                                                                                           02/08/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs December 3, 2018

                                  IN RE SERENITY W.

                  Appeal from the Juvenile Court for Cocke County
                 No. TPR-05451     Steven Lane Wolfenbarger, Judge
                      ___________________________________

                             No. E2018-00460-COA-R3-PT
                        ___________________________________


Charles D. Susano, Jr., J., concurring in part and dissenting in part.


       The majority holds, in its own words, that

              the evidence was less than clear and convincing as to two of
              the statutory grounds but the record contains clear and
              convincing evidence to support one ground for termination.
              But because we also conclude that the evidence was less than
              clear and convincing that termination was in the child’s best
              interest, we reverse the termination of the mother’s parental
              rights.

I concur in the majority’s decision with respect to the subject of grounds for termination;
but I disagree with the majority’s judgment finding that the evidence does not show,
clearly and convincingly, that termination is in the best interest of the child. Accordingly,
I would affirm the trial court’s judgment terminating mother’s parental rights.

       There is much in the record demonstrating that mother is not a candidate for a
“mother of the year” award. What follows is an excerpting of some of the material in the
majority’s opinion. I am using these remarks to give the reader the “flavor” of this case:

              …Based on information that Mother provided during her
              assessments, the provider recommended that she complete
              intensive outpatient alcohol and drug treatment and individual
              mental health therapy. The provider also indicated that
              Mother would benefit from medication management for any
              medication she was prescribed. But Mother did not follow

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the recommendations… At the adjudicatory hearing on March
11, 2016, the court found clear and convincing evidence that
Serenity was dependent and neglected. Mother did not
appear at the hearing. And on April 25, 2016, she tested
positive for amphetamine and methamphetamine. After the
positive drug screen, she enrolled in a recovery program, but
dropped out a few months later. At the end of October 2016,
she rented a trailer home, but was evicted after a few months
because “[she] let just anybody in [her] house and the law
was there constantly.” After that, she lived either with
relatives or on the streets.

In early November 2016, the court ordered her to submit to a
hair follicle test, but Mother failed to comply by the court
imposed deadline. At the review hearing on December 9, the
court suspended her visitation until she appeared for a drug
screen. Mother did not appear until February 2017. She had
obtained the requested hair follicle test, but it was positive for
methamphetamine. Even so, the court allowed her to resume
supervised visitation because she passed the court-
administered drug screen.


                     *      *         *


Even after the termination petition was filed, [on March 31,
2017], Mother continued to use illegal drugs. After she
missed a scheduled visit with Serenity in late April, the
family service worker or FSW required Mother to submit to a
drug screen before rescheduling the visit. Mother repeatedly
failed to appear for the requested drug screen. As a result,
she did not visit with Serenity again until September.


                     *      *         *


At the termination hearing on February 2, 2018, the court
heard testimony from the FSW, Mother, the foster mother,
and Mother’s grandfather. According to the FSW, Mother’s
compliance with the permanency plan was spotty. He
acknowledged that she completed the required assessments

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and classes. But she never provided documentation that she
followed the recommendations from the assessments, and she
failed to maintain stable employment or housing. Although
she passed most of her drug screens, she had some notable
fails.

Serenity had been in the same foster home for over two years.
At three, she was thriving in her current environment. She
had formed a strong bond with her foster parents, who were
also her great-grandparents. The foster parents desired to
adopt her.

According to the FSW, Mother attended approximately sixty
percent of her scheduled visits. Most of her interactions with
Serenity were appropriate. Based on the FSW’s observations,
Mother did not appear to have a close relationship with
Serenity. Serenity never mentioned Mother to the foster
parents and separated easily when the visits ended.

For her part, Mother acknowledged her past mistakes. She
admitted to using methamphetamine as recently as September
2017. But she reported that she had been clean and sober
since November 12, 2017, a record for her. All of her
previous attempts to overcome her drug addiction had ended
after a month. She was also employed, living in a stable
home with her grandparents, and actively participating in
mental health therapy and intensive outpatient drug treatment.
Her outpatient treatment would be finished at the end of
February.


                    *     *         *


During the four-month period following removal, Mother
completed parenting and domestic violence classes but made
no attempt to address her drug addiction or mental health
issues. She delayed submitting to the required assessments
until after the four-month period. And even after the
assessments, she failed to seek the recommended treatment…


                    *     *         *

                              -3-
We cannot overlook Mother’s extended period of inaction.
Despite her early progress, Mother made no real effort to
address the conditions that prevented reunification for almost
two years.      She admitted that she was still using
methamphetamine in September 2017. While her recent
efforts are commendable, the evidence was clear and
convincing that Mother did not substantially comply with the
requirements of the permanency plan…


                    *     *         *


We conclude that, prior to the filing of the petition, Mother
did not exhibit an ability and willingness to personally
assume legal and physical custody or financial responsibility
for her child. When the termination petition was filed, almost
two years after Serenity entered foster care, Mother had not
yet addressed her drug addiction or mental health issues. She
also lacked stable employment and housing. Mother’s lack of
effort before the termination petition was filed undercuts any
willingness argument. And her recent positive changes are of
too short a duration to demonstrate that she is currently able
to assume custody of her child…


                    *     *         *


…Here, the trial court found that Mother’s recent positive
changes were insignificant in light of the length of time
Serenity had been in foster care and that it was too soon to
know if her adjustment would last.


