                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 4, 2011 Session

                                    IN RE NOEL B.F.

              THE DEPARTMENT OF CHILDREN’S SERVICES
                               v.
                           VEDA L.M.

                 Appeal from the Juvenile Court of Davidson County
                  No. PT 121799 Carlton M. Lewis, Special Judge


                No. M2010-02343-COA-R3-PT - Filed August 16, 2011


This is a parental termination case. The appellant mother has a history of serious mental
illness and persistent difficulties in managing her mental illness, resulting in multiple
hospitalizations and incarcerations. The Tennessee Department of Children’s Services took
custody of the child immediately following her birth. After the guardian ad litem and the
Department of Children’s Services filed petitions to terminate the mother’s parental rights,
the child’s aunt filed an intervening petition for termination of the mother’s parental rights
and for custody. The trial court terminated the mother’s parental rights and did not grant the
aunt’s intervening petition for custody. The aunt did not appeal. The mother appeals,
arguing that the trial court’s decision to allow the child to remain with the foster parents,
instead of placing the child with the aunt was not in the child’s best interest. We affirm.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter and Joshua Davis Baker, Assistant
Attorney General, for the Petitioner/Appellee, State of Tennessee, Department of Children’s
Services.

Sheryl Guinn, Nashville, Tennessee, for Respondent/Appellant, Veda L.M.

Stephen Mills, Nashville, Tennessee, Guardian Ad Litem.
                                              OPINION

                                F ACTS AND P ROCEEDINGS B ELOW

Defendant/Appellant Veda L.M. (“Mother”), originally from Illinois, has a long history of
severe mental illness. The onset of Mother’s mental illness began in Illinois, when she was
in her mid-twenties. As her mental condition worsened, between 2002 and 2005, Mother was
hospitalized four times in Illinois. She was placed on medication to control her mental
illness and qualified for disability benefits because of her mental illness.

Mother met Respondent Nathaniel J. F. (“Father”) while both were in treatment for mental
illness. In 2008, Mother and Father moved to Nashville, Tennessee; Father had previously
lived in Tennessee. Mother and Father never married.

Upon relocating to Tennessee, Mother discovered that she was pregnant. Shortly after that,
she stopped taking the medication that controlled her mental illness because she was fearful
that the medication would harm her child. After that, Mother’s mental condition deteriorated
precipitously. In June 2009, when Mother was about 36 weeks into her pregnancy, family
members became so alarmed at her behavior that she was involuntarily hospitalized. When
police officers arrived to take Mother to the hospital, she was living alone in a dirty
apartment. She became agitated and attempted to fight the police officers. She exhibited
mania, dazed periods, “phase out” or losing track of her thoughts, and “word salad,” that is,
stringing together random words and phrases into a sentence that makes no sense.1 Mother
was diagnosed with bipolar I disorder, and severe manic episodes with psychotic features.
She was prescribed medication to control her symptoms.

After that, Mother continued to experience difficulties. On July 14, 2009, Mother arrived
at the hospital for the scheduled caesarian section birth of her baby. After exhibiting
agitation, irritability, racing thoughts and paranoia, she was transferred to the psychiatric unit
of the hospital. After Mother’s daughter Noel was delivered, the Tennessee Department of
Children’s Services (“DCS”) took the child into protective custody because Mother was
incapable of caring for her. The child was found to be dependent and neglected and placed
in foster care. A guardian ad litem was appointed.




1
 For example, Mother stated that the “Octomom” was trying to reproduce the birth based on her own personal
vendetta.

                                                   -2-
Despite taking medication to control her mental illness, Mother continued to exhibit severe
symptoms. She had delusions,2 slowed psychomotor activity, continued symptoms of bipolar
I disorder, could sleep for only two hours at a time, and engaged in suicidal gestures such as
drinking household cleaning substances.

In September 2009, DCS entered into a permanency plan for Noel. Mother refused to sign
the permanency plan, but DCS reviewed the plan with her. The plan required Mother to find
permanent housing, have supervised visitation with Noel, develop a network of support, be
mentally and financially able to provide for the child, attend all of the child’s medical
appointments, complete a mental health evaluation, comply with the resulting
recommendations, and pay child support. Subsequently, the permanency plan was revised
to require Mother to participate in domestic violence counseling and a mental health group.

