                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                            Assigned on Briefs December 6, 2013

                                      IN RE J.B. JR. ET AL.

                     Appeal from the Juvenile Court for Blount County
                       No. 21861     William Terry Denton, Judge




              No. E2013-01677-COA-R3-PT-FILED-FEBRUARY 27, 2014


J.B. (“Mother”) appeals the termination of her rights to her minor children, J.B. Jr. and J.B.
(“the Children”).1 The Department of Children’s Services (“DCS”) was involved with the
family going back to 2006. In 2009, the Children were taken into emergency, protective
custody predicated on allegations of illegal drug use, failure to protect from sexual abuse, and
domestic violence. The Children were adjudicated dependent and neglected and placed in
foster care. A year later, DCS filed a petition to terminate Mother’s parental rights. It
alleged that Mother abandoned the Children and that she failed to resolve the issues that led
to their removal. Following a bench trial, the court found, by clear and convincing evidence,
that multiple grounds for termination exist and that termination is in the best interest of the
Children. On this appeal, Mother challenges only the best interest determination. We affirm.

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

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

John T. Sholly, Knoxville, Tennessee, for the appellant, J.B.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.




       1
         The record indicates that the Children’s biological father, J.W.B., voluntarily surrendered his
parental rights before the petition to terminate was filed. He is not a party to this appeal.
                                               OPINION

                                                     I.

       In 2006, the Children spent two days in the custody of DCS. Father was in jail and
Mother lived elsewhere.2 In May 2009, DCS again took the Children into protective custody
after both parents were found to be abusing drugs. In addition, DCS received a report that
the Children were being sexually abused by a homeless man whom Father had invited to
move in with the family. On the day the Children were removed, Mother left the home
before DCS arrived. Later, she fled to her home state of Oregon where she has remained
throughout these proceedings.      The Children, then ages five and six, were declared
dependent and neglected and entered foster care. They were placed together in a pre-
adoptive foster home in Dandridge.

        On March 8, 2012, DCS filed a petition seeking to terminate Mother’s parental rights.
The matter came on for trial on June 10, 2013. Mother was not present and her counsel
requested a continuance. Counsel asserted that Mother was unable to accomplish the tasks
required of her by DCS as a predicate to regaining custody and could not attend the trial
because she resided in Oregon and had recently been released to probation in that state. The
trial court denied the motion. At the time of trial, the Children had been in foster care for
more than four years. Mother had spoken with them by telephone, but had not had physical
contact with them since 2009. The Children, then nine and ten, had remained in their same
foster home for over four years.

        DCS case worker Lisa Hatcher handled the Children’s case from the start. She was
the only witness to testify at trial. DCS developed an initial permanency plan for the
Children in June 2009. It required Mother to address domestic violence, alcohol, and drug
issues; provide a safe, stable home for the Children; obtain a legal source of income; resolve
pending legal issues; complete a mental health assessment and follow recommendations; and
maintain contact with DCS. Shortly after Mother returned to Oregon, she was arrested and
went to prison. She was incarcerated from July 2009 through April 2010 before being
released on parole. In September 2010, DCS requested a study of Mother’s home which was
denied because Mother failed to cooperate with the efforts of the Oregon authorities. Mother
served several brief stints in the county jail for parole violations and was most recently
released in June 2012. She was not incarcerated at any time during the four months prior to
the filing of the termination petition. In addition to Ms. Hatcher’s testimony, the court
received evidence in the form of 36 exhibits. The exhibits largely comprised the case file and



       2
           The record suggests that Mother lived in Montana at the time.

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included the protective custody order, the permanency plan and its multiple revised forms,
and affidavits of reasonable efforts by DCS.

        At the close of the proof, the trial court found, by clear and convincing evidence, that
grounds for terminating Mother’s rights exist. Specifically, the court found that DCS had
proven abandonment by willful failure to visit, willful failure to support, and failure to
provide a suitable home; persistence of the conditions that brought the Children into state
custody; and substantial noncompliance with the terms of the permanency plan. The court
concluded that it was “in the best interest of these children that the relationship of parent and
child, between [the Children], and their mother . . . , be terminated and the children be made
available for adoption.” Mother timely filed a notice of appeal.

                                               II.

       Mother presents the following issues for our review as taken verbatim from her brief:

              1. Were the testimony and exhibits presented at trial sufficient
              to prove by clear and convincing evidence that the termination
              of Mother’s parental rights is in the best interest of the
              Children?