                    *     *         *


…We recognize that Mother’s current sobriety is of short
duration. She could relapse; she has done so before. And a
relapse would jeopardize all of her recent progress…

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                                  *      *         *


             …The evidence does not preponderate against the trial court’s
             finding that Mother did not visit regularly. She had several
             gaps in visitation and only attended sixty percent of her
             scheduled visits.

(Citations and section headings omitted.)

       As previously noted, the trial court held that there was clear and convincing
evidence that mother did not substantially comply with the requirements of the
permanency plan. Tenn. Code Ann. § 36-1-113(g)(2). I agree. That determination has
serious constitutional and statutory consequences. In the case of In re Jacobe M.J., 434
S.W.3d 565 (Tenn. Ct. App. 2013), we stated the following:

             When at least one ground for termination of parental rights
             has been established, the petitioner must then prove, by clear
             and convincing evidence, that termination of the parent’s
             rights is in the child’s best interest. White v. Moody, 171
             S.W.3d 187, 192 (Tenn. Ct. App. 2004). When a parent has
             been found to be unfit upon establishment of a ground for
             termination of parental rights, then the interests of parent and
             child diverge. In re Audrey S., 182 S.W.3d 838, 877 (Tenn.
             Ct. App. 2005). The focus shifts to the child’s best
             interest. Id. at 877. Because not all parental conduct is
             irredeemable, Tennessee’s termination of parental rights
             statutes recognize the possibility that terminating an unfit
             parent's parental rights is not always in the child's best
             interest. Id. However, when the interests of the parent and the
             child conflict, courts are to resolve the conflict in favor of the
             rights and best interest of the child. Tenn. Code Ann. § 36–1–
             101(d). “The child's best interest must be viewed from the
             child's, rather than the parent's, perspective.” Moody, 171
             S.W.3d at 194.

Id at 572-73; See also In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005):

             The ultimate goal of every proceeding involving the care and
             custody of a child is to ascertain and promote the child's best
             interests. However, as important as these interests are, they do

                                             -5-
              not dominate every phase of a termination of parental rights
              proceeding. The best interests of the child do not become the
              paramount consideration until the trial court has determined
              that the parent is unfit based on clear and convincing
              evidence of one or more of the grounds for termination listed
              in Tenn. Code Ann. § 36–1–113(g). Once a parent has been
              found to be unfit, the interests of the parent and the child
              diverge. While the parent’s interests do not evaporate upon a
              finding of unfitness, Santosky v. Kramer, 455 U.S. 745, 753,
              102 S.Ct. 1388, 1394–95, 71 L.Ed.2d 599 (1982), the focus of
              the proceedings shifts to the best interests of the child.

In re Audrey S., 182 S.W.3d at 877.

        The majority believes that the nine factors listed in Tenn. Code Ann. § 36–1–
113(i) favor mother’s position that the evidence does not show, clearly and convincingly,
that it is in the best interest of the child to terminate mother’s parental rights. I strongly
disagree with the majority.

       With all due respect, I believe that the majority has fallen into the error of
approaching this inquiry from the standpoint of the mother and not the child. As a human
being, and a parent, I can understand how one might make this error; but, as a judge, one
must always remember that the issue is what is best for the child, not the mother. This
child has languished in limbo for over three years. I firmly believe that the evidence
shows, clearly and convincingly, that it is in the best interest of the child to be with and
adopted by her blood kin.

       Mother has not demonstrated that she is ready to parent the child. For three plus
years, the child has had the presence and love of her great-grandparents. Their home is
clearly a good place for the child. Mother, for too long, has lived a life on the dark side.
The relevant four months have come and gone with no change in mother’s lifestyle. The
majority emphasizes the mother’s improvement following the four months at issue. As a
number of cases state, her acts are “too little, too late.” See e.g., In re Emily N.I., No.
E2011–01439–COA–R3–PT, 2012 WL 1940810, at *16 (Tenn. Ct. App. May 30,
2012) (“We believe that the Parents’ refusal to complete a number of the requirements
until after the termination petition was filed ... was simply ‘[t]oo little, too late’” given
the length of time the child had been removed from the parents’ custody.) (quoting In re
A.W., 114 S.W.3d 541, 54647 (Tenn. Ct. App. 2003) (indicating that mother’s efforts
after the filing of the termination petition constituted improvement, but ultimately
holding that such improvement was “[t]oo little, too late”)); see also In re Jada T.L.P.,
No. E2011–00291–COA–R3–PT, 2011 WL 3654486, at *6 (Tenn. Ct. App. Aug. 19,
2011) (holding that mother’s submission to drug tests after the filing of the termination


                                             -6-
petition was “too little, too late”). I would pave the way for the child to be adopted by
these loving family members.

      Accordingly, I respectfully concur in part and dissent in part.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




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