In the ensuing months, Mother was at times noncompliant with her medication and continued
to struggle with her mental illness. Her speech remained disorganized and tangential,3 she
was not sleeping and refused to eat, and she was at times psychotic and delusional, 4 or
violent. During this time, she was intermittently involuntarily hospitalized or incarcerated
for incidents arising from her mental illness.5 There were also incidents of domestic violence
with Father.

When she was not hospitalized or incarcerated, Mother’s limited supervised visitation with
infant daughter Noel was problematic. During visits, Mother at times appeared drowsy or
would “phase out,” and at other times she appeared agitated. She made inappropriate
comments and randomly began singing. On two occasions, Mother almost dropped the baby
while sitting with her on the floor. Mother had inappropriate expectations of the infant6 and
became frustrated when the child cried.




2
It was reported that Mother stated that she believed that President Barack Obama and former President Bill
Clinton would be coming to get her.
3
    “Tangential” speech means the speaker goes off on tangents.
4
    Mother was religiously preoccupied and had delusions that Oprah Winfrey was after her.
5
 In one incident, Mother broke her forearm when she attacked two female staffers for no apparent reason.
In another incident, Mother was incarcerated after she said the word “bomb” in a federal building.
6
 Mother wanted the infant to say “mother” and “father” instead of “mama” or “dada.” She would take the
child’s pacifier because she wanted the child to cry to make her vocal cords strong.

                                                     -3-
In February 2010, the guardian ad litem filed a petition in the Juvenile Court of Davidson
County, Tennessee, to terminate the parental rights of both Mother and Father. In July 2010,
DCS filed an intervening petition to terminate the parental rights of Mother and Father.
Shortly after DCS filed its petition, Father surrendered his parental rights.

As grounds for termination of Mother’s parental rights, the DCS petition alleged, inter alia,
willful failure to support, conduct prior to incarceration that exhibited a wanton disregard for
the welfare of the child, substantial non-compliance with the permanency plan, mental
incompetence, and persistent conditions.

On August 19, 2010, Mother’s sister, Monica V. M. (“Aunt”), filed an intervening petition,
seeking to terminate Mother’s parental rights and obtain custody of the child. In her petition,
Aunt claimed that Mother consented to an award of custody of the child to Aunt.7 In
response, DCS sought dismissal of Aunt’s petition on the grounds that Aunt lacked standing
to file such a petition because she had not been caring for the child at issue, pursuant to
T.C.A. § 36-1-113.

The trial court held a hearing on all of the pending petitions on the termination of Mother’s
parental rights, over the course of two days, August 31 and September 9, 2010. Father’s
parental rights were no longer at issue because he had surrendered his parental rights. As to
Mother’s parental rights, the trial court heard testimony from a variety of witnesses,
including a psychologist who evaluated Mother, a social worker and psychotherapist who
worked with Mother, the DCS case manager, a witness who supervised Mother’s visitation
with Noel, the child’s foster mother, Mother, and finally Aunt.

The licensed psychologist, Dr. Janie Berryman (“Dr. Berryman”), testified that, at the request
of DCS, she did an in-depth psychological evaluation of Mother by interviewing Mother,
several DCS case workers, Mother’s therapist from a mental health facility, observing
Mother’s interaction with Noel, and reviewing Mother’s history of violent behavior, arrests,
hospital admissions and frequent non-compliance with her medication regime. She
diagnosed Mother as bipolar I, and noted the consistent reports of psychotic behavior and
psychotic episodes with psychotic delusions. Dr. Berryman described Mother’s periods of
stability as “short-lived” because she was so frequently out of compliance with her
medication. Dr. Berryman opined that Mother was not capable of caring for a child on her
own.


7
 Aunt’s petition states that “she refers to and incorporates herein each and every provision of Mother’s
Motion for Least Drastic Alternative filed on August 2, 2010.” The record does not include a copy of this
alleged motion.

