                          Order Staying Litigation filed 9-25-15
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                          Assigned on Briefs April 21, 2015

                           IN RE AMERICUS C., ET AL.
                     Appeal from the Juvenile Court of Clay County
                      No. D412014         James D. White, Judge
                      ______________________________________

                No. M2014-02493-COA-R3-PT – Filed September 30, 2015
                      ______________________________________

This appeal arises from the termination of parental rights to an adopted child. The
boyfriend of the adoptive mother physically and sexually abused the child. Upon a
petition filed by the Department of Children’s Services, the juvenile court found by clear
and convincing evidence that the adoptive mother had committed severe child abuse.
The juvenile court also found by clear and convincing evidence that termination was in
the child’s best interest. The adoptive mother appeals claiming that she was not the
perpetrator of the abuse and that she had not been given an opportunity to adjust her
circumstances. We affirm the termination of parental rights.

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

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Josh Hoeppner, Livingston, Tennessee, for the appellant, Tina C.

Herbert H. Slatery III, Attorney General and Reporter, and Rebekah A. Baker, Senior
Counsel, Office of Attorney General, for the appellee, Tennessee Department of
Children’s Services.


                                       OPINION

                      I. FACTS AND PROCEDURAL BACKGROUND

      On September 20, 2013, the Department of Children’s Services (“DCS”) took
custody of Americus C., age eight, and her two younger siblings, Montana C. and Latrell
C., ages seven and five, respectively.1 Earlier that day, staff at the children’s school came
to suspect the children were being abused. Upon examination, the school nurse found
Montana had a very large bruise covering her buttocks. The nurse would later testify that
she had “never seen [a bruise] that extensive on a child from side to side from top to
bottom . . . . It was the perfect shape of a paddle. I mean, you could tell it was a stick,
paddle, something [of] that sort.”

       Latrell had bruising on his buttocks and back. The school nurse stated, “[I]t’s
obvious that it’s very extensive bruising. I mean, one spanking, I don’t think would do
that. I think it would have to be repetitive to have that deep of bruising and that large of
bruising.” When school staff questioned the children separately, both Montana and
Latrell attributed their bruises to “the purple paddle.”

      A school resource officer transported Americus, Montana, and Latrell to the Clay
County Sheriff’s Office for further questioning where they were later joined by their
grandmother, Tina C. (“Mother”). Mother had adopted Americus and had legal custody
of Montana and Latrell. The children lived with Mother and her boyfriend, Dan
Newmeyer, who the children referred to as “Dad.”

       During her interview, Americus stated that she and her siblings had been hogtied.
The children were each able to demonstrate this by lying on their stomachs and placing
their hands behind their backs and lifting their feet up. Americus and her siblings had
been struck by Mr. Newmeyer. Americus also heard Mr. Newmeyer threaten to kill
Mother. Americus described Mr. Newmeyer as drinking every day and often smoking
marijuana.

       According to the child protective services case manager, during her interview,
Mother corroborated the children’s accounts. Mother knew that Mr. Newmeyer was
physically abusing the children and that he got drunk and beat the children on a daily
basis. She also admitted to spanking the children with paddles. Mother claimed to have
learned two months prior that Mr. Newmeyer had been tying up Latrell. Mother also
stated that Mr. Newmeyer had stabbed her with a screwdriver in the presence of the
children.

       The case manager also related that, during her interview, Mother expressed
concerns about Mr. Newmeyer sexually abusing both Americus and Montana. Mother
stated Mr. Newmeyer would constantly barge into the bathroom while Mother was giving
Americus a bath. During her interview, Americus reported seeing Mr. Newmeyer staring
at Montana’s “private parts” while she lay nude on her bed. Mother acknowledged that
Americus had made the same report to her.

1
  In this appeal, only the parental rights to Americus are at issue. We make reference to her younger
siblings only as necessary to provide context.

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       A visit to the children’s home on September 20 found the house, particularly
Latrell’s room, littered with cable or zip ties that had been fastened and cut. The school
resource officer and a detective also discovered paddles, one with the name “purple pal”
written on it.

        Subsequent forensic interviews of the children, which revealed further potential
instances of abuse, prompted another search of the home. On the follow up visit, officials
discovered an area underneath the back porch closed in on three sides with wire fencing
and a post with additional cable ties nailed to it. When asked if there was any evidence
that a child had been kept in that area, a detective with the sheriff’s office testified that he
could see drawings underneath the home that appeared to be those of a child.

