                                                                                            09/28/2017
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                              Assigned on Briefs August 1, 2017

                                      IN RE L.M.H., ET AL.

                      Appeal from the Juvenile Court for Knox County
                           No. 139836 Timothy E. Irwin, Judge
                         ___________________________________

                                No. E2017-00604-COA-R3-PT
                           ___________________________________


In this termination of parental rights case, the Department of Children’s Services filed a
petition to terminate the parental rights of J.M.F. (father) with respect to L.M.H. and
K.K.F. (the children).1 DCS alleged the following grounds for termination: (1)
persistence of conditions; and (2) substantial noncompliance with the permanency plan.
DCS also sought to terminate father’s rights with respect to L.M.H. on the ground of
severe child abuse. The trial court entered an order finding clear and convincing
evidence supporting each ground for termination. By the same quantum of proof, the
trial court found that termination of father’s rights is in the best interest of the children.
Father appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.

Ben H. Houston II, Knoxville, Tennessee, for the appellant, J.M.F.

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




       1
           The children’s mother surrendered her parental rights at an earlier time.
                                        OPINION

                                             I.

       L.M.H. was born in February 2011. On February 12, 2015, K.K.F. tested positive
for drugs at birth. On March 20, 2015, DCS filed a petition for a restraining order, asking
the court to find the children dependent and neglected. Following a hearing on March 30,
2015, the court found the children to be dependent and neglected due to mother’s
substance abuse issues. The trial court also found K.K.F. to be the victim of severe child
abuse by the mother based on her prenatal drug use. The trial court allowed the children
to remain in father’s custody and ordered that mother would have no contact with the
children.

        On May 12, 2015, the guardian ad litem filed an emergency motion to review the
children’s placement. The GAL alleged that father had no income to support the children
because he had lost his job; that he was providing inappropriate care to the children; and
that he was not participating in court-ordered services. On June 16, 2015, the court found
probable cause that the children were dependent and neglected. The court found that
father was not complying with K.K.F.’s need for physical therapy; that he was not
cooperating with the GAL; and that he was allowing mother to have contact with the
children in violation of the court’s order. As a consequence, the court placed the children
in the temporary custody of DCS for foster care.

       When the children entered foster care, they had considerable problems. K.K.F.
suffered from torticollis, a condition affecting her neck and rendering her unable to hold
up her head. She was in need of physical therapy to avoid surgery. Also, her head was
misshaped, and she had an unhealed sore on her head that left a scar. With respect to
L.M.H., the foster mother testified that he “had a lot of trouble attaching to anyone really,
he had a lot of anger, he had a lot of behavioral issues.” She stated that he “could be
extremely violent and destructive” and was behind educationally.

        On June 26, 2015, a permanency plan was developed for father. The plan required
father to do the following: (1) complete a mental health evaluation and provide accurate
and thorough information; (2) cooperate with DCS and all service providers; (3) provide
a stable and safe home environment; and (4) maintain a legal source of income sufficient
to provide for the family. The court later modified the plan to add two requirements, i.e.,
that father complete basic parenting classes and complete an alcohol and drug assessment
if he fails a drug screen. On September 16, 2015, the court ratified the permanency plan.

      The trial court held a permanency hearing and found father to be noncompliant.
The court found that father had failed to complete a mental health assessment until
September 8, 2015, despite knowing that this had been a requirement since June 2015.
Additionally, the court found that father was not providing an appropriate home for the
                                           -2-
children because he was living with mother who suffered from substance abuse issues.
The court ordered that the children would remain in the temporary custody of DCS.

        L.M.H. and his half-brother2 disclosed to the foster parents that father had been
abusive. L.M.H. reported that father hit him with a hanger and threw him off a bunk bed.
On October 8, 2015, L.M.H. began treatment with a therapist. L.M.H. reported to the
therapist that father was verbally and physically aggressive with him. L.M.H. and his
half-brother both reported to the therapist that L.M.H. was hit with a belt, hit in the
genitals, kicked, thrown to the floor, and thrown up against a wall. Early in therapy, the
therapist diagnosed L.M.H. with post-traumatic stress disorder (PTSD). The therapist
testified that “when they came for therapy, their behavior was very poor, and that’s
typically a true reflection of kids who have experienced trauma.” She reported that
L.M.H. “will need therapy for a very long time to address the significant trauma
symptoms he has exhibited.” Based on her treatment of L.M.H., she could not
recommend that L.M.H. be returned to father’s home. She found that it “would be
psychologically damaging to remove [L.M.H.] from the current foster home . . . and
would disrupt the progress he is making and return him to a state of fear and anxiety.”

