Tennessee Code Annotated section 36-1-113(g)(3). Under state statute, a ground to terminate parental rights exists when:

(A) The child has been removed from the home or the physical or legal custody of a parent or guardian for a period of six (6) months by a court order entered at any stage of proceedings in which a petition has been filed in the juvenile court alleging that a child is a dependent and neglected child, and: (i) The conditions that led to the child’s removal still persist, preventing the child’s safe return to the care of the parent or guardian, or other conditions exist that, in all reasonable probability, would cause the child to be subjected to further abuse or neglect, preventing the child’s safe return to the care of the parent or guardian; (ii) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent or guardian in the near future; and (iii) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable, and permanent home[.]

(B) The six (6) months must accrue on or before the first date the termination of parental rights petition is set to be heard;

Tenn. Code Ann. § 36-1-113(g)(3). As this Court has previously stated:

“A parent’s continued inability to provide fundamental care to a child, even if not willful, . . . constitutes a condition which prevents the safe return of the child to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at[*20] (Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the conditions which led to the removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6 (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990)). “Where . . . efforts to provide help to improve the parenting ability, offered over a long period of time, have proved ineffective, the conclusion is that there is little likelihood of such improvement as would allow the safe return of the child to the parent in the near future is justified.” Id. The purpose behind the “persistence of conditions” ground for terminating parental rights is “to prevent the child’s lingering in the uncertain status of foster child if a parent cannot within a reasonable time demonstrate an ability to provide a safe and caring environment for the child.” In re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012) (quoting In re A.R., No. W2008-00558- COA-R3-PT, 2008 WL 4613576, at[*20] (Tenn. Ct. App. Oct. 13, 2008) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. ^[3], 2008))).

In re Jaylah W., 486 S.W.3d 537, 555-56 (Tenn. Ct. App. 2015).

Here, there is no dispute that the Child was removed from Mother’s custody by a protective custody order and later adjudicated dependent and neglect more than six months prior to the start of the termination trial. See Tenn. Code Ann. § 36-1-113(g)(3)(B). On appeal, Mother generally argues that state officials failed to properly investigate whether the conditions that led to the Child’s removal still persist. In particular, Mother states that DCS failed to investigate whether her new residence would serve as stable housing and failed to ensure that Mother received drug and mental health treatment before the dependency and neglect hearing. DCS contends that Mother is still unable to fundamentally care for the Child, so the conditions that led to his removal would still remain.

Respectfully, Mother’s argument lacks merit. The Tennessee Supreme Court has held that while DCS’ efforts to reunify a family should be considered in determining a child’s best interest, “proof of reasonable efforts is not a precondition to termination of the parental rights of the respondent parent.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015) (noting an exception for abandonment for failure to establish a suitable home). With that in mind, DCS is under no obligation to ensure Mother received treatment or obtained proper housing before it can establish a finding of persistent conditions.

From our review, DCS has met its burden to show all the required elements of persistent conditions in this case. Mother’s own testimony showed that at least some of the conditions that led to the Child’s removal have not been remedied. Indeed, Mother testified that she continued to use methamphetamine days before the termination hearing. While Mother entered an inpatient drug treatment program, she failed to complete the program and admittedly lied to officials to leave the facility. Mother also obtained a mental health evaluation while incarcerated yet refused to take her prescribed medication out of fear that the medication would lead her to lose her “spiritual battle.”

As shown supra, the Child was removed from Mother’s custody in large part because of Mother’s consistent drug use and the presence of drugs in her home. Mother made clear through her own testimony that she continued to use methamphetamine, did not complete her required treatments, and saw her drug use as necessary for her to function. At the very minimum, Mother’s drug use led to the removal of the Child and would likely continue even if she regained custody of him. This would prevent the Child’s safe return to his Mother’s care and seriously diminish the likelihood that he would be integrated into a safe, stable home. Further, the Child’s foster family, one that wishes to adopt him, would provide a safe, stable and permanent home where he has already shown personal growth. For these reasons, we conclude that the trial court did not err in finding a ground to terminate Mother’s parental rights through persistent conditions.

2. Severe Child Abuse The trial court also found that severe child abuse existed as defined by Tennessee Code Annotated section 36-1-113(g)(4). A ground for termination exists where “[t]he parent or guardian has been found to have committed severe child abuse, as defined in § 37-1-102, under any prior order of a court or is found by the court hearing the petition to terminate parental rights[.]” Tenn. Code Ann. § 36-1-113(g)(4). Severe child abuse has various definitions, including “[t]he knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is likely to cause serious bodily injury or death.” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i). Clear and convincing evidence of severe child abuse is present when a child is exposed to methamphetamine. In re A.L.H., No. M2016-01574-COA-R3-JV, 2017 WL 3822901, at *5 (Tenn. Ct. App. Aug. 31, 2017) (“This Court has repeatedly held that exposure of a child to drugs constitutes severe child abuse.”); see also In re Mason E., No. E2015-01256-COA-R3-JV, 2016 WL 2931190, at *6–7 (Tenn. Ct. App. May 16, 2016) (holding that a child’s presence in a building where methamphetamine was made can constitute clear and convincing evidence of severe child abuse through knowing exposure or knowingly failing to protect a child likely to cause severe bodily injury or death). Further, a severe abuse finding in a dependency and neglect action becomes final when it was not timely appealed following the dependency and neglect hearing. In re Karisah N., No. M2018-00555-COA-R3-PT, 2018 WL 6179470, at[*10] (Tenn. Ct. App. Nov. 27, 2018); In re Dakota C.R., 404 S.W.3d 484, 497–98 (Tenn. Ct. App. 2012). In the present case, the trial court found that the Child was the victim of severe child abuse as defined by Tennessee Code Annotated section 37-1-102(b)(22)(A) in a dependency and neglect order entered on July 25, 2018. This finding was based on his positive hair follicle test for methamphetamine and the testimony of a DCS case manager. Mother failed to appeal the dependency and neglect order. Therefore, any effort to challenge the severe child abuse finding in the dependency and neglect order is res judicata in this appeal. Consequently, the trial court did not err in finding a ground for terminating Mother’s parental rights through severe child abuse under Tennessee Code Annotated section 36-1-113(g)(4). 3. Willingness and Ability Lastly, the trial court found a ground to terminate Mother’s parental rights based on her failure to manifest a willingness and ability to parent the child. A ground to terminate parental rights exists when a parent

failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child[.]

Tenn. Code Ann. § 36-1-113(g)(14). In essence, the statute requires two distinct elements to be proven with clear and convincing evidence.

First, DCS must prove that [the parent] failed to manifest “an ability and willingness to personally assume legal and physical custody or financial responsibility of the child[ren].” DCS must then prove that placing the children in [the parent’s] “legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child[ren].”

In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018) (quoting Tenn. Code Ann. § 36-1-113(g)(14)).

A parent’s willingness and ability to personally assume custody of his or her child requires more than mere words. In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL 1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019). When examining a parent’s ability, we focus on “the parent’s lifestyle and circumstances.” Id. When evaluating a parent’s willingness to assume custody, we look at the parent’s efforts “to overcome the obstacles that prevent [him or her] from assuming custody or financial responsibility for the child.” Id. The actions of a parent can establish a lack of willingness to assume legal and physical custody of a child. See In re J’Khari F., No. M2018-00708-COA-R3-PT, 2019 WL 411538, at[*15] (Tenn. Ct. App. Jan. 31, 2019) (citations omitted) (“Regarding willingness, a parent’s actions can demonstrate a lack of willingness to assume custody of or financial responsibility for the Child.”).

Sufficient evidence exists that Mother failed to manifest a willingness to assume custody and financial responsibility for the Child. Cf. In re Jaxx M., No. E2018-01041- COA-R3-PT, 2019 WL 1753054, at *8 (Tenn. Ct. App. Apr. 17, 2019) (citing In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at[*12] (Tenn. Ct. App. June 20, 2018); In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018)) (recognizing a dispute over what proof is required to meet this ground for termination, but avoiding the dispute by noting that the proof was sufficient under even the more stringent ground). While Mother testified that she was more than willing to parent the Child, her actions simply do not match her assertions. In the months following Mother’s loss of custody, she continued to use methamphetamine, failed to take prescribed medication for her mental health, and lied to leave substance abuse treatment before its completion. Mother’s actions do not reflect an effort to overcome the obstacles she faced to regain custody. See In re Cynthia P., 2019 WL 1313237, at *8. On the contrary, her actions show behavior that is largely unchanged since she lost custody of her Child. While we do not deny that Mother has expressed a desire to care for the Child, she has not shown a willingness or ability to take legal and physical custody of her son. The trial court therefore did not err in finding that Mother failed to manifest the necessary willingness and ability to parent her Child.

The second prong of the willingness and ability analysis requires this Court to question whether placing the Child back in Mother’s custody would create a risk of psychological or physical harm to the child. In re Maya R., 2018 WL 1629930, at *7. As this Court has stated:

The courts have not undertaken to define the circumstances that pose a risk of substantial harm to a child. These circumstances are not amenable to precise definition because of the variability of human conduct. However, the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates that the harm must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not.

In re Virgil W., No. E2018-00091-COA-R3-PT, 2018 WL 4931470, at *8 (Tenn. Ct. App. Oct. 11, 2018) (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).

Mother’s consistent drug use and incarceration tied to her drug use reflects that she could not assume custody of the Child without placing him in danger of substantial harm. Importantly, the Child was exposed to methamphetamine while in Mother’s care, resulting in severe abuse to the Child. Mother’s continued use of methamphetamine even in the days before trial leads this Court to believe that the Child would likely be exposed again if returned to Mother’s custody. Indeed, we have little confidence that Mother will be able to stop using illegal drugs; the tenor of Mother’s testimony indicates that she has no desire to stop using illegal drugs, as she believes that they, but apparently not prescribed medications, are necessary for her to function properly. Mother’s beliefs also appear to extend to the Child, as she stated that giving amphetamines to her son would be appropriate “to calm him down, to keep him from going insane, [and] to keep him rounded.”3 To take the Child away from a pre-adoptive home and place him back in Mother’s care under these circumstances would create a serious and significant risk to his physical and psychological health, stability, and well-being. Because of this, the trial court did not err in finding that substantial harm could come to the Child if Mother regained physical and legal custody. Thus, the trial court correctly found a ground for terminating Mother’s parental rights because of a failure to show a willingness and ability to parent her child under Tennessee Code Annotated section 36-1-113(g)(14).

B. Best Interests

As at least one ground for termination is supported by clear and convincing evidence, we now consider whether clear and convincing evidence supports the trial court’s determination that termination of Mother’s parental rights is in the Child’s best interests. “Upon establishment of a ground for termination, the interests of the child and parent diverge, and the court’s focus shifts to consider the child’s best interest.” In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). Even where a parent is unfit, termination may not necessarily be in the best interests of the child. Id.

Tennessee’s termination statute lists the following factors to be used in the best interest analysis:

(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