       DCS took emergency custody of the children and ultimately placed them in foster
care. A pediatric nurse practitioner, with a subspecialty of child abuse pediatrics,
examined each of the children. The nurse practitioner reported several concerning skin
findings on Americus. When asked about some of her healing injuries, Americus
reported that Mr. Newmeyer had punched her, pushed her while she was on a bike, and
cut her with a knife.

       In addition to the physical injuries, Americus exhibited signs of emotional trauma,
recurring nightmares, difficulty sleeping, aggressive behavior, paranoia, and
hallucinations. She was diagnosed with post-traumatic stress disorder and hospitalized.
To address the PTSD, Americus underwent trauma-focused cognitive behavioral therapy,
including the preparation of a trauma narrative. Americus’s therapist described the
narrative as a story written by the patient that describes their most traumatic experience.
Americus’s story read, in part, as follows:

       Dan was sitting on the couch. Mom walked in. I thought, “why is she
       coming in here.” I felt sad. Dan said, “Pull your pants down.” I said
       “okay.” I thought, why is Dan doing this. I was worried he was going to
       hurt me. Mom said, “Listen to Dan.” I thought my mom was against me
       and I felt sad. I pulled my pants down and my underwear.

The story goes on to describe in detail her molestation by Mr. Newmeyer. The story also
records Mother’s presence and complicity. After the incident, Americus tells of Mother
visiting Americus’s room to explain that Mr. Newmeyer was punishing Americus for
playing with her sister. Mother also warned that, next time, the punishment would be
worse.

       On March 7, 2014, DCS filed a petition to terminate the parental rights of Mother
and the parents of Montana and Latrell in the Juvenile Court for Clay County, Tennessee.


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The court conducted a trial on August 20, 2014. Mother appeared through counsel but
was not present due to her incarceration stemming from the allegations of abuse. Only
DCS presented proof. Relative to terminating the parental rights of Mother, DCS
presented the testimony of the school nurse; the school resource officer; the detective
with the Clay County Sheriff’s office; a social services representative from Park Ridge
Valley Hospital; a case manager for Therapeutic Intervention; and two DCS employees, a
family services worker and the child protective services case manager. DCS also
presented the deposition testimony of the pediatric nurse practitioner who had examined
Americus.

       Based on the testimony and exhibits, the trial court terminated the parental rights
of Mother to Americus. As grounds, the court found clear and convincing evidence that
Mother had committed severe child abuse as defined by statute. The court made the
following findings relative to abuse:

      2.     The actions that constitute severe abuse are:

             a.     the sexual abuse and failure to protect from sexual abuse of
                    Americus [C.];

             b.     the sexual abuse and failure to protect from sexual abuse of
                    Montana [C.];

             c.     the physical abuse of all three children as evidenced by their
                    statements to others and the bruises upon the children;

             d.     the physical abuse of Montana [C.] and [] Latrell [C.] as
                    evidenced by their malnutrition;

             e.     the physical restraint of the children with zipties for lengthy
                    periods;

             f      the failure to protect the children from the physical abuse of
                    Dan Newmeyer (mother’s boyfriend); and

             g      the restraint of the children under the front porch of the
                    residence sometimes overnight.

The court also found clear and convincing evidence that termination of Mother’s parental
rights was in the best interest of Americus. In considering Americus’s best interest, the
court made the following additional findings:



                                            4
       1.      [Mother] has not made an adjustment of circumstances, conduct or
       conditions as to make it safe and in the child’s best interest to be returned to
       her home and it appears unlikely that she would be able to do so in the near
       future.

       2.     A change of caretaker and physical environment is likely to have a
       negative effect on the child’s emotional, psychological and/or medical
       condition.

       3.     Mental health professionals and caseworkers that have worked with
       the child have opined that it would never be safe for the child to be returned
       to her mother.

       4.     [Mother] has committed brutality and physical, sexual, emotional or
       psychological abuse or neglect toward the children in her household,
       including her own child, by subjecting them to physical torture, nutritional
       neglect, and by allowing her paramour to sexually and physically abuse the
       children.

       5.     The child needs to be released from the stigma of being a foster
       child.

       6.     The Court does not believe, despite the fact that the child is not
       currently placed in a pre-adoptive home, that the mother could ever
       convince the Court that she has reformed to such an extent that the child
       could ever be safely returned to her care.

       7.    The likelihood that mother will serve extensive time in incarceration
       due to her abuse of the children further makes it unlikely that the child
       could be returned in a timely manner and the permanence of the child
       should not be delayed pending the outcome of mother’s criminal charges.

                                       II. ANALYSIS

       Termination of parental rights is one of the most important decisions courts make.
As noted by the United States Supreme Court, “[f]ew consequences of judicial action are
so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S. 745, 787
(1982). Terminating parental rights has the legal effect of reducing the parent to the role
of a complete stranger and of “severing forever all legal rights and obligations of the
parent or guardian.” Tenn. Code Ann. § 36-1-113(l)(1) (Supp. 2013).