        On November 4, 2015, DCS filed a motion to suspend father’s visitation with the
children based upon the recommendation of the therapist. DCS asserted that “it appears
that the children have significantly worse behavior after visits with their parents and this
behavior can last for several days after visits.” DCS asked the court to suspend visitation
until the therapist “is of the opinion that the children can initiate supervised contact with
their parents without the likely danger of psychological harm which will also necessitate
progress for the parents on their issues as well.” The court entered an order suspending
visitation.

       After father’s visitation with the children was suspended, he failed to maintain
contact with DCS. On July 6, 2016, DCS filed a petition to terminate father’s parental
rights to the children. DCS alleged the following grounds to terminate father’s rights:
(1) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3); and (2)
substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-
1-112(g)(2). DCS also alleged that L.M.H. is the victim of severe child abuse pursuant to
Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-1-102(b)(22). The trial court found clear and
convincing evidence supporting each ground for termination. The court also found that
termination of father’s rights is in the best interest of the children. He appeals.

                                              II.

       Father raises the following issues on appeal as taken verbatim from his brief:


       2
              L.M.H.’s half-brother is not subject to this termination proceeding.
                                              -3-
              Did the trial [c]ourt err by allowing hearsay statements made
              by the children into evidence under circumstances that did not
              indicate trustworthiness?

              Was [DCS] barred by the doctrine of res judicata as well as
              by the plain language of Tenn. Code Ann. § 37-1-129(b)(2)
              from pursuing a case of severe abuse against [f]ather?

              Did the trial [c]ourt err by terminating the parental rights of
              [f]ather for severe abuse pursuant to Tenn. Code Ann. §§ 36-
              1-113(g)(4); 37-1-102(b)(22)(B); and 37-1-102(b)(22)(C)?

              Did the trial [c]ourt err by terminating the parental rights of
              [f]ather for substantial noncompliance with the permanency
              plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2)?

              Did the trial [c]ourt err by terminating the parental rights of
              [f]ather for persisten[ce of] conditions pursuant to Tenn. Code
              Ann. § 36-1-113(g)(3)?

              Did the trial [c]ourt err by finding that . . . termination of
              [f]ather’s parental rights was in the best interest[] of his
              children . . . ?

(Italics in original; paragraph numbering in original omitted.)

                                            III.

        A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent’s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings
are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).

      To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least 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
                                          -4-
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “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).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

        Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

       We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
that in an appeal from an order terminating parental rights the Court of Appeals must
review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interest[ ], regardless of whether the parent challenges
these findings on appeal.”)

       The Supreme Court has stated our standard of review:

              An appellate court reviews a trial court’s findings of fact in
              termination proceedings using the standard of review in Tenn.
              R. App. P. 13(d). Under Rule 13(d), appellate courts review
              factual findings de novo on the record and accord these
              findings a presumption of correctness unless the evidence
              preponderates otherwise. In light of the heightened burden of
              proof in termination proceedings, however, the reviewing
              court must make its 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. 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. Additionally, all other
              questions of law in parental termination appeals, as in other
              appeals, are reviewed de novo with no presumption of
                                           -5-
              correctness.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

                                              IV.

                                              A.