                                                  -4-
The licensed clinical social worker and psychotherapist testified about Mother’s limited
ability to stay on her medication and the resulting hospitalizations and incarcerations.

The witness who facilitated the supervised visitation between Mother and Noel testified
about Mother’s many difficulties during her sporadic visitations with her child. Overall, the
witness felt that Mother had made little progress over the course of her visits with her child,
and that Mother was not capable of providing the child with a secure, safe environment. In
contrast, the witness observed that the child had a bond with her foster parents, and that the
foster parents took proper care of her.

The DCS case worker expressed her belief that it was in the child’s best interest to remain
with her foster family, and not be placed in Aunt’s custody. She testified that Aunt had told
her on two occasions that she had no interest in fostering or getting custody of the child.
Moreover, Aunt stated in September 2009 that, because of Mother’s lack of stability, the
child should be adopted by non-relatives. On another occasion, Aunt said she would be
unable to care for the child if something happened to Mother’s mother. The DCS case
worker noted that Aunt had visited the child only once in her entire life.

The child’s foster mother also testified, noting at the outset that Noel had resided with her
and her husband for fourteen months. She said that Noel was “doing wonderfully,” and that
they hope to adopt her. She also stated that Noel’s visits with Mother had a detrimental
effect on the child. After each visit, the foster mother said, “I have to sit up in the chair with
her [Noel] before she can go to sleep. She has to place her hand on my face, and she has to
make sure I’m not going anywhere.”

Mother testified as well. Mother said that she had no car, was residing in a hotel with Father,
and that their sole income was Mother’s $1046 per month in disability benefits. Mother
claimed that the hotel room was adequate housing for the child. Mother conceded that she
was not in compliance with the permanency plan, but was critical of DCS’s assistance to her
and attributed her noncompliance in part to postpartum depression. Mother also conceded
that she was arrested for several criminal offenses, including filing a false domestic violence
report against Father and an incident of vandalism at a gas station.

In her testimony, Mother admitted that she was not ready to care for Noel. However, she
expressed her desire that Noel be raised by Aunt, living in Chicago. Mother did not want the
child to remain in state custody, but wanted the child to know her grandparents, cousins, and
other family members. Mother said that Aunt was capable of caring for the child. Mother
acknowledged that she did not cooperate when Aunt and her own mother came to Tennessee
with the intention of bringing Noel back to Chicago with them, but explained that she was


                                               -5-
suffering from postpartum depression at the time. Mother conceded, however, that the foster
parents were taking good care of the child.

Finally, the trial court heard testimony from Aunt. Aunt said that she was employed by the
City of Chicago as a licensed certified paramedic. Aunt testified that she sought custody of
Noel because Mother was not able to raise her and said that she, Aunt, could give her a
stable, loving home. Aunt claimed that her previous statement that she did not want Noel
was the result of a misunderstanding with Mother and Father. She explained that her initial
hesitation in seeking custody of the child also came from a concern that Noel had a
communicable disease, and uncertainty about how such a disease would affect her other
children at home. Once it was determined that Noel did not have a communicable disease,
Aunt said, she changed her mind about seeking custody of Noel. Aunt testified that she is
a trained foster parent and noted that she had recently adopted her two grandchildren as the
result of a tragedy.

At the conclusion of Aunt’s testimony, the trial court took the case under advisement. On
September 24, 2010, the trial court entered its order terminating Mother’s parental rights.
It noted at the outset that the three termination petitions filed in the cause, by the guardian
ad litem, DCS, and Aunt, were consolidated for hearing.8 The trial court stated specifically
that its order granted the termination petitions filed by the guardian ad litem and by DCS.

The trial court’s order was comprehensive and included detailed findings of fact and
conclusions of law as to each ground for termination of Mother’s parental rights, and as to
the best interest of the child.

Pursuant to T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv), the trial court found that
Mother had abandoned the child by willful failure to visit, willful failure to support, and by
engaging in conduct prior to her incarceration that exhibited a wanton disregard for the
welfare of the child. The trial court cited, inter alia, Mother’s actions that caused her
incarceration, such as threatening to “blow up” the jail facility where she was visiting Father,
who was incarcerated for committing domestic assault on Mother.

