08/30/2021 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs July 1, 2021
IN RE PRINCEKENYAN F.[1]
Appeal from the Chancery Court for Lawrence County No. 20-19160 Stella L. Hargrove, Judge ___________________________________
No. M2020-01306-COA-R3-PT ___________________________________
This appeal concerns the termination of a mother’s parental rights. The trial court found that seven grounds had been established: abandonment for failure to support; abandonment for failure to visit; abandonment for failure to provide a suitable home; substantial noncompliance with the permanency plan; persistence of conditions; mental incompetence; and failure to manifest an ability and willingness to assume custody. It also found that termination was in the child’s best interest for many reasons, including the mother’s failure to provide a safe home, maintain regular visitation, pay child support, and resolve her legal, mental health, and substance abuse issues. The mother contends the trial court incorrectly calculated the period relevant to the ground of abandonment, erred by admitting her mental health records into evidence in violation of Tenn. Code Ann. § 24-7-122, and that the evidence failed to meet the clear and convincing evidence standard. Following a thorough review of the record, we have determined that four of the seven grounds for termination as found by the trial court were established by clear and convincing evidence and that termination of the mother’s parental rights was clearly and convincingly in the child’s best interest. Therefore, we affirm the termination of the mother’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which JOHN W. MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.
Teresa Powers Martin, Lawrenceburg, Tennessee, for the appellant, Kiona F.
[*2]Unable to identify a suitable caretaker for the Child, Ms. Goolsby placed him into state custody. Mother was then re-hospitalized for mental health treatment at Western Mental Health Institute (“WMHI”).
I. PERMANENCY PLANS
After taking the Child into custody, DCS filed a dependency and neglect petition in the Lawrence County Juvenile Court and placed the Child into foster care with his great- aunt, Erica F.
Mother was discharged from WMHI in November 2018, at which time DCS developed the Child’s first permanency plan with Mother’s participation. The permanency plan included several responsibilities for Mother, including completing mental health, parenting, and alcohol and drug assessments and following all recommendations to completion; submitting to and passing random drug screens; obtaining, maintaining, and providing proof of stable housing and income; paying child support; completing “homemaker services” and parenting education; and resolving legal issues and not incurring new charges.
Unfortunately, Mother’s path to reunification with the Child was soon beset with problems. In December 2018, Mother was incarcerated in Lawrence County for violating the conditions of her parole.[3] Then, after Mother was released in January 2019, she tested positive for benzodiazepines, methamphetamine, and tetrahydrocannabinol (“THC”). While Mother completed the required alcohol and drug (“A&D”) assessment, she did not comply with the resulting recommendation for outpatient therapy.
Still, Mother’s circumstances appeared to improve, albeit modestly, in February 2019 when she obtained a job at a pizza restaurant and passed her second drug screen. Later that month, the juvenile court set Mother’s child support at $180 per month. The juvenile court also entered an order finding the Child dependent and neglected based on Mother’s failure to provide care during her mental health hospitalizations in October 2018 and during her subsequent period of incarceration in December 2018. The court specifically noted that Mother needed to address her mental health issues before the Child could be returned to her custody.
Despite the court’s admonition on Mother’s mental health, Mother never completed the mental health assessment required by the permanency plan. In fact, Mother denied any mental health problems and admitted that she was not taking the medication prescribed during her stay at WMHI.
[*3]What little progress Mother seemed to achieve in February 2019 was quickly erased. The following month, Mother refused to complete a random drug screen and admitted to using THC. When DCS visited Mother’s residence, several unidentified people were present, and the home smelled like marijuana. And during supervised visits with the Child, Mother spent most of the time criticizing DCS caseworkers. At one point, Mother even threatened to “blow up” the DCS building.
Then, in May 2019, Mother was found guilty in Giles County of several driving offenses and received a six-month suspended sentence. Her criminal behavior continued in July 2019, when Mother was arrested and spent several days incarcerated in Maury County for possession of marijuana and methamphetamine. Around the same time, Mother told DCS that she had moved out of state and would not be returning for a scheduled visit with the Child.
Mother eventually returned to the state but did not contact DCS. In December 2019, a Marshall County court convicted Mother of violating her probation by failing to report. That same month, Mother was charged in Maury County with several more driving offenses and charges of criminal impersonation, falsifying drug test results, and possession of marijuana. Mother later spent ten days in jail for failure to appear.