        In his brief, father asserts that the trial court erred in allowing the foster mother to
testify about statements that L.M.H. made to her regarding father’s abuse. Father
objected to the testimony on the basis of hearsay, but the court overruled the objection.
The court found that the statements were a “child’s unsolicited statement regarding
abuse.” Under Tenn. R. Evid. 803(25), the following statements are not excluded by the
hearsay rule:

              Provided that the circumstances indicate trustworthiness,
              statements about abuse or neglect made by a child alleged to
              be the victim of physical, sexual, or psychological abuse or
              neglect, offered in a civil action concerning . . . issues
              concerning severe child abuse pursuant to Tenn. Code Ann. §
              37-1-102(b)(21), or issues concerning termination of parental
              rights pursuant to Tenn. Code Ann. § 37-1-147 and Tenn.
              Code Ann. § 36-1-113 . . . .

Father claims that L.M.H.’s statements to the foster mother should not have been
admitted because they “were not made under circumstances that indicate
trustworthiness.” He bases this argument on the therapist’s acknowledgement that
L.M.H. has a problem with lying and the fact that the statements were not made in a
forensic interview or other neutral setting to a third party with no interest in the case.

        This Court has stated that “the determination of trustworthiness is a matter for the
trial court to decide and [that] decision will not be disturbed on appeal unless there is a
showing of abuse of discretion.” State Dept. of Human Servs. v. Purcell, 955 S.W.2d
607, 609 (Tenn. Ct. App. 1997). Furthermore, “[w]here the trial judge has seen and
heard the witnesses, especially if issues of credibility and weight to be given oral
testimony are involved, considerable deference must be accorded those circumstances on
review.” Id. We will find an abuse of discretion “only when the court that made the
decision applied incorrect legal standards, reached an illogical conclusion, based its
                                            -6-
decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party.” Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008).

      L.M.H. made the statements at issue to the foster mother who testified regarding
them. He made the same statements to the therapist. Additionally, L.M.H.’s half-brother
made statements to the foster mother and to the therapist about the same instances of
abuse of L.M.H., as reported by him.

        In summary, the evidence demonstrates that L.M.H. made unsolicited statements
to the foster mother and made the same statements to the therapist. His half-brother
corroborated these statements by reporting the same abuse of L.M.H. to the foster mother
and the therapist. The trial court, who observed the “reporting” witnesses, held that “the
circumstances [of the statements] indicate trustworthiness.” The evidence does not
preponderate against the trial court’s credibility determinations. The court did not abuse
its discretion in admitting L.M.H.’s statements under the authority of the exception to the
hearsay rule provided in Tenn. R. Evid. 803(25).

                                              B.

        Father asserts that DCS is barred from pursuing a claim of severe child abuse
against him on the basis of res judicata. He claims that res judicata applies because DCS
had the opportunity to address the issue of severe child abuse during the dependency and
neglect hearing on September 16, 2015 but failed to do so. “The doctrine of res judicata .
. . bars a second suit between the same parties or their privies on the same claim with
respect to all issues which were, or could have been, litigated in the former suit.”
Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012).

       The Supreme Court has stated the following with regard to raising the defense of
res judicata:

              Res judicata is one of the affirmative defenses that must be
              included in the defendant’s answer. However, in appropriate
              circumstances, it may be raised in a Tenn. R. Civ. P. 12.02(6)
              motion.

Id. (internal citation omitted). “In order to succeed on a plea of res judicata, . . . the party
raising the defense must plead it, and must carry the burden of proving it.” Gregory v.
Gregory, 803 S.W.2d 242, 244-45 (Tenn. Ct. App. 1990).

       This Court has stated that under Tenn. R. Civ. P. 8.03, “ ‘any . . . matter
constituting an affirmative defense’ must be set forth in a pleading prior to trial. Failure
to [plead] an affirmative defense generally results in a waiver of the defense.” ADT Sec.
                                           -7-
Servs., Inc. v. Johnson, 329 S.W.3d 769, 778 (Tenn. Ct. App. 2009). Tenn. R. Civ. P.
8.03 provides that “[i]n pleading to a preceding pleading, a party shall set forth
affirmatively facts in short and plain terms relied upon to constitute . . . res judicata . . .
and any other matter constituting an affirmative defense.”

        After reviewing the trial transcripts, as well as the pleadings and exhibits in the
record before us, we have found no indication that father raised the defense of res
judicata in any pleading filed in the trial court. In fact, the only time that father asserted
the issue of res judicata was during closing arguments before the trial court, and the trial
court did not address the defense in its ruling. Because father failed to plead the defense
of res judicata before the trial, father has waived that defense.

