                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                Assigned on Briefs May 06, 2015

                                       IN RE BRAYDEN S.1

                   Appeal from the Juvenile Court for Cheatham County
                        No. 2012707       Phillip A. Maxey, Judge



                No. M2014-02241-COA-R3-PT – Filed September 11, 2015



This case stems from a proceeding in which the parental rights of the parents of a two
year old child were terminated due to severe physical abuse of the child and upon the
court’s finding that termination would be in the child’s best interest. Mother appeals the
holding that termination of her rights was in the best interest and the court’s admission of
the testimony of one witness. Finding no error, we affirm the judgment of the trial court.

    Tenn. R. App. P. R3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P. J., M. S., and W. NEAL MCBRAYER, J. joined.

Jennifer T. Hall, Nashville, Tennessee, for the appellant, Brittney K.

Herbert H. Slatery, III, Attorney General and Reporter; and Jordan Scott, Assistant
Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee Department
of Children’s Services.

                                                OPINION

       Brayden S. was born out of wedlock to Brittany K. (“Mother”) and Wesley S.
(“Father”) in November 2012. On December 27, the parents took Brayden to the
Gateway Medical Center where he was found to have suffered various physical injuries.
Brayden was transferred to Vanderbilt Hospital where he was diagnosed with injuries

1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
consistent with abusive head trauma including: multiple subdural hematomas; skull
fracture; twenty-four rib fractures in multiple stages of healing; a corner fracture of the
tibia; retinal hemorrhages; symptoms of brain injury; seizing; and troubled breathing,
which required intubation.

       Following receipt of a referral, on December 28 the Department of Children’s
Services (“DCS”) filed a Petition to Adjudicate Dependency and Neglect and Severe
Abuse, Temporary Custody and Ex Parte Order. A Protective Custody Order was
entered by the juvenile court magistrate on that date placing Brayden in the temporary
legal custody of DCS and setting a preliminary hearing for January 2, 2013. On January
2, the juvenile court judge entered an order continuing the DCS custody. A third
protective custody order was entered on January 8 which was duplicative of the January 2
order.

        A permanency plan was developed on January 8, 2013 and ratified on February 12,
identifying reunification as the goal and including the following requirements for Mother:
participate in a minimum of four hours per month visitation; pay child support; provide a
safe, stable, and drug free environment; submit to random drug screens; obtain a legal
source of income; attend all Child and Family Team Meetings (“CFTMs”), Foster Care
Review Board (“FCRB”) meetings, court hearings, and Tennessee Early Intervention
System (“TEIS”) appointments; attend couples’ counseling; attend Brayden’s doctor
appointments; and demonstrate knowledge to properly care for Brayden. Mother
participated in the creation of this plan, had it explained to her, and was given a copy of
the Criteria & Procedure for Termination of Parental Rights, which she signed on January
8.

       Brayden was released from the hospital on January 9 and placed in DCS foster
care. In June Brayden was placed in the care of his paternal grandmother, Debora S. A
second permanency plan was developed on June 26, listing the same goals as the January
8 plan; the record does not show that the June 26 plan was ever ratified by the court.

        By order entered on September 24, the court adjudicated Brayden to be dependent
and neglected as a result of severe abuse by both parents; on the basis of that finding, an
order was entered on October 7, leaving Brayden in DCS custody and relieving DCS of
its responsibility to make reasonable efforts to reunify Brayden with his parents. The
Permanency Plans developed after the entry of the October 7 order identify adoption as
the goal and provide that Mother was to visit Brayden four hours per month and pay child
support.2
2
  The Permanency Plans listing the goal of adoption were developed on February 20, 2014, though the
record does not show that this plan was ratified by the court, and on June 12, 2014, which was ratified on
July 25, 2014.
                                                    2
       DCS filed a Petition to Terminate Parental Rights and for Decree of Full
Guardianship on March 31, 2014. The case was heard before the Juvenile Court of
Cheatham County on September 26. On October 7, the court issued its order terminating
the parental rights of both parents on the grounds of severe child abuse, holding:

      This Court’s already found in August of last year that there was severe
      abuse on this child. In that hearing, what was presented, and what was
      accepted by the Court, is that the child had 24 rib fractures –some were
      older rib fractures – subdural hematomas, tibia fracture. In that hearing, it
      was determined that [Mother’s] drug use could reasonably interfere with her
      ability to appreciate the significance of what happened or what was
      happening that gave rise to the incident that caused the severe abuse
      finding. So I know your client has had a drug problem for quite some time.
      Of course, her rights were not terminated at that time, but the Department
      didn’t have to go the extra mile to make reasonable efforts. Your client
      says that she has attempted to make efforts on her own, and I’ve read these.
      . . . Most of these reports from your visits are really good, but, of course,
      those reports can’t stand alone.

      I can appreciate the significance of a drug problem, of a drug addiction. . . .
      What we have here is an additional element. We have a child involved. . . . I
      can’t imagine any greater incentive to try to get a grip on a drug problem
      than to have your own child taken away from you forever, and that’s what
      we’ve been dealing with. That’s what we’ve been looking at. You signed
      this thing back in January of 2013 saying, I understand [what] the
      Department has to do and they have a timeline to do it. And I understand
      your attempts to try to rectify the problem. You’ve been through three
      rehabs. You’ve relapsed. You’ve relapsed. Since that time, you’ve been
      using cocaine, marijuana, methamphetamine, and your pain pills. You keep
      relapsing.

      I have to look at the best interest of this child. You keep relapsing through a
      mental, psychological, physiological addiction to these drugs. And, again, I
      can understand that. I can appreciate that, but I can’t put off the permanence
      for this child to allow you time to kick the habit. I mean, I don’t know. Are
      we talking about another 18 months, or are we talking about when the child
      turns 18 years old before you get it together? I have to look at permanence
      for this child.

      So I do find that grounds exist under severe abuse 36-1-113(g)(4). Looking
      at the best interest, you’ve not made the proper adjustments to the
                                            3
        circumstances which brought this child into custody in the first place. You
        cannot prove that the change in caretakers or physical environment is likely
        to have an emotional, psychological, or medical impact on this child.

        I don’t find that you’re able to care for this child, ma’am, and I don’t find
        it’s in the best interest for you to keep making the attempts to get yourself
        clean and this child is just in limbo. So I find it’s in the best interest that
        your parental rights be terminated.

      Mother does not appeal the ground upon which her parental rights were
terminated3; rather, she contends that the court erred in admitting the testimony of one
witness and in holding that termination was in Brayden’s best interest.4

I. STANDARD OF REVIEW

        A parent has a fundamental right to the care, custody, and control of his or her
child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921
S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if
there is a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing
Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statues identify Athose
situations in which the 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 W.B. IV, M2004-00999-COA-R3-PT, 2005 WL 1021618, at *7
(citing Tenn. Code Ann. ' 36-1-113(g)). A party seeking to terminate the parental rights
of a biological parent must prove at least one of the statutory grounds for termination.
Tenn. Code Ann. ' 36-1-113(c)(1); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Secondly, the party must prove that
termination of the parental rights of the biological parent is in the child’s best interest.
Tenn. Code Ann. ' 36-1-113(c)(2).

       Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky v. Kramer, 455 U.S. 745, 766-69 (1982); In
re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Thus, both the ground for
termination and the best interest inquiry must be established by clear and convincing

3
  We concur with the court’s determination that the ground of severe abuse was established by clear and
convincing evidence.
4
  Father stipulated to the grounds of severe child abuse and that termination was in the best interests of the
child; he is not a party to this appeal.

