                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   September 18, 2013 Session

                                   IN RE KAYLA N.A. ET AL.

                     Appeal from the Chancery Court for Knox County
                     No. 181378-3    Michael W. Moyers, Chancellor




               No. E2012-02662-COA-R3-PT-FILED-OCTOBER 31, 2013


Megan A.A. (“Mother”) appeals the termination of her rights to her children, Kayla N.A. and
Haylei M.A. (“the Children”).1 The Department of Children’s Services filed a petition
alleging that the Children were dependent and neglected as a result of both parents’ drug
abuse. On the same day, the juvenile court entered an ex parte order awarding temporary
custody of the Children to Teresa W., the Children’s paternal grandmother (“Grandmother”).
After later entering an agreed order that adjudicated the Children as dependent and neglected,
the court awarded temporary legal and physical custody to Grandmother. More than a year
after the Children came into her custody, Grandmother filed a petition in the trial court to
terminate Mother’s parental rights. Following a bench trial, the court granted the petition
based on its finding that Mother abandoned the Children by willfully failing to visit and
support them. The court further found that termination of Mother’s rights is in the Children’s
best interest. The court stated that it made both findings by clear and convincing evidence.
Mother appeals. We affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                             Affirmed; Case Remanded

C HARLES D. S USANO, JR., P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Joshua Hedrick, Knoxville, Tennessee, for the appellant, Megan A. A.

Wayne D. Wykoff, Knoxville, Tennessee, for the appellee, Teresa W.


        1
          The parental rights of the Children’s biological father, Bradley J.A., were terminated by default
judgment. No appeal was taken as to this action of the trial court. We refer to him only as is necessary to
recite the facts relevant to Mother’s case.
                                                 OPINION

                                                       I.

      Grandmother filed her petition to terminate Mother’s rights on September 27, 2011.
When the bench trial began in October 2012, Kayla was four and Haylei was nearly three.
The Children had been in Grandmother’s custody continuously for more than two years.
Mother and the biological father, Bradley J.A. (“Father”), were then in the midst of a divorce
proceeding.

        Mother, then 22, married Father on September 15, 2008, a month after their first child,
Kayla, was born. Soon after Kayla’s birth, Father began abusing prescription pain
medications, while Mother continued her years-long marijuana habit. She testified she
stopped using marijuana after she learned she was pregnant with Haylei. Hospital records
reflect that Mother had a negative drug screen at the time of Haylei’s birth in December
2009. Soon after the child was born, however, Mother “fell into” the same pain pill addiction
as Father. Mother testified that they financed their drug habits with Father’s income from
working odd jobs and money Grandmother gave them before she became aware of their drug
problems.

        On August 11, 2010, at Mother’s request, Grandmother picked up Kayla, then two,
at the home of the child’s maternal grandmother. Mother conceded she was at home,
“probably . . . doing pills at the time.” Upon her arrival, Grandmother discovered that Kayla
was sick with a fever. Grandmother took the child to the emergency room where she was
admitted with a fever of over 106 degrees. Hours later, Mother arrived and reported that, for
more than a month, she had not administered an antibiotic that Kayla had been prescribed for
a chronic kidney infection. In her defense, Mother testified that her grandmother, a nurse,
had advised her not to give the child the prescribed medication because it would “crystallize”
her kidneys over time. Grandmother remained at Kayla’s side as she remained hospitalized
for the next week. During that time, Father, for the first time, informed Grandmother that
he and Mother were addicted to pain pills, mainly hydrocodone. When Kayla was
discharged, she joined her sister at Grandmother’s home, where the Children have lived with
Grandmother and her husband, Jim,2 ever since.

       The Children’s situation was referred to DCS. On August 27, 2010, DCS visited the
parents’ home and later obtained an ex parte order formally granting temporary custody of
the Children to Grandmother. Mother admitted that, on the occasion of DCS’s visit, she



       2
           Jim is not the biological grandfather of the Children.

                                                      -2-
tested positive for “marijuana, benzos, cocaine, and Oxys.” She testified that earlier that day,
she had used cocaine for the first time.