                                              C.

       Father also claims that DCS is barred from alleging severe child abuse as grounds
for termination under the language of Tenn. Code Ann. § 37-1-129(b)(2). In his brief,
father argues that that statute “appears to prohibit DCS and other parties from having a
second bite at the apple . . . since it mandates trial [c]ourts to determine whether or not
severe abuse occurred at the time of the dependency and neglect adjudication.” He
claims that Tenn. Code Ann. § 37-1-129(b)(2) required the trial court to make a finding
regarding severe child abuse during the September 16, 2015 hearing. We disagree.

       Tenn. Code Ann. § 37-1-129(b)(2) provides the following:

              If the petition alleged the child was dependent and neglected
              as defined in § 37-1-102(b)(13)(G), or if the court so finds
              regardless of the grounds alleged in the petition, the court
              shall determine whether the parents or either of them or
              another person who had custody of the child committed
              severe child abuse.

Tenn. Code Ann. § 37-1-102(b)(13)(G) defines a “dependent and neglected child” as one
“[w]ho is suffering abuse or neglect.” In this case, there was not a petition to declare the
children dependent and neglected under this definition. Furthermore, the hearing on
September 16, 2015 was upon a motion by the GAL alleging that father was in violation
of the court order prohibiting father from allowing the mother to have contact with the
children; the bench order placing the children in DCS custody; and for judicial review of
the progress with the permanency plan. Accordingly, no finding regarding severe child
abuse was required under the statute because DCS was alleging dependency and neglect
as defined in Tenn. Code Ann. § 37-1-102(b)(13)(G). Because Tenn. Code Ann. § 37-1-
129(b)(2) does not apply to this case, nothing in that statute prohibits DCS from pursing a
finding of severe child abuse.

                                             -8-
                                           V.

                                           A.

      As previously noted, DCS sought to terminate father’s parental rights on the basis
of persistence of conditions. Tenn. Code Ann. § 36-1-113(g)(3) allows a court to
terminate parental rights upon clear and convincing evidence of the following:

             The child has been removed from the home of the parent . . .
             by order of a court for a period of six (6) months and:

             (A) The conditions that led to the child’s removal or other
             conditions that in all reasonable probability would cause the
             child to be subjected to further abuse or neglect and that,
             therefore, prevent the child’s safe return to the care of the
             parent . . . still persist;

             (B) 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

             (C) The continuation of the parent . . . and child relationship
             greatly diminishes the child’s chances of early integration
             into a safe, stable and permanent home[.]

      With respect to persistence of conditions, the trial court found the following:

             [Father] has never taken any responsibility for the damage
             caused to his children. Despite multiple intervention services,
             he has apparently failed to learn anything about appropriate
             discipline or the impact of neglect and physical violence on
             children. He inflicted such harm on [L.M.H.] and failed to
             protect [him] from his wife’s substance abuse and from her
             neglect and inappropriate discipline; he minimized his wife’s
             substance abuse and failed to protect [L.M.H.] and [K.K.F.]
             from resulting neonatal abstinence syndrome.

             This Court agrees that [father’s] employment is a very
             positive thing. He works, he works hard, but that’s all he
             does. He continues to live at Hamilton Inn. This Court could
             not in good conscience place children there. He has done
             nothing to demonstrate to this Court that he could provide
             proper care for these children and keep them safe.
                                           -9-
(Paragraph numbering in original omitted.) Based upon these findings, the trial court
found clear and convincing evidence supporting the ground of persistence of conditions.

                                               B.

        The evidence does not preponderate against the trial court’s findings on this
ground. Father asserts that “the sole reason cited for a finding of dependence and neglect
in the [trial court’s] adjudicatory order . . . was the ‘inability of the father . . . to provide
an appropriate home due to the mother currently residing in his home. ’ ” He argues that
mother is no longer a part of his life.