              2. Did the trial court explicitly state at trial any specific factors
              that support its decision that the termination of Mother’s
              parental rights is in the best interest of the Children?

              3. Did the Court’s opinion stated at the conclusion of the trial,
              or the Final Order, indicate that the Court considered such
              factors?

                                              III.

       With respect to parental termination cases, this Court has observed:

              It is well established that parents have a fundamental right to the
              care, custody, and control of their children. While parental rights
              are superior to the claims of other persons and the government,
              they are not absolute, and they may be terminated upon
              appropriate statutory grounds. A parent’s rights may be
              terminated only upon “(1) [a] finding by the court by clear and
              convincing evidence that the grounds for termination of parental

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              or guardianship rights have been established; and (2) [t]hat
              termination of the parent’s or guardian’s rights is in the best
              interest[] of the child.” Both of these elements must be
              established by clear and convincing evidence. Evidence
              satisfying the clear and convincing evidence standard establishes
              that the truth of the facts asserted is highly probable, and
              eliminates any serious or substantial doubt about the correctness
              of the conclusions drawn from the evidence.

In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 at *11-12 (Tenn. Ct. App.
E.S., filed Oct. 4, 2011) (citations omitted). On our review, this Court has a duty 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
against those findings. Id.; Tenn. R. App. P. 13(d). Great weight is accorded the trial court’s
determinations of witness credibility, which court findings will not be disturbed 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 (Tenn. 2002).

                                              IV.

       Taken together, the issues raised by Mother essentially challenge the sufficiency of
the evidence relied upon by the court to support its termination order. She asserts that the
limited testimony and exhibits at trial do not rise to the required level of “clear and
convincing” evidence. In a related argument, Mother contends that the termination order
cannot stand because the trial court made no findings, explicit or implicit, to indicate that it
even considered, much less applied, the statutory “best interest” factors in making its ruling.

       Again, we are mindful that, before terminating a parent’s rights, a court must
determine that two things have been clearly and convincingly proven – “not only that
statutory grounds exist but also that termination is in the child’s best interest.” In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)(citing Tenn. Code Ann. § 36-1-113(c)). As we
have already noted, Mother does not dispute that grounds for termination were established.
Nevertheless, we have considered the evidence pertaining to grounds for termination. We
hold that the evidence does not preponderate against the trial court’s findings, said to be
made by clear and convincing evidence, of multiple grounds for abandonment. See In re
Arteria H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010).



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       In considering the issue of “best interest,” we are guided by the following statutory
factors set forth in Tenn. Code Ann. § 36-1-113(i)(Supp. 2013). That section 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 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;




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                 (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 Dep’t of Children’s Servs. v. P.M.T., No. E2006-00057-COA-R3-PT,
2006 WL 2644373, at *9 (Tenn. Ct. App. Sept. 15, 2006)).

       Mother points out, correctly, that the trial court did not identify the specific statutory
factors relied upon by the court as support for the proposition that termination is in the best
interest of the Children. Our review of the record, however, leads us to conclude that, en
route to its decision, the court properly considered the evidence in light of the applicable
factors. In its termination order, the trial court set forth the following “findings of fact”:

                 FSW 3 Hatcher testified that [Mother] completed two alcohol and
                 drug assessments during this case and was recommended to
                 complete an intensive outpatient drug rehabilitation program.
                 [Mother] was in prison in Oregon for a time period and enrolled
                 in such a program through the prison, however, voluntarily left
                 . . . prior to completion and to date has failed to complete an
                 intensive outpatient drug rehabilitation program. FSW Hatcher
                 testified that [Mother] also completed two mental health
                 assessments during this case which recommended that she
                 receive[] mental health counseling. [Mother] never complied
                 with the counseling recommendation and she never completed
                 the domestic violence classes or the non-offender classes.
                 [Mother] was in and out of jail and/or prison in Oregon during
                 the majority of this case. FSW Hatcher testified that she made
                 numerous efforts to assist [Mother] in completing her
                 permanency plan . . . . Sometime in the summer of 2012



       3
           “Family Service Worker.”

                                                -6-
              [Mother] was charged with a violation of probation resulting
              from a failed drug screen.

              FSW Hatcher testified that shortly after [Mother] moved to
              Oregon in 2009 she was arrested and remained incarcerated until
              April 2010 when she was released on parole. FSW Hatcher
              requested a home study of [Mother’s] home in September 2010
              . . . . The State of Oregon denied the placement request citing
              [Mother’s] failure to cooperate [that] prevented them from
              completing the home study.