        Initially, Grandmother agreed to care for the Children and to supervise the parents’
visits with the Children in order to give Mother and Father a chance to resolve their drug
problems and “do the right thing.” Grandmother testified that she agreed to bring the
Children to the parents’ home because they did not have money for gas to come to her home.
At times, visits were cut short because Mother and Father “were obviously high.” In
December 2010, the court entered an agreed final order adjudicating the Children dependent
and neglected in Mother’s custody. That same month, Mother began an intensive outpatient
drug program at Helen Ross McNabb Center in Knoxville. She failed every drug screen she
was given and was dismissed from the program. Mother testified she had been diagnosed
as being bi-polar, and once admitted herself to a hospital because she “felt like hurting
myself or somebody else. . . .” In May 2011, the court, on Grandmother’s motion, amended
the visitation order to provide that visits would henceforth take place at Parent Place in
Knoxville under the supervision of its staff.

        In June 2011, Mother moved to Dayton, Ohio. At trial, Mother explained that she
moved there because she could not stop abusing drugs while living with Father, who had no
interest in quitting. Mother said that other than her mother, who was a lifelong drug addict
herself, she had no other family in Tennessee. Mother said she intended to rely on her
extended family in Dayton for help. In later testimony, Mother acknowledged that, in a pro
se, handwritten “answer,” she initially stated that the reason she moved to Ohio was because
her grandmother there was very ill. Mother explained that this was true, but, once there, she
realized it was an environment in which she could stop her drug abuse, so she decided to
stay. Mother conceded that once in Ohio, she smoked marijuana with a cousin every day for
the first month. She explained she used marijuana to help ease her withdrawal from the pain
pills. She testified she quit her pill addiction on her own and “it was very hard.” Mother
agreed she left Knoxville knowing that visiting the Children some six hours away would be
difficult, but felt it was more important to focus on getting “clean.” Within weeks, however,
Father also came to Ohio. He moved in with Mother and her cousin and he and Mother
resumed abusing pain pills.

       At the end of June 2011, Mother left Father and moved out of her cousin’s home. In
July, Mother met her new boyfriend, D.H., and moved in with him.3 Mother and D.H., a
single parent, met at “Riders,” a social “club” frequented by motorcycle riders. Mother
conceded there was drinking, but testified it was not a problem to bring children because


        3
         The final termination decree, filed on April 5, 2013, nunc pro tunc to November 4, 2012, states as
a post-judgment fact that D.H. “is now deceased, having taken his own life.”

                                                   -3-
“nobody gets drunk . . ., not when there’s children there.” D.H. supported Mother and she
became his young son’s primary caregiver. The “family” also received food stamps. D.H.
admitted to a “very long criminal history of arrests.” Most recently, he was arrested in 2012
for disorderly conduct outside a bar where he and Mother got drunk.

        In October 2011, Mother completed an intake appointment at Parent Place and began
visiting the Children. She described the visits as “great.” She said the Children welcomed
her, were excited to play with her, and were reluctant to leave at the end of each visit. She
agreed that she missed scheduled visits in 2012 during February, June, July and August.
Further, the center was closed during December 2011 and May 2012 for holidays. Mother
admitted that on some occasions she was late and the Children left before she arrived.

        In Ohio, Mother stayed home to care for D.H.’s son. From November 2011 until
January 2012, she accepted seasonal employment at a Victoria’s Secret call center. She
testified she was not kept on after the holidays, but planned to apply at other call centers for
a permanent position. She also planned to apply for financial aid to attend school to become
a dental hygienist. Mother testified she did not want to depend on public assistance and was
willing to “work three jobs” if she had to as long as they were not fast food jobs. She
explained she worked in fast food restaurants for years as a teenager and for several months
after Kayla was born, and was not interested in such work anymore. Mother acknowledged
that, in her deposition, she had agreed that she basically lived off of others.

        In other testimony, Mother conceded that she had lied in discovery when she denied
an “ongoing” drug habit. On questioning by the court, Mother admitted that her continuing
use of marijuana would be considered an “ongoing drug habit,” but said she did not abuse
marijuana and did not consider it to be a problem – in her view, it was not a drug. Mother
testified that she stopped her marijuana use for a year, from August 2011 until August 2012
in an effort to get her children back, but “broke down” and smoked two months before trial.
Mother told the court she did not plan to resume using marijuana every day if she regained
custody of the Children, but conceded she would smoke “[m]aybe once in a while when
they’re not around.”