       Father’s failure to provide an appropriate home for the children led to their
removal. He has subsequently failed to secure housing that would be safe and
appropriate for the children. The trial court found that the physical environment at
Hamilton Inn where father resides is not safe or healthy place for the children. Father
argues that, if the children were returned to him, he could possibly obtain a voucher so
that he could find appropriate housing. Obtaining this voucher, however, is speculative
and does not demonstrate that father has secured appropriate housing for the children.

       There are other issues with respect to the placement of the children with father.
Father has failed to maintain contact with DCS and has been uncooperative with DCS
throughout this case. He has failed to take responsibility for his actions leading to the
removal of the children and refuses to acknowledge the harm that he has caused the
children. Conditions persist that would subject the children to further neglect or abuse in
the custody of father. We hold, as a matter of law, that the evidence does not
preponderate against the trial court’s finding of clear and convincing evidence supporting
termination of father’s parental rights on the ground of persistence of conditions.

                                               C.

       A court may terminate a parent’s rights when “[t]here has been substantial
noncompliance by the parent . . . with the statement of responsibilities in a permanency
plan . . . [.]” Tenn. Code Ann. § 36-1-113(g)(2). The trial court found clear and
convincing evidence that father failed to substantially comply with the permanency plan.
The court made the following findings supporting termination of father’s parental rights
on that ground:

              The first thing on any permanency plan is to stay in touch
              with [DCS], to let them know your whereabouts. There was a
              whole litany of contacts since September 2016, more than
              I’ve ever heard in a case. Not one face-to-face meeting
              outside of court since September. That doesn’t signal to me
                                          - 10 -
              that this man wants his children back. He claims he’s been
              picked on by the [GAL], mistreated by [DCS]. This court
              does not find his testimony to be credible. He just chose not
              to participate. He did not show up for Child and Family
              Team Meetings. He did not demonstrate any interest in how
              his children were doing. He was not truthful during his
              mental health assessment and he did not follow through with
              even the minimal resulting recommendations. He did not
              make any progress in locating appropriate housing and did
              not take advantage of the assistance available from [DCS]; he
              just came in saying he doesn’t have housing because they
              took his kids. He never attempted an alcohol or drug
              assessment and he did not appear for any of the requested
              drug tests, including the hair follicle test agreed upon three
              months ago.

The trial court also found that DCS had “made extraordinary efforts in this case.” Based
upon these findings, the trial court found clear and convincing evidence that father failed
to substantially comply with the permanency plan.

                                            D.

        Father acknowledges that the permanency plan required him to obtain safe and
stable housing, but claims that he had appropriate housing at the time that the children
were removed. This is not correct. When the children were removed, father had
inappropriate housing because he allowed the mother who suffered from substance abuse
issues to be in the home with the children. At trial, father had inappropriate housing
because he lived in a hotel that the trial court deemed unsafe and inappropriate for the
children. The fact that father’s housing is inappropriate for a different reason than it was
at the time the children were removed is not the issue. The permanency plan required
father to obtain stable and safe housing for the children, and he has failed to do so.

       The permanency plan required father to complete a mental health assessment and
participate in all recommended services. Father completed a mental health assessment,
and the evaluator recommended individual therapy and case management. Despite the
plan being ratified in September 2015, father did not complete a parenting course or
therapy until December 2015. Furthermore, father refused case management when the
evaluator suggested it to him. It is clear that father did not take the recommendations
from the mental health assessment seriously.

      Father has refused to stay in contact with DCS, and consequently, DCS has not
been able to help father complete the requirements of the permanency plan. The
Supreme Court has stated that “[i]n the context of the requirements of a permanency plan,
                                          - 11 -
the real worth and importance of noncompliance should be measured by both the degree
of noncompliance and the weight assigned to that requirement.” In re Valentine, 79
S.W.3d at 548. While father completed a mental health assessment, a parenting class,
and some therapy, he has done little else. Father has failed to comply with the
requirements that would enable the children to be returned to him. We hold, as a matter
of law, that the evidence does not preponderate against the trial court’s finding of clear
and convincing evidence that father failed to substantially comply with the permanency
plan.

                                           E.