The trial court also found that Mother had not substantially complied with her responsibilities
under the permanency plan, pursuant to T.C.A. § 36-1-113(g)(2). The trial court made

8
 During the hearing, the trial court referred to having “dismissed” Aunt’s intervening petition to terminate
Mother’s parental rights for lack of standing, while retaining the portion of Aunt’s petition that sought
custody of the child. The appellate record, under the auspices of then-Davidson County Juvenile Court Clerk
Vic Lineweaver, includes no such order. Regardless, the trial court’s final order made it clear that the trial
court granted the petitions of the GAL and DCS, but not Aunt.

                                                     -6-
detailed findings on Mother’s responsibilities under the plan, found that the requirements
were reasonable, and set forth DCS’s reasonable efforts to assist her in fulfilling her
responsibilities. Despite DCS assistance, the trial court found, Mother failed to maintain
appropriate housing, failed to develop a positive network of family, friends, and community
partners to assist her in caring for the child, failed to follow the recommendations from her
parenting assessment, failed to maintain consistent compliance with her therapy and
medication management, and failed to follow the discharge instructions following her
multiple involuntary admissions for mental health treatment.

Pursuant to T.C.A. § 36-1-113(g)(3), the trial court found that Noel had been removed from
Mother’s care more than six months, that the conditions that led to the child’s removal still
existed and were unlikely to be remedied at an early date, and that continuation of the
parent/child relationship greatly diminished Noel’s chances of integrating into a safe, stable,
permanent home. The trial court found that the conditions that led to the removal of the child
from Mother’s custody were Mother’s ongoing mental incompetence and mental instability,
and her resulting inability to care for her child. Based on the trial testimony, the trial court
detailed Mother’s inability to care for the child, as demonstrated in her supervised visits.

Under T.C.A. § 36-1-113(g)(8), the trial court found that the evidence showed that Mother
was mentally incompetent to care for the child. Outlining the detailed testimony on Dr.
Berryman’s evaluation and the many incidents of Mother’s odd behavior, delusions,
agitation, violent outbursts, paranoia, suicidal gestures, inability to maintain a medication
regime, and recurrent hospitalizations, the trial court found that Mother was so mentally
impaired that she was unable to care for her daughter.

Pursuant to T.C.A. § 36-1-113(i), the trial court found that termination of Mother’s parental
rights was in the best interest of the child. It found that Mother’s continued mental instability
and her unavailability due to frequent hospitalizations and incarcerations had resulted in no
meaningful relationship between Mother and Noel. It also found that the child had
developed a strong bond with her foster family, that she received good care from the foster
family, and that the foster parents hoped to adopt Noel.

Overall, the trial court found clear and convincing evidence to support the grounds for
termination of Mother’s parental rights, and clear and convincing evidence that such
termination was in the child’s best interest. It ordered the termination of Mother’s parental




                                               -7-
rights and awarded custody and guardianship of the child to DCS, with the right to place the
child for adoption and consent to such adoption.9 Mother now appeals.

                         ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

In this appeal, Mother does not dispute that grounds for termination of her parental rights
were established. Rather, she asserts that the trial court erred in not awarding custody of the
child to Aunt, as a less drastic alternative to awarding custody to DCS or the State of
Tennessee. Aunt, it should be noted, does not appeal the trial court’s decision.

Because of the profound consequences of a decision to terminate parental rights, courts apply
a higher standard of proof. Therefore, the elements required for termination of parental
rights must be proven by clear and convincing evidence. T.C.A. § 36-1-113(g)(8)(B) (2010);
In re Adoption of A.M.H., 215 S.W.3d 498, 808 (Tenn. 2007); In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002). This heightened burden of proof in parental termination cases
minimizes the risk of erroneous decisions. See In re M. W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Evidence that meets the clear and convincing 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 Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005) (citations omitted). “It produces in a fact-
finder’s mind a firm belief or conviction regarding the truth of the facts sought to be
established.” Id. (citations omitted); see also In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct.
App. 2002); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001); In re C.W.W., 37
S.W.3d 467, 474 (Tenn. Ct. App. 2000).