                                              5
        A parent has a fundamental right, based in both the federal and State constitutions,
to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putman v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996); In re Adoption of a Female Child, 896
S.W.2d 546, 547-48 (Tenn. 1995). While fundamental, this right is not absolute. The
State may interfere with parental rights, through judicial action, in some limited
circumstances. Santosky, 455 U.S. at 747; In re Angela E., 303 S.W.3d at 250.

        Our Legislature has identified those situations in which the State’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting
forth 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 parental rights may be
terminated only where a statutory ground exists. Tenn. Code Ann. § 36-1-113(c)(1);
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 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 a statutory ground for termination and that termination is in the
best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002). This heightened burden of proof is one of the safeguards required
by the fundamental rights involved. See Santosky, 455 U.S. at 769. The heightened
burden serves “to minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights.” In re Bernard T., 319
S.W.2d 586, 596 (Tenn. 2010). “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.” Id. at 596
(citations omitted). Unlike the preponderance of the evidence standard, “[e]vidence
satisfying the clear and convincing evidence 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).

       Appellate courts review the trial court’s findings of fact in termination
proceedings de novo on the record and accord these findings a presumption of correctness
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Bernard T.,
319 S.W.3d at 596; In re Angela E., 303 S.W.3d at 246. “In light of the heightened
burden of proof in [termination] proceedings . . . the reviewing court must then make its
own determination regarding whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, provide clear and convincing evidence
that supports all the elements of the termination claim.” In re Bernard T., 319 S.W.3d at
596-97.



                                             6
        On appeal, Mother raises two issues. She first argues the trial court erred in
terminating her parental rights upon the basis that she committed severe abuse when the
evidence showed that Mr. Newmeyer perpetrated the vast majority of the abuse. Mother
points out she was also a victim of Mr. Newmeyer’s abuse. For her second argument,
Mother contends that the trial court erred in finding that termination was in Americus’s
best interest. Mother claims that, because she was incarcerated for the duration of the
case, she had no opportunity to adjust her circumstances. Further she claims that
termination of her parental rights is premature because there is still time for her to adjust
her circumstances.

                            A. GROUNDS FOR TERMINATION

      The existence of only one statutory ground is sufficient to support a court’s
termination of parental rights. In re Angela E., 303 S.W.3d at 251. The commission of
“severe child abuse” is one such statutory ground. Tenn. Code Ann. § 36-1-113(g)(4).
“Severe child abuse” is defined as follows:

       (A)(i) The knowing exposure of a child to or the knowing failure to protect
       a child from abuse or neglect that is likely to cause serious bodily injury or
       death and the knowing use of force on a child that is likely to cause serious
       bodily injury or death;

       (ii) “Serious bodily injury” shall have the same meaning given in § 39-15-
       402(d).

       (B) Specific brutality, abuse or neglect towards a child that in the opinion
       of qualified experts has caused or will reasonably be expected to produce
       severe psychosis, severe neurotic disorder, severe depression, severe
       developmental delay 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.

Id. § 37-1-102(b)(21) (Supp. 2014) (emphasis added). “Serious bodily injury,” in turn, is
defined as including, but not limited to,

       second- or third-degree burns, a fracture of any bone, a concussion,
       subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema,
       brain contusion, injuries to the skin that involve severe bruising or the
       likelihood of permanent or protracted disfigurement, including those
       sustained by whipping children with objects.




                                             7
Id. § 39-15-402(d) (2012). In addition to bodily injury resulting in physical
manifestations, “severe child abuse” can include unlawful sexual contact with a child
under thirteen years of age or the knowing failure to protect the child from such unlawful
sexual contact. Id. §§ 39-13-504(A)(4) (2010), 37-1-102(b)(21) (2014).

       Mother concedes that Americus suffered severe abuse. She claims, however, that
because Mr. Newmeyer committed the abuse and she was also victimized, the court erred
in terminating her parental rights. According to Mother, “it cannot be proven by clear
and convincing evidence that she knowingly perpetrated said abuse upon the child.” We
find such an argument unavailable for two reasons. First, evidence in the record
established that Mother also abused the children by both paddling them and binding them
with cable ties.2 Second, the parent facing termination of her parental rights does not
have to have caused the abuse.