       The trial court held that L.M.H. was the victim of severe child abuse by father.
The court found clear and convincing evidence of severe child abuse based upon the
following:

             One side says [abuse] happened; the other side says it did not.
             These children have independently and at different times
             described the same events to their therapist and, on occasion,
             spontaneously to their foster mother. They demonstrate
             symptoms of [PTSD]. Those symptoms improved when they
             stopped having contact with [father].            Their behavior
             improved . . . —that means something. [Father] completely
             denied any physical abuse ever to any of his children. [DCS]
             and this Court have documented [father’s] history of
             inappropriate physical discipline to his older children, his
             admission of physical and emotional abuse to those children,
             and his statement that he would kill himself if he had to
             continue caring for them. The Court believes the statements
             of the children and finds that [father’s] testimony was not
             credible. [Father] hurt these children; he is a severe abuser.

The court concluded that father committed severe child abuse against L.M.H. as defined
in Tenn. Code Ann. §§ 37-1-102(b)(22)(B) and 37-1-102(b)(22)(C).


                                           F.

      When a parent has committed severe child abuse as defined by Tenn. Code Ann. §
37-1-102, the court may terminate the parent’s rights. Tenn. Code Ann. § 36-1-
113(g)(4). Severe child abuse is defined, in pertinent part, as follows:

             (B) Specific brutality, abuse or neglect towards a child that in
             the opinion of qualified experts has caused or will reasonably
                                          - 12 -
             be expected to produce severe psychosis, severe neurotic
             disorder, severe depression, severe developmental delays or
             intellectual disability, or severe impairment of the child’s
             ability to function adequately in the child’s environment, and
             the knowing failure to protect a child from such conduct;

             (C) The commission of any act towards the child prohibited
             by § 39-13-309, §§ 39-13-502 -- 39-13-504, § 39-13-515, §
             39-13-522, § 39-13-302, § 39-15-402, or § 39-17-1005 or the
             knowing failure to protect the child from the commission of
             any such act towards the child[.]

Tenn. Code Ann. § 37-1-102(b)(22). The trial court found severe child abuse under both
of these definitions.

                                           G.

       On appeal, DCS concedes that the trial court did not make specific findings with
respect to its finding of severe child abuse as defined in Tenn. Code Ann. § 37-1-
102(b)(22)(C). DCS acknowledges that “the trial court’s termination order does not
reference the specific criminal statute [f]ather violated [and] will not defend this
particular finding of severe abuse on appeal.”

       As noted by DCS, the trial court’s order fails to specify the facts supporting a
finding of severe child abuse under that definition as required by Tenn. Code Ann. § 36-
1-113(k). We modify the trial court’s order to delete termination of father’s rights based
upon severe child abuse as defined by Tenn. Code Ann. § 37-1-102(b)(22)(C).

                                           H.

       With respect to severe abuse as defined in Tenn. Code Ann. § 37-1-102(b)(22)(B),
father argues that there is insufficient evidence to support a finding that he committed
acts of brutality, abuse, or neglect or failed to protect the children. He claims that the
therapist “can’t say exactly when the children began experiencing trauma . . . .” Father’s
argument is unpersuasive. The fact that the therapist cannot pinpoint the exact time when
L.M.H. started to experience trauma is not dispositive. It is not necessary to say exactly
when the trauma started. The fact is that L.M.H. suffered trauma caused by father,
requiring him to undergo therapy.

       Father also claims that L.M.H. has a problem with lying. While the therapist
acknowledged that L.M.H. engaged in conduct problems including lying, she indicated
that the lies typically involved lying about stealing things. There was no concern by the
therapist that L.M.H. lied about the trauma and abuse that he suffered. With respect to
                                           - 13 -
the trauma that L.M.H. suffered, she noted that L.M.H. and his half-brother both reported
the same instances of abuse. There is no evidence to indicate that L.M.H. was untruthful
about father’s treatment of him.