       At the time of trial, Grandmother, a commercial banker for some 30 years, had
returned to work in order to provide insurance benefits for the Children. She and Jim, a
recently retired detective with the Knox County Sheriff’s Office, had put their retirement
plans on hold. They leased a house with more room and a yard for the Children. Mother
continued to live in Ohio with D.H. She testified she was enrolled in a drug treatment
program, but had not completed it. Mother’s drug counselor testified that the treatment
program involved twice-weekly group sessions and random drug screens. In addition, clients
met with him individually once a month. Mother had had no individual sessions because of

                                              -4-
her sporadic attendance at the group sessions. Mother attended the program a total of seven
times between May 2012 and August 2012. After passing a drug screen in August, she had
not returned to the program or returned calls from her counselor. Mother was eligible to stay
in the program but, because of her extended absences, would have to start over.

       Following the termination hearing, the court ordered Mother’s rights terminated. The
court expressly concluded that clear and convincing evidence showed that Mother
“abandoned her minor children for the 120 day period set forth at TCA § [36-1-113](g)(1)
and TCA § 36-1-102.” On further considering the best interest of the Children, the trial court
found that all but one statutory factor weighed in favor of termination. The court “regretfully
conclude[d] that clear and convincing evidence has been presented . . . that justifies and
requires termination of [Mother’s] parent rights. . . .” Mother filed a timely notice of appeal.

                                                       II.

                                                       A.

        Mother raises the following issue as taken verbatim from her brief:

                   Whether the trial court erred in terminating [Mother’s] parental
                   rights where her failure to visit or support was not willful.

                                                       B.

       On appeal, as an additional “issue,” Grandmother “seeks a finding that at least one (1)
additional ground for termination exists in this case.” (Emphasis added). To this end,
Grandmother asserts as additional grounds Mother’s substantial noncompliance with the
permanency plan, severe child abuse,4 and the persistence of the conditions that led to the
Children’s removal. On our review of the entire record, we observe that these additional
grounds were not specifically pleaded. We therefore limit our review to the grounds
pleaded.5




        4
          In her amended complaint, Grandmother did allege severe child abuse and specifically alluded to
the fact that Mother “used drugs while pregnant with one or both of the children.” In this appeal, she relies
upon abuse in that Mother failed to give a child “appropriate medical care.” This latter charge of abuse was
never alleged.
        5
            As can be seen, Mother does not challenge the trial court’s “best interest” determination.

                                                      -5-
                                              III.

        This Court’s duty is 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 otherwise. Id.; Tenn. R. App. P. 13(d). In weighing the preponderance of
the evidence, great weight is accorded to the trial court’s determinations of witness
credibility, which shall not be reversed 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,
744-45 (Tenn. 2002).

        It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and the government, they are not absolute, and they
may be terminated upon sufficient proof of appropriate statutory grounds. See Blair v.
Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). To support the termination of parental rights,
petitioners must prove both the existence of one of the statutory grounds for termination and
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). Both
of these elements must be established by clear and convincing evidence. See Tenn. Code
Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d at 546. Evidence satisfying the clear and
convincing evidence standard establishes that the truth of the facts asserted is highly
probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9
(Tenn. Ct. App. M.S., filed August 13, 2003), and eliminates any serious or substantial doubt
about the correctness of the conclusions drawn from the evidence. In re Valentine, 79
S.W.3d at 546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004).

                                              IV.

        Mother challenges the trial court’s finding that she abandoned the Children by failing
to visit or support them. The gist of her argument is that her lack of action was not willful.

       We address the statutory provisions implicated by the issues raised in the pleadings
as well as the trial court’s findings. Tenn. Code Ann. § 36-1-113 (2010) sets out the grounds
upon which parental rights may be terminated. The statute provides, in relevant part, that
grounds for termination exist when “[a]bandonment by the parent or guardian, as defined in



                                              -6-
§ 36-1-102, has occurred.” Tenn. Code Ann. § 36-1-113(g)(1). In turn, Tenn. Code Ann.
§ 36-1-102(1)(A)(i)(2010) defines “abandonment,” in relevant part, as follows:

              For a period of four (4) consecutive months immediately
              preceding the filing of a proceeding or pleading to terminate the
              parental rights of the parent(s) or guardian(s) of the child who
              is the subject of the petition for termination of parental rights or
              adoption, that the parent(s) or guardian(s) either have willfully
              failed to visit or have willfully failed to support or have willfully
              failed to make reasonable payments toward the support of the
              child. . . .