        The statutory definition of severe child abuse includes “the knowing failure to
protect a child from abuse or neglect that is likely to cause serious bodily injury.” Tenn.
Code Ann. § 37-1-102(b)(21)(A)(i)-(B); see In re R.C.P., No. M2003-01143-COA-R3-
PT, 2004 WL 1567122, at *6 (Tenn. Ct. App. July 13, 2004). The rationale behind the
rule is that “[p]arents have a duty to provide, and children have a corresponding right to
be provided with, a safe environment, free from abuse and neglect.” In re R.C.P., 2004
WL 1567122, at *6. As a result, “[p]arents who have not themselves severely abused
their own child may still be found to have committed severe child abuse if they
knowingly exposed the child to, or knowingly failed to protect the child from, conduct
constituting severe child abuse.” Id.; see also In re H.L.F., 297 S.W.3d 223, 235 (Tenn.
Ct. App. 2009).

       We have found a parent committed severe abuse even where there was no
evidence that the parent actively engaged in or witnessed the abuse while it was
occurring. In re H.L.F, 297 S.W.3d at 235. In re H.L.F. involved a father who sexually
abused his daughter. Id. The trial court found both parents had committed severe abuse
against the child based on the father’s sexual abuse and mother’s failure to protect her
child. Id. In affirming the trial court, we stated, “[A] reasonable person possessing the
information that Mother possessed could only have concluded that her [daughter] needed
to be protected.” Id. at 237.

      In this case, even ignoring the evidence and assuming for the sake of argument
that Mother committed no abuse herself, we find the evidence clear and convincing that
Mother committed severe abuse by her failure to protect Americus. Mother admitted in

2
 According to the detective who interviewed her, Mother claimed that the children would request that she
bind them because Mr. Newmeyer would do so too tightly. Mother also claimed that she would bind the
children with their hands in front of them, but she later conceded that she would also bind their hands
behind their back.

                                                   8
her interview that she knew that Mr. Newmeyer abused the children on an almost daily
basis. Just as in In re H.L.F., a reasonable person in Mother’s position would have
concluded that her children needed to be protected. Although she might have feared
Mr. Newmeyer’s reaction if she reported the abuse, Mother had opportunities to seek
protection for her children.3 The record also indicated that, only five days prior to the
school discovering the abuse, Mother had kicked Mr. Newmeyer out of the house.

                              B. BEST INTEREST OF AMERICUS

        The focus of the best interest analysis is on what is best for the child, not what is
best for the parent. In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005); White v.
Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004). In evaluating whether termination
of parental rights is in a child’s best interest, courts consider a list of non-exclusive
statutory factors. Tenn. Code Ann. § 36-1-113(i) (2010). Not every factor enumerated in
the statute applies to every case because the facts of each case can vary widely. See In re
Audrey S., 182 S.W.3d at 878.

        After considering the applicable statutory factors, the juvenile court determined
that it was in Americus’s best interest to terminate Mother’s parental rights. Mother
asserts that the trial court erred in its finding given that she was incarcerated for the
duration of the case and thus had no opportunity to adjust her circumstances. She also
claims that termination of her parental rights will do nothing to relieve Americus from the
stigma of foster care given that adoptive parents have not yet been identified for the child.
In effect, Mother argues that there is still time for her to make an adjustment in her
circumstances that would allow her to eventually parent Americus.

       We find both of Mother’s arguments unavailing. As for the first argument,
Mother looks at the best interest analysis from her perspective. As we have noted
previously, “[t]he child’s best interests must be viewed from the child’s, rather than the
parent’s, perspective.” Id. Although Mother may not be “irredeemable,” see White, 171
S.W.3d at 193, and in time an adjustment of her circumstances may be possible, the
record is clear that Americus suffered and suffers greatly from the abuse she endured.
Her therapist, an expert on child welfare, and a DCS social worker both testified that it
would never be safe for Americus to return to Mother.

      As for the second argument, “Tennessee law requires only that an adoption be
contemplated at some point in the future.” In re Audrey S., 182 S.W.3d at 879. Any
“stigma” associated with Americus’s stay in foster care will be far outweighed by the
opportunity for her to heal in a healthy and safe home.


3
  According to the detective who interviewed her, Mother reported that Mr. Newmeyer had moved out of
the house to return to Ohio on several occasions.

                                                 9
      The juvenile court correctly concluded that the applicable statutory factors
weighed heavily in favor of terminating Mother’s parental rights. Neither of the
considerations raised by Mother convinces us to the contrary.

                                 III. CONCLUSION

      We conclude that there is clear and convincing evidence of one statutory ground to
terminate Mother’s parental rights. We also conclude that there is clear and convincing
evidence that termination is in the best interest of Americus. Therefore, we affirm the
judgment of the juvenile court.

                                               _________________________________
                                               W. NEAL McBRAYER, JUDGE




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