       Father argues that L.M.H.’s statements about abuse are suspect because they were
made to the foster mother first. He claims that “there are serious and substantial doubts
about whether the statements made by [L.M.H.] were unduly influenced by the [f]oster
[m]other, who had a clear bias against reunification with the [f]ather.” Father provides
no evidence to support this claim. There is no evidence that the foster mother influenced
L.M.H. to fabricate statements about the abuse he suffered at the hands of father.
Furthermore, the trial court believed the statements of L.M.H. and found father’s
testimony to be not credible. Father’s arguments with respect to his challenge to the
veracity of the children’s testimony do not overcome the clear and convincing evidence
that L.M.H. suffered severe abuse at the hands of father.

        At trial, the parties stipulated that L.M.H.’s therapist is an expert in
psychotherapy. Based on therapy of L.M.H., she diagnosed him with PTSD. She
testified that she could point to specific acts by the father that caused the PTSD, including
physical abuse at the hands of father and witnessing sexual activity between the father
and mother. The therapist also asserted that studies show that children who suffer trauma
have potential long-term consequences, including “significant impairments in their ability
to hold down jobs, to maintain stable relationships.” The psychotherapy treatment
summary for L.M.H. provides the following prognosis:

              It is likely that [L.M.H.] will need therapy for a very long
              time to address the significant trauma symptoms he has
              exhibited. Although he is doing much better, he is still prone
              to regress when triggered by memories of past trauma. . . .
              Prognosis could be affected by the stability of his home
              environment and adoption issues. It is of the utmost
              importance for him to have consistency and structure in order
              to continue attaching and to build trusting relationships.

        This Court has made a finding of severe child abuse in cases where the victim has
suffered abuse similar to that in this case. In In re Devonta L.C., this Court reversed the
trial court’s dismissal of the severe abuse allegation when the trial court found that “the
only specific act of abuse that was proven was the ‘improper whipping’ by Mother, and
that this was not sufficient to rise to the level of severe child abuse.” No. E2012-00678-
COA-R3-PT, 2013 WL 395977, at *4 (Tenn. Ct. App., filed January 31, 2013). This
Court found that severe child abuse may be found “based not on specific, proven acts of
abuse, but rather on the ‘combined weight of the facts.’ ” Id. In that case, the child was
diagnosed with PTSD, and the court held that, even though the only specific act proven
was that mother whipped the child with a belt, the evidence showed that the child suffers
                                              - 14 -
from “severe disorders, depression, developmental delay/intellectual disability, and
impairment of the . . . ability to function in their environment.” Id. at *11. In In re
Caleb F.N.P., the court found sufficient evidence of severe child abuse based on the
therapist’s diagnosis of an adjustment disorder, mixed with anxiety and depression, and
PTSD caused by neglect and abuse. No. M2013-00209-COA-R3-PT, 2013 WL 5783141,
at *14 (Tenn. Ct. App., filed October 25, 2013).

       In this case, L.M.H. has been diagnosed with PTSD. He will need extended
therapy to address his trauma symptoms. His exposure to trauma has potential long term
consequences. Early in therapy, L.M.H. also scored abnormal “in all of the categories
including emotional symptoms, conduct problems, hyperactivity, peer problems, and
prosocial behavior.” It is clear that the abuse that L.M.H. suffered has had a significant
effect on him. This is sufficient evidence to establish that L.M.H. has been severely
abused by father as defined in Tenn. Code Ann. § 37-1-102(b)(22)(B). We hold, as a
matter of law, that the evidence does not preponderate against the trial court’s finding of
clear and convincing evidence supporting the allegation that L.M.H. is the victim of
severe child abuse by father as defined in Tenn. Code Ann. § 37-1-102(b)(22)(B).

                                             VI.

                                             A.

       Since we have found statutory grounds warranting the termination of father’s
parental rights, we now focus on whether termination is in the best interest of the
children. When considering the issue of “best interest,” we are guided by the following
statutory factors as set forth in Tenn. Code Ann. § 36-1-113(i), which provides:

              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 interests 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
                                       - 15 -
              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.