              FSW Hatcher testified that [Mother] has not visited the children
              . . . since they came into DCS custody in May 2009. Shortly
              after the children were removed into DCS custody [Mother] fled
              to . . . Oregon and has remained there since that time.

(Footnote added.)

       In specifically addressing the question of the Children’s best interest, the trial court
further stated:

              DCS must also prove that it is in the best interest of the children
              for [Mother’s] rights to be terminated. The non-exhaustive list
              of factors that the court may consider are codified in T.C.A. §
              36-1-113(i). The Court finds that mother has failed to
              demonstrate any interest or skill in parenting [the] children. The
              children have been cared for by the current foster parents since
              their removal in 2009 and a change of caretakers and physical
              environment would likely inflict the same trauma as the removal
              of [ ] children from a biological family. The foster parents want
              to adopt the children.

              Finally, mother has failed to show any concern for these
              children at any time during the children’s stay in state’s custody,
              including appearing for the trial. . . . The court specifically finds
              by clear and convincing evidence that it is in the best interest of
              [the Children] for their mother’s parental rights to be terminated.

       The evidence does not preponderate against the trial court’s findings. Most
significantly, the evidence does not preponderate against the trial court’s determination that

                                               -7-
there is clear and convincing evidence that the Children’s interest is best served by
permanently severing Mother’s ties to them. In summary, the proof supports the trial court’s
overall assessment that Mother failed to show any real interest in or concern for the Children
throughout this entire case. In the four years since they were placed in the custody of DCS
and foster care, Mother did not once visit or provide child support. She made no meaningful
progress toward completing the steps necessary to regain custody. In all that time, Mother
failed to obtain recommended treatment for her drug problem. This failure to act indicates
that she has made no lasting change to her circumstances or conditions. Even after the
petition was pending, Mother’s drug use continued, indicating that no change in this regard
was imminent. Further, Mother did not cooperate with Oregon authorities so that a home
study could be made as part of DCS’s effort to assess and assist Mother’s ability to properly
parent the Children and provide them with a safe, suitable place to live. Throughout these
proceedings, Mother was in another state while the Children lingered in the uncertainty of
foster care.

                                               C.

        Lastly, we address the sufficiency of the trial court’s findings in support of its best
interest determination. It is clear to us that, as often occurs in parental termination cases, the
trial court’s findings regarding the existence of grounds for termination overlap with its best
interest determination. Stated differently, much of the evidence and findings establishing
grounds for termination also apply to the court’s consideration of the Children’s best interest.
Thus, for example, in support of its finding of persistence of conditions, the trial court found
that Mother was abusing drugs at the time of the Children’s removal, had not obtained
treatment for her drug problem since the Children’s removal, and continued to abuse drugs,
as evidenced by a probation violation for a failed drug screen as recently as 2012. These
same findings, in our view, are relevant to a consideration of certain statutory best interest
factors, to wit: (1) “whether the parent . . . has made such an adjustment of circumstance,
conduct, or conditions as to make it safe” for the child to be in the parent’s home; (2)
“whether the parent . . . 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
appear reasonably possible”; and (3) “. . . whether there is such use of alcohol or controlled
substances as may render the parent . . . consistently unable to care for the child in a safe and
stable manner.” See Tenn. Code Ann. § 36-1-113(i)(1), (2) and (7). Similarly, we conclude
that the court’s finding that Mother abandoned the Children by her failure to visit and support
them for over four years is relevant to those best interest factors that consider (1) “whether
the parent . . . has maintained regular visitation or other contact with the child”; (2) “whether
a meaningful relationship has otherwise been established between the parent . . . and the
child”; and (3) “whether the parent . . . has paid child support . . . .” See Tenn. Code Ann.
§ 36-1-113 (3), (4), and (9).

                                               -8-
        In summary, the trial court explicitly referenced the statutory best interest factors in
its termination order. Its factual findings indicate that it considered the evidence in light of
these relevant factors, among other considerations, in concluding that termination of
Mother’s rights best serves the Children’s interest. Perhaps most significantly, the trial court
observed that Mother fled the state without knowing what would become of the Children and
never returned. Viewing the best interest issue from the Children’s perspective, as we must,
we conclude that this fact alone weighs in favor of terminating Mother’s rights and allowing
the Children an opportunity to achieve permanency in their lives. We reject Mother’s
arguments to the contrary.

                                              V.

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




                                      __________________________________________
                                      CHARLES D. SUSANO, JR., PRESIDING JUDGE




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