“To prove the ground of abandonment, a petitioner must establish by clear and convincing
evidence that a parent who failed to visit or support had the capacity to do so, made no
attempt to do so, and had no justifiable excuse for not doing so.” In re Angela E., 402
S.W.3d 636, 640 (Tenn. 2013)(citing In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App.
2005)). In the present case, for purposes of establishing abandonment by failure to visit or
support, the four-month period ran from May 27, 2011 until September 27, 2011, the date the
termination petition was filed.

       The trial court made extensive findings in support of its decision. We quote pertinent
portions of its termination order:

              [S]upervised visitation prior to May 2011 involved
              [Grandmother] and her husband transporting the [C]hildren to
              [Mother’s and Father’s] home for two hours each weekend.

                                           *   *     *

              It was apparent from the testimony that during this period in
              [Mother’s and Father’s] lives, all of their resources and all of
              their activities were directed toward their drug habits.

                                           *   *     *

              In May 2011, because of difficulties with the supervised
              visitations conducted by [Grandmother], . . . [Grandmother and
              Jim] sought and were granted a modification to the custody
              order, limiting [Mother’s and Father’s] visitation with their
              children to supervised visitation at the Parent Place in

                                               -7-
              Knoxville. . . . The evidence indicates that [Mother and Father]
              failed to visit their children at the Parent Place until late October
              2011, subsequent to the filing of this Petition for termination.
              The evidence further indicates that for the 120 days period prior
              to the filing of this Petition . . ., [Mother and Father] offered no
              material support for their children, and that subsequent to the
              filing of this Petition, the only material support offered by
              [Mother] . . . was a $25 check sent in February 2012, along with
              unspecified toys and clothing brought to the children . . . during
              one of [Mother’s] intermittent visits.

              [F]rom June 2011 through September 2011 when the Petition .
              . . was filed, [Mother and Father] chose to relocate to Ohio,
              leaving their children behind in Knoxville . . . in the custody of
              [Grandmother] and her husband. During this period . . . neither
              [Mother nor Father] made any effort to provide material support
              for their children, nor to visit their children . . . .

       At trial, Mother admitted that she neither visited the Children nor paid any child
support in the four months before the termination petition was filed. She took the position
that her conduct was not willful – at first, she was addicted to drugs, then, she was living far
away in order to end her drug habit, all of which left her unable to visit or support the
Children. In concluding that abandonment was proven, the trial court expressly rejected
Mother’s testimony to the extent that she suggested that her admitted failure to maintain
contact with the Children or provide anything toward their support in the relevant period was
involuntary or beyond her control. The trial court stated:

              [Mother] attempts to excuse her behavior by arguing that during
              the early part of the 120 day period in question she was still
              under the influence of narcotic drugs. . . . [A]s an excuse both
              for her lack of visitation and lack of support for her children, she
              argues that once cohabiting with her new boyfriend . . . , she
              lacked income and transportation resources which would allow
              her to travel to Knoxville . . . .

                                           *   *     *

              If [Mother] has truly ended her addiction, this Court finds that
              the most important factor was her choice to cease cohabitation
              with [Father], a choice which could have as easily been made

                                               -8-
              and executed in Knox County as in Dayton, Ohio. Therefore, to
              the extent that it became more difficult for [Mother] to visit her
              children subsequent to her decision to relocate to Dayton . . . ,
              such difficulty was of her own making, and was therefore
              willful.

                                         *    *    *

              Additionally, the Court is not impressed or persuaded by
              [Mother’s] claims that poverty affected her ability to visit or
              support her children. During the entire 120 day period at issue,
              [Mother] was never homeless. . . . [Mother], who presented no
              evidence of any physical or mental condition which would
              render her incapable of gainful employment, simply chose not
              to work.