                                                      4
evidence. Tenn. Code Ann. ' 36-3-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). In light of the heightened standard of proof in these cases, a reviewing court
must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re
M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court’s findings of fact,
our review is de novo with a presumption of correctness unless the evidence
preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then
determine whether the facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements necessary
to terminate parental rights. Id.

II. TESTIMONY OF DEBORA S.

        Mother first contends that the court erred in allowing the testimony of Brayden’s
paternal grandmother, Debora S., in violation of the rule of sequestration at Tenn. R.
Evid. 615.5 During the preliminary stages of the trial, the witnesses were sequestered in
accordance with the rule; Debora S. stayed in the hallway outside the courtroom. Prior to
being called to testify, Debora S. spoke with her daughter, Christy S., who was not
sequestered; she had been observing the trial, became emotional during Father’s
testimony, and had stepped out of the courtroom to compose herself. As Debora S. was
comforting her, their conversation was observed by a court officer and reported to the
court. Both Christy S. and Debora S. were questioned by the court as to the nature of
their conversation6; the trial court permitted Debora S. to testify when she was later called
as a witness by DCS. Mother contends that the hallway conversation violated Rule 615
and tainted Debora S.’s later testimony.



5
    Tenn. R. Evid. 615 reads in pertinent part as follows:

          At the request of a party the court shall order witnesses, including rebuttal witnesses,
          excluded at trial or other adjudicatory hearing. In the court’s discretion, the requested
          sequestration may be effective before voir dire, but in any event shall be effective before
          opening statements. The court shall order all persons not to disclose by any means to
          excluded witnesses any live trial testimony or exhibits created in the courtroom by a
          witness. . . .

“The purpose of th[is] rule is to prevent one witness from hearing the testimony of another and adjusting
his testimony accordingly.” State v. Coulter, 67 S.W.3d 3, 51 (Tenn. Crim. App. 2001) (citing State v.
Harris, 839 S.W.2d 54, 68 (Tenn. 1992)).
6
  Christy S. testified that they discussed Father’s appearance and his testimony about who cared for
Brayden, which upset her because she was not mentioned; Debora S. testified that they only discussed how
Father appeared, not his testimony.

                                                       5
      As we consider this issue, we note that Mother’s brief does not clearly articulate
how the Rule may have been violated by the court’s allowance of Debora S.’s testimony.
Mother’s brief also does not provide the “appropriate references to the record” as required
by Tenn. R. App. P. 27(a)(7)(A) to establish how the testimony violated Rule 615.7

       We have reviewed the entire testimony of Debora S. and Christy S. related to this
incident, as well as the rulings of the court. Considered in sequence and in context, the
record shows that, after interrogating Debora S. and Christy S., the court determined that
Debora S. would not testify with respect to any grounds supporting termination, but only
with respect to her desire to adopt Brayden. The court ruled that “[I]f her testimony is
being offered only for where this child may potentially go, if I do find that the parental
rights should be terminated, I don’t think that the discussion, whatever that discussion
was, whether you believe the daughter, whether you believe the mother, I don’t think
that’s prejudicial.” The court did not make a specific finding that the hallway
conversation violated Rule 615 8 but ruled that Debora S. could not be questioned “in
regard to anything that was discussed outside of this courtroom regarding the care given
by [Christy S.] … I don’t want that to be tainted by anything that she may have been told
outside of the courtroom.”

        Because Rule 615 does not set forth specific sanctions to be imposed when it is
violated, “trial courts have significant discretion when deciding how best to deal with its
violation.” State v. Jordan, 325 S.W.3d 1, 41 (Tenn. 2010) (citing State v. Upchurch, 620
S.W.2d 540, 543 (Tenn. Crim. App. 1981)). The court’s discretion “should be exercised
in light of both the policies at issue as well as the particular facts and circumstances of the
case.” Jordan, 325 S.W.3d at 41. The court’s statement and ruling acknowledge the
conflict in the recollections of Debora S. and Christy S. regarding the conversation, as
well as the purpose for Debora S.’s testimony. Under these circumstances it was entirely
appropriate and within the trial court’s discretion for the court to limit her testimony in
the manner in which it did. Upon our review of the record, we find no abuse of
discretion in the court permitting Debora S. to testify.9