In light of the clear and convincing standard of proof, a reviewing court must “distinguish
between the specific facts found by the trial court and the combined weight of those facts.”
In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007) (citations omitted). When a
trial court has seen and heard witnesses, considerable deference must be accorded to the trial
court’s determinations as to the credibility of the witnesses. Seals v. England/Corsair
Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999). Using the standard under Rule
13(d) of the Tennessee Rules of Appellate Procedure, the trial court’s specific findings of
fact are first reviewed to determine whether they are supported by the preponderance of the
evidence; these facts are presumed to be correct unless the evidence preponderates against
them. T ENN. R. A PP. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91.
(Tenn. 1993). The appellate court then determines whether the combined weight of the facts,


9
 While the trial court’s order did not explicitly deny Aunt’s petition for custody, it indicated clearly that it
had considered Aunt’s petition and awarded custody to DCS, and thus implicitly denied Aunt’s petition.

                                                      -8-
as found by the trial court or as supported by the preponderance of the evidence, clearly and
convincingly establishes all of the elements required to terminate the biological parent’s
parental rights. In re Tiffany B., 228 S.W.3d at 156; In re S.M., 149 S.W.3d 632, 640
(Tenn. Ct. App. 2004). The trial court’s conclusions of law are reviewed de novo on the
record, affording them no presumption of correctness. Campbell v. Florida Steel Corp., 919
S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993); In Re
Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2436560, at *9 (Tenn. Ct. App. June
16, 2011); In re Tiffany B., 228 S.W.3d at 156.

                                                    A NALYSIS

                                          Grounds for Termination

On appeal, Mother admits that “the grounds for termination were proven and are not being
disputed in this appeal.” Nevertheless, because of the importance of the issues, this Court
has reviewed in detail the evidence in the record and the trial court’s extensive findings of
fact and conclusions of law on each ground the trial court found to be established. After
careful review of the trial court’s thorough opinion, we find clear and convincing evidence
in the record to support each ground for termination on which the trial court relies.
Therefore, the trial court’s decision on all grounds for termination is affirmed.

                                                   Best Interest

Mother’s sole argument on appeal is framed in terms of the best interest of the child. She
argues that the award of custody to DCS does not achieve permanency for the child, but
leaves her in foster care. Mother cites T.C.A. § 37-2-403(d) (2010) for the proposition that
placing the child with a family member, namely Aunt, is the “least drastic alternative” to the
custody of a parent, and is less drastic than leaving the child in State custody. Ultimately,
Mother appears to argue that placement with Aunt is in the best interest of Noel, and family
placement should be accorded weight as a factor in the trial court’s best interest analysis,
because the trial court is not limited to the factors listed in T.C.A. § 36-1-113(i).10 She


10
     The statute provides as follows:

          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
                                                                                               (continued...)

                                                         -9-
emphasizes Aunt’s trial testimony that she wants to take custody of Mother’s child, and is
capable of caring for her.

In response, DCS argues that T.C.A. § 37-2-403 is inapplicable to the facts of this case,
citing In re S.B., No. M1999-00140-COA-R3-CV, 2000 WL 575934 at *4 (Tenn. Ct. App.
May 12, 2010). DCS emphasizes the holding in In re S.B. that T.C.A. § 37-2-403 applies
only to the time period immediately after the child is removed from the biological parents,
and not is not applicable where, as here, “the child has been living in a foster home for an
extended period of time.” DCS also notes that, when Aunt was initially contacted by DCS
regarding custody of the child, Aunt told DCS that she had no interest in serving as the


10
     (...continued)
            parent or guardian;

           (2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable
           efforts by available social service 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 or
           controlled substances 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

T.C.A. §36-1-113(i) (2010).

                                                       -10-
child’s foster or custodial parent. Additionally, DCS cites In the Matter of Arteria H., 326
S.W.3d 167, 184 (Tenn. Ct. App. 2010) perm. app. den’d., for its holding that “the failure
to place a child with a relative is not grounds for reversing an order terminating a parent’s
parental rights.”