“The above list is not exhaustive[,] and there is no requirement that all of the factors must
be present before a trial court can determine that termination of parental rights is in a
child’s best interest.” State Dep’t of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502
(Tenn. Ct. App. 2007) (citing State Dep’t of Children’s Servs. v. P.M.T., No. E2006-
00057-COA-R3-PT, 2006 WL 2644373, at *9 (Tenn. Ct. App., filed Sept. 15, 2006)). In
addition, “[t]he child’s best interest must be viewed from the child’s, rather than the
parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005) (citing
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

                                              B.

       The trial court held that termination of father’s parental rights is in the best interest
of the children based upon the following:
                                            - 16 -
              [Father] has not made such an adjustment of circumstance,
              conduct, or conditions as to make it safe and in the children’s
              best interest to be in his home despite extraordinary efforts by
              available social services agencies for such duration of time
              that lasting adjustment does not reasonable appear possible.
              [Father] has not been allowed to maintain regular visitation or
              other contact with the children. The nature of the relationship
              established between [father] and the children may be assessed
              by the impact of his absence. The children haven’t seen him
              in a long time. . . . A change of caretakers and physical
              environment is likely to have a devastating effect on the
              children’s emotional, psychological and medical condition.
              [Father] has shown brutality, physical, emotional or
              psychological abuse toward [L.M.H.] and his half-brother in
              the way he whipped the children, hit them in the genial area,
              hit them with fly swatters and hangers, exposed them to
              sexual conduct and drug abuse. He has shown neglect toward
              [L.M.H. and K.K.F]. When [she] entered foster care[,
              K.K.F.’s] neck was twisted and her head misshapen because
              her therapy had not been done. The physical environment of
              [father’s] home, at the Hamilton Inn, is certainly not healthy
              or safe for any child. . . . [Father] failed to complete any
              alcohol and drug assessment and . . . failed to comply with
              drug screens. [Father’s] mental and/or emotional status
              would be detrimental to the children or prevent [him] from
              effectively providing safe and stable care and supervision for
              the children.      When he completed his mental health
              assessment, the clinician found him to be delusional. . . . His
              failure to acknowledge his lengthy history of physical abuse
              to children, his failure to take responsibility for the removal
              of these children, and his belief that the only thing preventing
              their return is his lack of housing all point to [father’s]
              unwillingness or inability to focus on his own conduct.

The court concluded that the children are entitled to a safe, secure, and loving home and
that termination of father’s parental rights is in the best interest of the children.

                                              C.

      The evidence does not preponderate against the trial court’s finding that
termination of father’s parental rights is in the best interest of the children. Father has not
made changes to his circumstances that would make it safe and in the best interest of the
                                             - 17 -
children to be in his home. He has done very minimal work in addressing the concerns of
the therapist and the concerns addressed in the permanency plan. DCS has made
extensive efforts to help father make lasting adjustments so that the children could return
to his home, but father has failed to take advantage of these resources. He has refused to
stay in contact with DCS, creating a barrier to their efforts to help him. Father has not
had regular visitation or contact with the children. While Father’s visitation has been
suspended, that is because of his own failure to address his issues and his treatment of the
children. Because father has not been able to regularly visit the children, he has failed to
establish a meaningful relationship with them. Changing the children’s caretaker would
likely have a negative emotional and psychological effect on the children. The children
have thrived in their current foster home. When father did have visitation with the
children, their behavior, especially L.M.H.’s, regressed after visitation with father.
Father has shown brutality toward the children. There is evidence that the children were
abused by father. This abuse and father’s treatment of the children has also caused
emotional and psychological issues with the children, including L.M.H.’s diagnosis of
PTSD. Father’s mental health assessment indicated that he is delusional. Thus, his
mental status could be detrimental to the children. We hold, as a matter of law, that
termination of father’s parental rights is in the best interest of the children.

                                           VII.

       The judgment of the trial court is modified to vacate the trial court’s holding that
father committed severe child abuse as defined by Tenn. Code Ann. § 37-1-
102(b)(22)(C). As modified, the trial court’s judgment is affirmed. The costs on appeal
are assessed to the appellant, J.M.F. This case is remanded for enforcement of the trial
court’s judgment, as modified, and for collection of costs assessed below.

                                            _______________________________
                                            CHARLES D. SUSANO, JR., JUDGE




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