II. TERMINATION PROCEEDINGS
DCS filed its Petition to Terminate Parental Rights in early January 2020. At the time, Mother was incarcerated and did not respond. Thus, in February 2020, DCS moved for a default judgment. Mother filed a pro se response, the trial court appointed her an attorney, and the parties agreed to continue DCS’s motion.
In a separate pro se letter to the court, Mother asserted that she was still “in grave danger” and “in a hostage situation” and “in fear for [her] life.” Mother explained that she “had to relocate out of state with hopes [her] stalker/killer/sniper/or possibly clown could not find [her].” Mother repeated her cryptic allegations about clowns during a child and family team video conference in June 2020, when she accused DCS of ignoring that “clowns fell from the sky” in 2016. During the meeting, Mother stated that she had left the state again, but she refused to give any contact information to her attorney or DCS other than a post office box in Giles County.
When the Petition to Terminate came on for a final hearing on July 13, 2020, Mother’s counsel appeared, but Mother did not appear despite being sent multiple notices of the final hearing.[4] Upon DCS’s Motion for Default, the court found Mother failed to substantively respond to the pleadings without justification and failed to appear at trial; as a consequence, the court granted a default. Nevertheless, the trial on the Petition to Terminate Mother’s parental rights proceeded.
[*4]The trial court heard testimony from DCS caseworker Melinda Goolsby, DCS caseworker Dominique McCoy, probation officer Tiffany Hayden, and the Child’s foster mother, Erica F. The court also admitted into evidence several documents, including the juvenile court file; Mother’s criminal records; and Mother’s child support payment history from the Tennessee Department of Human Services. When DCS sought to introduce Mother’s mental health records from Rolling Hills Hospital, Mother’s attorney objected on the ground that no custodian affidavit was included, and the court marked the records for identification purposes only. At the conclusion of the trial, the court announced that it would be granting the petition to terminate Mother’s parental rights.
In its Order of August 14, 2020, the trial court found that DCS proved eight statutory grounds for termination: (1) abandonment for failure to visit; (2) abandonment for failure to support; (3) abandonment for failure to provide a suitable home; (4) substantial noncompliance with the permanency plan; (5) persistence of conditions; (6) mental incompetence; (7) and failure to assume legal and physical custody. The court also found that termination of Mother’s rights was in the Child’s best interest for many reasons, including Mother’s failure to provide a safe home; Mother’s failure to maintain regular visitation; Mother’s failure to pay child support; and Mother’s failure to resolve her legal, mental health, and substance abuse issues.
This appeal followed.
ISSUES
Mother raises four issues on appeal:
I. Whether the trial court erred in admitting medical records when no notice was provided consistent with notifying the adverse party sixty (60) days prior to trial.
II. Whether the trial court erred in computing the critical period for purposes of establishing abandonment.
III. Whether the trial court erred in finding statutory grounds to terminate the parental rights of Mother by clear and convincing evidence.
IV. Whether the trial court erred in finding the termination of Mother’s parental rights was in the Child’s best interest.
[*5]STANDARD OF REVIEW
“Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). “[T]his right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)).
“To terminate parental rights, a court must determine that clear and convincing evidence proves 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)). “Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted). “The clear-and-convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not.” In re Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016).
In an appeal, “this court is required ‘to review thoroughly the trial court’s findings as to each ground for termination and as to whether termination is in the child’s best interests.’” In re Connor B., 603 S.W.3d 773, 779 (Tenn. Ct. App. 2020) (quoting In re Carrington H., 483 S.W.3d at 525). In doing so, we must 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). Stated another way, we must make our own “determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights.” In re Carrington H., 483 S.W.3d at 524.
The trial court’s findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. See Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d at 523–24; In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). A trial court’s determinations regarding witness credibility are entitled to great weight on appeal and will not be disturbed absent clear and convincing evidence to the contrary. In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007).
[*6]ANALYSIS
I. MENTAL HEALTH RECORDS
Mother contends her mental health records from Rolling Hills and WMHI should have been excluded because DCS failed to provide the records to her at least 60 days before trial along with notice that the records may be offered in evidence as required by Tenn. Code Ann. § 24-7-122.5 The guardian ad litem and DCS contend that Mother waived this issue by not raising it before the trial court. We agree.
We addressed a substantially similar situation in In re Gracie H.Y., No. M2019- 00639-COA-R3-PT, 2020 WL 1249453 (Tenn. Ct. App. Mar. 16, 2020), appeal denied (June 16, 2020). In Gracie, the mother objected to the admittance of medical records at trial for lack of foundation and relevance. Id. at[*14] . But on appeal, the mother objected to the documents’ admittance because they were not provided before trial per Tenn. Code Ann. § 24-7-122. Id. Because the mother had not raised that ground in her objection during the trial, we found she waived the issue on appeal. Id.