      Mother cites two statutes in support of her argument. Tennessee Code Annotated §
37-2-403(a)(1)(A) provides as follows:

        Within thirty (30) days of the date of foster care placement, an agency shall
        prepare a plan for each child in its foster care. Such plan shall include a goal
        for each child of:

        (i) Return of the child to parent;
        (ii) Permanent placement of the child with a fit and willing relative, or
        relatives of the child;
        (iii) Adoption, giving appropriate consideration to § 36-1-115(g) when
        applicable;
        (iv) Permanent guardianship; or
        (v) A planned permanent living arrangement.

T.C.A. § 37-2-403(a)(1)(A)(i-iv) (2010). T.C.A. § 37-2-403(d) (2010), also cited by
Mother, states that “[w]henever a child is removed from such child’s home and placed in
[DCS] custody, the department shall seek to place the child with a fit and willing relative if
such placement provides for the safety and is in the best interest of a child.”

Parenthetically, we note that it is doubtful whether Mother has standing to directly appeal the
trial court’s award of custody to DCS rather than to Aunt. The relief granted against Mother
was the termination of Mother’s parental rights. The award of custody to DCS follows
necessarily from the termination of her parental rights, but is not relief granted against
Mother. Rather, the trial court awards custody to DCS after the parent’s rights have been
terminated, so at the point that custody is awarded to DCS, the parent no longer has a legally
cognizable interest in the child.11 Thus, parental termination cases in which the actual award
of custody is appealed have generally involved a party-appellant who is not the biological
parent, but who sought custody of the child in the event the biological parent’s parental rights
were terminated. See, e.g., In re S.B., 2000 WL 575934, at *1.



11
 If the biological parent’s parental rights are not terminated or the termination is reversed on appeal, the
parent may not necessarily regain custody, but would then have a legally cognizable interest in the child.

                                                   -11-
In cases where the biological parent has questioned on appeal the trial court’s award of
custody after terminating the biological parent’s rights, the parent’s argument typically has
been framed as part of the elements that must be proven to terminate parental rights. For
example, this Court has considered several cases in which the biological parent argued that
DCS’s obligation to use “reasonable efforts” to assist the parent in regaining custody required
DCS to place the child in the custody of a family member. See In the Matter of Arteria H.,
326 S.W.3d at 184; In re Deashon A.C., No. E2009-01633-COA-R3-PT, 2010 WL 1241555,
at *8 (Tenn. Ct. App. Mar. 31, 2010); In re O.J.B., No. W2009-00782-COA-R3-PT, 2009
WL 3570901 at *9, (Tenn. Ct. App. Nov. 2, 2009); In the Matter of K.L.D.R., No. M2008-
00897-COA-R3-PT, 2009 WL 1138130 at *8 (Tenn. Ct. App. Apr. 27, 2009); In re S.B.,
2000 WL 575934 at *1.

In each of the cases cited above, the Court held that the issue of the placement of the child
with a relative should have been raised in the dependency and neglect proceedings, rather
than in termination proceedings, and that the failure to place the child with a family member
is not a basis to defeat a petition to terminate parental rights. See In the Matter of Arteria
H., 326 S.W.3d at 184; In re Deashon A.C., 2010 WL 1241555, at *8; In re O.J.B., 2009
WL 3570901, at *9; In the matter of K.L.D.R., 2009 WL 1138130, at *8. See also In re
J.D.L., No. M2009-00574-COA-R3-PT, 2009 WL 4407786, at *10 (Tenn. Ct. App. Dec. 2,
2009).

In this case, Mother does not argue that the failure to place Noel with Aunt after the child
was taken into protective custody amounted to a failure by DCS to use “reasonable efforts.”
This is perhaps out of recognition that, after Noel was taken into protective custody, DCS
spoke to Aunt about assuming custody of Noel, and Aunt told DCS representatives that she
had no interest in taking custody of the child. In prior cases where it has been argued that
DCS did not use reasonable efforts to place the child with a relative, this Court has observed
that, “a parent cannot be heard to complain when a relative who initially inquires about
custody then fails to take any further action, so that the relative’s lack of consideration for
placement was due to his or her own failure to act.” In re K.L.D.R., 2009 WL 1138130, at
*16 (citing In Re Jeremiah T., No. E2008-02099-COA-3-PT, 2009 WL 1162860 at *10
(Tenn. Ct. App. Apr. 30, 2009); In re O.J.B., 2009 WL 3570901, at *9 (quoting In re
Jeremiah T., 2009 WL 1162860, at *10).