7
    Mother’s brief cites to twelve pages of the trial transcript, most of which contain argument of counsel.
8
  Upon our review of the transcript, we concur that the testimony was conflicting but that, in any event,
any violation was inadvertent.
9
  In addition, we note that the court based its decision to terminate Mother’s parental rights on its finding
of severe abuse and that Mother had not made proper adjustments to the circumstances which brought the
child into custody; the hallway conversation between Debora S. and Christy S. did not touch on any of
these topics.
                                                        6
III. BEST INTEREST

        Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is the best interest of the child for the
parent’s rights to be terminated, again using the clear and convincing evidence standard.
The legislature has set out a list of factors at Tenn. Code Ann. ' 36-1-113(i) for the courts
to follow in determining the child=s best interest.10 The list of factors in the statute “is
not exhaustive, and the statute does not require every factor to appear before a court can
find that termination is in a child’s best interest.” See In re S.L.A., 223 S.W.3d 295, 301
(Tenn. Ct. App. 2006) (citing State of TN Dept. of Children’s Servs. v. T.S.W., No.
M2001-01735-COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In
re I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct.
31, 2006)).


10
     The factors at Tenn. Code Ann. ' 36-1-113(i) are:

          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;
          (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.


                                                         7
        The court’s holding that termination of Mother’s rights was in Brayden’s best
interest implicates the factors found at Tenn. Code Ann. ' 36-1-113(i)(1), (2), (3), (5),
(6), (7), and (8); Mother contends that the court did not consider the factors listed at Tenn.
Code. Ann. ' 36-1-113(i)(2), (3), (4), or (5). 11 We have reviewed the record, and it
clearly and convincingly supports the court’s determination that Mother had not made
adjustments to her life sufficient to address the problems which led to Brayden coming
into DCS custody and that Mother was unable to care for him. Specifically, Mother
testified that she did not have a job and had no source of income; that any money she got
went toward the purchase of drugs; that her drug use impaired her ability to maintain a
job; that she had been under the influence of drugs while visiting with Brayden. Further,
we agree with the trial court that Brayden’s best interest necessitated the stability
achieved by the resolution of this matter, which Mother testified she could not provide,
stating she could not be a “good mom, a stable mom, right now.” She further testified
that she had been in rehab three times for her drug abuse since Brayden was taken into
DCS custody and had completed only one program.

      In accordance with the evidence, we conclude that the holding of the court is
supported by clear and convincing evidence and discern no error in allowing the paternal
grandmother, Debora S., to testify. The decision of the trial court is affirmed.



                                                         ________________________________
                                                         RICHARD H. DINKINS, JUDGE




11
   Mother asserts that “the Department [of Children’s Services] never made reasonable efforts toward
reunification.” Mother also states that “the bias against the mother that was apparent from the testimony
[of] DCS staff inhibited them from helping her reunify with her child.” In support of this statement,
mother cites 49 pages of the transcript, several pages of which contain testimony of family members and
evidentiary objections and responses from counsel. First, this general and vague reference to the
transcript does not provide the “appropriate references to the record” as required by Tenn. R. App. P.
27(a)(7)(A); second, upon reviewing the testimony to which we have been cited, we do not perceive the
bias Mother alleges. Once there was a finding of severe abuse, the court entered an order on October 7,
2013 that relieved DCS of its obligation to make reasonable efforts toward reunification. It is clear from
the record that DCS did make an effort to reunite Mother and Brayden prior to October 7 by developing a
permanency plan, funding therapeutic visits, providing a referral and background information for a
psychological assessment, and administering drug tests. Mother’s argument is without merit.

                                                    8