Here, Mother objected to admitting her Rolling Hills records in the trial court on the basis that no custodian affidavit was attached.[6] She did not, however, object to the admission of her WMHI records on any grounds. Nevertheless, on appeal, Mother argues that all of her medical records should have been excluded under § 24-7-122. Because Mother did not raise this issue before the trial court, we find she has waived it on appeal. See In re Gracie, 2020 WL 1249453, at[*14] .
II. GROUNDS FOR TERMINATION
The trial court found DCS proved seven grounds for terminating Mother’s parental rights: (1) abandonment by failure to visit; (2) abandonment for failure to support; (3) abandonment for failure to provide a suitable home; (4) substantial noncompliance with the permanency plan; (5) persistence of conditions; (6) mental incompetence; (7) and failure to assume legal and physical custody. Accordingly, we will review the trial court’s findings on each ground. See In re Carrington H., 483 S.W.3d at 525–26.
[*7]A. Abandonment
A ground for termination exists if “[a]bandonment by the parent or guardian, as defined in § 36-1-102, has occurred.” Tenn. Code Ann. § 36-1-113(g)(1).
The trial court found that DCS established three grounds of abandonment: two under § 36-1-102(1)(A)(i), which defines abandonment as the failure to support or the failure to visit during the four months “immediately preceding the filing of a proceeding, pleading, petition or amended petition for termination of parental rights or adoption”; the other under § 36-1-102(1)(A)(ii), which defines abandonment as the failure to make efforts to provide a suitable home for the child for four months after the child’s removal.
Mother contends the trial court incorrectly computed the period for establishing abandonment for failure to visit and abandonment for failure to support under Tenn. Code Ann. § 36-1-102(1)(A)(i). DCS concedes this issue on appeal but asserts that abandonment was proven under the definition in § 36-1-102(1)(A)(ii). Thus, our analysis will be limited to the third ground of abandonment.
Under Tenn. Code Ann. § 36-1-102(1)(A)(ii), abandonment may be proven by showing that the parent failed to make reasonable efforts to provide a suitable home for the child for four months after the child’s removal:
For purposes of terminating the parental or guardian rights of a parent . . . “abandonment” means that:
. . .
(ii)(a) The child has been removed from the home or the physical or legal custody of a parent . . . by a court order at any stage of [dependency and neglect] proceedings . . . , and the child was placed in the custody of the department or a licensed child-placing agency;
(b) The juvenile court found . . . that the department or a licensed child- placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child’s situation prevented reasonable efforts from being made prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal, the department or agency made reasonable efforts to assist the parent . . . to establish a suitable home for the child, but that the parent . . . ha[s] not made reciprocal reasonable efforts to provide a suitable home and ha[s] 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. . . .
[*8]“A suitable home ‘requires more than a proper physical living location. It requires that the home be free [from] drugs and domestic violence.’” In re Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App. 2016) (citations omitted). Similarly, matters relating to counseling and assessments are “directly related to the establishment and maintenance of a suitable home.” In re M.F.O., No. M2008-01322-COA-R3-PT, 2009 WL 1456319, at *5 (Tenn. Ct. App. May 21, 2009). Further, “[t]he efforts of the department or agency to assist a parent or guardian in establishing a suitable home for the child shall be found to be reasonable if such efforts equal or exceed the efforts of the parent or guardian toward the same goal.” Tenn. Code Ann. § 36-1-102(1)(A)(ii)(c).
The Child was physically removed from Mother on October 16, 2018. The next day, the Child was removed from Mother’s legal custody by court order at the beginning of the dependency and neglect proceedings.[7] Thus, the relevant period for this termination ground was October 17, 2018, to February 17, 2019.
The trial court found that DCS made reasonable efforts to assist Mother during the relevant period, but Mother did not make reciprocal efforts to establish a suitable home, and the evidence does not preponderate against this finding. During the trial, Ms. McCoy testified that DCS provided access to several services related to establishing a suitable home, including a mental health assessment, an A&D assessment, and homemaker services. Although Mother completed the A&D evaluation, she did not follow the resulting recommendation to attend outpatient therapy. Mother failed a drug test in January 2019, admitted to using THC in March 2019, and was arrested several times for possession of marijuana and methamphetamine. And although Mother attended one homemaker class, she did not complete the program.