                                         *    *    *

              [T]estimony indicated that [Mother] grossed between $3,000-
              $3,600 in the course of her employment with Victoria’s Secret
              . . . and yet dedicated none of those funds, apart from a single
              $25 check, to the support of her children, and apparently failed
              to set those funds aside to pay the cost of transportation between
              Dayton and Knoxville. In short, this Court finds that [Mother]
              was not without means to visit her children, and that even if she
              was, her lack of means is entirely due to her voluntary decision
              not to seek or hold gainful employment. . . . The Court finds
              that as a woman in her mid-20s who appears to the Court to be
              of average to above average intelligence and not suffering any
              mental or physical disability which would interfere with her
              ability to understand the natural consequences of her actions,
              [Mother’s] decision not to seek gainful employment, and
              therefore not to earn an income which would allow her to
              provide even token support for her minor children must be
              considered willful as that term is used in the statutory scheme.

       The trial court accurately summarized and properly considered the relevant evidence.
As the court observed, the evidence establishing that Mother failed to visit or support the
Children during the critical four-month period was “essentially undisputed.” The court
further found that Mother had no justifiable excuse for abandoning the Children in this

                                             -9-
manner because her decisions and actions were voluntary and willful. We agree. Mother’s
purported intense focus, above all else, on ending her drug addiction is not persuasive.
Mother moved to Ohio in June 2011. She spent the first several weeks smoking marijuana
every day with a cousin. She invited Father to join her and they resumed their abuse of pain
pills. Within a month, she met and moved in with a new boyfriend. Mother took what little
cash she had and paid a utility deposit for her and her boyfriend’s new apartment. Otherwise,
he supported her completely, while she stayed home and essentially provided him with free
child care rather than looking for paid employment. Mother expressly admitted that she was
aware of her obligation to support the Children, but denied knowing that her failure to do so
was a ground for terminating her rights. She testified, “[h]ad I known that, I probably would
have paid child support.” Visits were available at Parent Place since May 2011, but Mother
did not have her first visit until October 2011. In all, she visited 6-7 times leading up to the
trial. After the four-month period had passed, Mother took a seasonal position and earned
several thousand dollars. Even then, aside from a single $25 payment, however, Mother
paid nothing – none of the money she earned or received from her boyfriend – toward the
Children’s support. At trial, Mother agreed she had not practiced good parenting, but said she
had learned from her past mistakes. On our review of the evidence, however, we find it
difficult to discern any significant improvement in her conduct where the Children are
concerned. The proof shows only that Mother placed no emphasis on maintaining contact
with the Children or providing for their support during month after month before her parental
rights were at stake and only a little effort after that.

       The evidence does not preponderate against the trial court’s finding, by clear and
convincing evidence, that Mother willfully failed to visit and support the Children. The trial
court did not err in terminating Mother’s rights on the ground of abandonment pursuant to
Tenn. Code Ann. § 36-1-113(g)(1), as defined in Tenn. Code Ann. § 36-1-102(1)(A)(i).

                                              V.

        As this Court has observed, “[a] person seeking to terminate parental rights must
prove both the existence of one of the statutory grounds for termination and that termination
is in the best interest of the child.” In re A’Mari B., 358 S.W.3d 204, 210 (Tenn. Ct. App.
2011)(citing Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367
(Tenn.2003)). In the present case, the trial court undertook a detailed analysis of all of the
statutory factors applicable to its determination of the Children’s best interest. The court
concluded that all but one of the factors weighed in favor of termination. The court found,
for example, that Mother’s continuing drug use evidenced her complete failure to make “such
an adjustment of circumstance, conduct, or conditions as to make it safe and in the
[children’s] best interest to be in the home of the parent . . . .” Tenn. Code Ann. § 36-1-
113(i)(1). As to this factor alone, the court concluded it was “highly unlikely that [Mother]

                                              -10-
intends, at any foreseeable time, to amend her conduct in such fashion that any Court could,
in good conscience, allow these young children back in her care.”

        As previously noted, Mother does not challenge the trial court’s best interest
determination. Nevertheless, in the interest of justice, we have reviewed the record and are
satisfied with the court’s decision. The evidence does not preponderate against the trial
court’s finding, by clear and convincing evidence, that the Children’s interest is best served
by permanently severing Mother’s parental rights.

                                             VI.

      The judgment of the trial court is affirmed. Costs on appeal are taxed to appellant,
Megan A.A. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and collection of costs assessed below.




                                    __________________________________________
                                    CHARLES D. SUSANO, JR., PRESIDING JUDGE




                                             -11-