In the instant case, Mother’s argument is posited in the context of the trial court’s “best
interest” analysis. Mother notes that, by the time of the termination hearing, Aunt had
decided to seek custody of Noel, and Mother argues that Aunt was in a good position to take
custody of the child. She argues that an appropriate relative placement is favored as a “less
drastic alternative” to non-relative foster care under T.C.A. §§ 37-2-403(a)(1)(A) and 37-2-


                                             -12-
403(d), quoted above, and comments that “the termination hearing is as good a time as any
to bring a less drastic alternative before the court.”

Mother’s counsel cites no caselaw in support of this argument. Indeed, this Court has
specifically held that the statutes on which Mother’s counsel relies are not applicable in
termination proceedings, and that by the time the court considers the termination of the
biological parent’s parental rights, it is in fact too late “to bring a less drastic alternative
before the court,” since the issue of relative placement is considered at the dependency and
neglect stage of the proceedings, not the termination proceedings. See, e.g., In re Deashon
A.C., 2010 WL 1241555, at *8; In the Matter of K.L.D.R., 2009 WL 1138130, at *8. While
In re S.B., discussed above, did not involve an appeal by a biological parent, its analysis of
the statutes on which Mother relies is instructive. Discussing Section 37-2-403(a)(1), the In
re S.B. Court stated: “The preference for placement with family, by the language of [T.C.A.
§37-2-403(a)(1)], applies at the time [DCS] prepares the plan for the child.” 2000 WL
575934, at *4. The appellate court noted that, by the time of the termination hearing, the
child at issue had been in the foster parents’ care for more than a year, “so that any
preference for a goal of family placement shortly after the removal would have no
application.” Id. As to Section 37-2-403(d), also cited by Mother in this case, the In re S.B.
Court found that it also applied immediately after removal from the parent’s home, and
further observed that there is nothing in that statute “to indicate that an ongoing placement
with a non-relative that is otherwise serving the child’s best interest must be ended if a family
member later seeks to adopt the child.” Id.

Thus, the statutes relied upon by Mother are neither applicable nor relevant in proceedings
to terminate the parental rights of a biological parent, as to either grounds for termination or
the best interest of the child. Apart from the applicability of the statutes, Mother’s counsel
fails to demonstrate how the issue of relative placement is relevant to the best interest
analysis. In considering best interest, the focus of the court must be on whether complete
severance of the child’s relationship with the biological parent is in the best interest of the
child.

Considering the best interest of the child at issue in this case, Noel, we find that the record
contains ample evidence to support the trial court’s finding on best interest. As Mother
acknowledged, the evidence shows that she was in “no position” to care for the child. The
evidence showed that even the sporadic visitation Mother had with Noel left the young child
unsettled and insecure. As to Aunt, as in In re S.B., no matter how virtuous and well-
meaning Aunt may be, we do not see how it would be in Noel’s best interest to end “an
ongoing placement with a non-relative that is otherwise serving the child’s best interest” in
favor of an award of custody to a family member who only visited Noel on one occasion.


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In re S.B., 2000 WL 575934, at *4. At the time of the termination hearing below, the child
was in a loving, stable home with foster parents who wish to adopt her, and termination of
Mother’s parental rights paves the way for the child to be adopted into a permanent home.
Thus, we find clear and convincing evidence to support the trial court’s finding on best
interest and the termination of Mother’s parental rights.

                                      C ONCLUSION

      The judgment of the trial court is affirmed. Costs on appeal are assessed against
Appellant Veda L.M., for which execution may issue if necessary.




                                                        ___________________________
                                                            HOLLY M. KIRBY, JUDGE




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