The trial court also found that Mother showed a lack of concern for the Child such that it appeared unlikely Mother could provide a suitable home in the near future, and the evidence does not preponderate against this finding. Ms. McCoy testified that Mother had altogether stopped cooperating with DCS by mid-2019 and moved out of state. When Mother returned, she was incarcerated on several drug-related charges. Moreover, Mother’s probation officer, Ms. Hayden, testified that Mother gave her the address for a homeless shelter in Nashville around the same time. The Child’s foster mother, Erica F., testified that Mother visited the Child’s home on a few occasions in 2020 but gave little attention to the Child.
Based on the above, we affirm the trial court’s conclusion that the evidence clearly and convincingly established the ground of abandonment by failure to provide a suitable home under Tenn. Code Ann. § 36-1-102(1)(A)(ii). However, because DCS concedes that abandonment by failure to visit and support was not proven under the definition in § 36-1- 102(1)(A)(i), we reverse the trial court’s ruling on those grounds.
[*9]B. Substantial Noncompliance with Permanency Plan
Termination of parental rights may also be based on “substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4.” Tenn. Code Ann. § 36-1-113(g)(2). Noncompliance with the permanency plan may be grounds for termination only “if the court finds the parent was informed of [the plan’s] contents, and that the requirements . . . [were] reasonable and [were] related to remedying the conditions that necessitate foster care placement.” Tenn. Code Ann. § 37-2-403(a)(2)(C); see also In re Valentine, 79 S.W.3d at 547. “Conditions necessitating foster care placement may include conditions related both to the child’s removal and to family reunification.” In re Valentine, 79 S.W.3d at 547. Whether a parent’s noncompliance is substantial depends on “the degree of noncompliance and the importance of the particular requirement that has not been met.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (citations omitted).
DCS developed a permanency plan with the participation of Mother in November 2018. DCS revised the plan three times after that. Each version of the plan identified Mother’s mental health hospitalization as the reason for the Child’s removal. Although Mother was discharged from the hospital in November 2018, the juvenile court found the Child dependent and neglected in February 2019 because Mother had been incarcerated during December 2018 and January 2019 and still had “mental health needs that need[ed] to be addressed prior to the [C]hild returning to her custody.” The Child’s DCS caseworker, Ms. McCoy, testified that Mother’s mental health treatment and resolution of outstanding legal issues were the most critical to ensure safe reunification with the Child. Thus, the permanency plans required Mother to, inter alia (1) complete a psychological assessment and follow all recommendations; (2) provide proof of housing; (3) provide proof of regular income; and (4) “resolve all legal issues and not [incur] any new charges.”
Ms. McCoy testified that Mother never completed the psychological assessment, never provided proof of housing or a stable income, and failed to resolve her outstanding legal issues. Mother also continued to incur new criminal charges. Mother’s probation officer, Tiffany Hayden, testified that Mother fell behind on her probation fees and an arrest warrant was outstanding at the time of trial because Mother failed to report.
The evidence shows that Mother knew about her responsibilities, the responsibilities were reasonable and related to the conditions that necessitated foster care, and Mother disregarded several requirements of utmost importance to reunification with the Child. Accordingly, we affirm the trial court’s ruling that the evidence clearly and convincingly established the ground of substantial noncompliance with the statement of responsibilities in the permanency plan.
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C. Persistence of Conditions
Under Tenn. Code Ann. § 36-1-113(g)(3), parental rights may be terminated when the child has been removed from the parent’s custody during dependency and neglect proceedings for six months and three factors exist:
(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 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 . . . in the near future; and
(iii) The continuation of the parent . . . and child relationship greatly diminishes the child’s chances of early integration into a safe, stable, and permanent home . . . .8
The purpose of this ground 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 Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010) (quoting In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at[*20] (Tenn. Ct. App. Oct. 13, 2008)), overruled on other grounds by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). As the statute prescribes, “[a] parent’s continued inability to provide fundamental care to a child . . . constitutes a condition which prevents the safe return of the child to the parent’s care.” In re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. Ct. App. 2012) (quoting In re A.R., 2008 WL 4613576, at[*20] ). Further, “[w]here . . . efforts to provide help to improve the parenting abilities, offered over a long period of time, have proved ineffective, the conclusion 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 initial reason for the Child’s removal was Mother’s hospitalization for mental health treatment and the lack of an alternative caregiver. The Child was removed from Mother’s custody in October 2018 when DCS filed its dependency and neglect petition in the juvenile court and remained in foster care during the trial, over 18 months later. Thereafter, the juvenile court found the Child dependent and neglected because of Mother’s incarceration and continuing mental health needs.