                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      May 26, 2016 Session

                                 IN RE ADDISON E., ET AL.1

                     Appeal from the Juvenile Court for Knox County
                         No. 115116    Timothy E. Irwin, Judge


                  No. E2015-00721-COA-R3-PT-FILED-JUNE 30, 2016


This appeal involves the termination of a mother‟s parental rights to two minor children.
Following a bench trial, the trial court found that clear and convincing evidence existed
to support the termination of her rights on the statutory ground of severe child abuse.
The court further found that termination was in the best interest of the children. The
mother appeals. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, CHIEF JUDGE, and THOMAS R. FRIERSON, II, J., joined.

Anne Greer, Knoxville, Tennessee, for the appellant, Crystal P.

Jennifer S. Bjornstad, Knoxville, Tennessee, for the appellee, Charlotte R. T.

                                             OPINION

                                       I.      BACKGROUND

       Addison E. and Austin E. (collectively “the Children”) were born out-of-wedlock
to Crystal P. (“Mother”) and Thorton E. (“Father”) in November 2007 and October 2009,
respectively. Father is listed on each child‟s birth certificate. Mother and Father
(collectively “the Parents”) battled substance abuse issues for a number of years while
caring for the Children.


1
  This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
        The Tennessee Department of Children‟s Services (“DCS”) removed the Children
from Mother‟s care on March 3, 2010, based upon allegations of unstable housing,
substance abuse issues, and lack of income. The Children were later adjudicated as
dependent and neglected by agreed order, entered on May 26, 2010. The maternal
grandparents, Penny and Richard T., accepted legal and physical custody of the Children
at that time, thereby relieving DCS of custody. In August 2010, the court provided the
maternal grandparents with the discretion to allow the Parents to engage in unsupervised
visitation with the Children. The court also advised each parent that he or she could
regain custody of the Children by demonstrating six months of continued sobriety,
cooperation with substance abuse treatment, employment, stable housing, and consistent
and appropriate visitation.

       Mother was later charged with numerous crimes and placed on probation in 2012.
The record does not reflect whether Mother‟s visitation with the Children was affected by
her criminal activity. However, on June 5, 2013, she was arrested for driving under the
influence (“DUI”) while the Children were in the car. The next day, the paternal
grandmother, Charlotte T. (“Grandmother”), petitioned for and was awarded temporary
custody of the Children.2 Mother was later charged with violating her probation, failure
to appear, and evading arrest. She was incarcerated in Blount County from March 2014,
through July 2014, when she was released to a half-way house and placed on probation.

       On August 26, 2014, the court considered a petition filed by DCS in which DCS
requested a finding of severe child abuse. Citing Tennessee Code Annotated section 37-
1-102(b)(21)(A)(i),3 the court found by clear and convincing evidence that the Children
had been severely abused by Mother as evidenced by her driving while under the
influence with the Children in the car.

       On November 6, 2014, Grandmother sought termination of Mother‟s parental
rights to the Children. She alleged that termination was supported by the statutory
grounds of the persistence of conditions which led to removal and a prior finding of
severe child abuse as evidenced by the court‟s order, entered on March 24, 2015.4


2
  The court later awarded Grandmother full legal custody of the Children but also advised her to
accommodate Mother‟s right to supervised visitation.
3
  “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.”
4
  Grandmother also indicated an intention to file a petition to terminate Father‟s parental rights in the
event that he did not voluntarily surrender his rights. His rights are not at issue in this appeal.
                                                     -2-
        The hearing on the termination petition was held on April 1, 2015. Mother
testified that she was on probation for convictions of theft and evading arrest when she
was arrested for driving under the influence in June 2013. She served three months in jail
before her release in July 2014. She stated that she was arrested again in November 2014
for consuming alcohol while residing in a half-way house under the supervision of the
drug court program. She served approximately three weeks in jail before her release.

        She acknowledged her extensive history of substance abuse and claimed that she is
currently in treatment to address her addiction. She agreed that she had completed two
outpatient programs with little success but stated that she was compliant with the current
program. She provided that the current program required her to comply with the rules
and requirements of the drug court program, submit to drug screens on a twice weekly
basis, abide by a curfew, and maintain employment. She provided that she has not failed
a drug screen and that she has also maintained employment. She completed the first two
phases of the program and was released from the half-way house approximately two
months ago. She stated that she lives in an apartment in Alcoa with a roommate.

      Relative to the allegation of severe abuse, the following colloquy occurred:

      Q.     Back in June of 2013, [Grandmother] filed a petition for custody
      based upon you being arrested and being charged with DUI; is that correct?

      A.     Yes.

      Q.      We had a hearing on that in August of 2014 and you took the Fifth to
      all of the questions that were asked of you; is that correct?

      A.     Yes.

                                          ***

      Q.     Was it disposed of on [December 9, 2014], that charge, of you
      driving under the influence with the children in the car with you?

      A.     Was it what now?

      Q.     Disposed of at court. Did you make a plea?

      A.     Yes.

      Q.     What did you plead?
                                           -3-
       A.      I pleaded guilty, I guess.

       Q.     You pled guilty to DUI with the [C]hildren in the car with you; is
       that correct?

       A.      Yes.

       Q.     And that was the basis of the severe abuse finding against you in
       Juvenile Court; is that correct?

       A.      Yes.

                                            ***

       Q.    You pled to the DUI, and it was not alcohol that you had in your
       system, is that correct, it was substances that you didn‟t have prescriptions
       for?5

                                                ***

       Q.     With regard to the charges that you had, it was substances, pills and
       different things, that you had taken that you were being charged with; is
       that correct, not alcohol?

       A.      Right.

       Q.      Did you have prescriptions for any of those things?

       A.      No.

Mother later testified,

       I was clean up until pretty much right before I got my DUI. I wasn‟t clean,
       I was going to the Suboxone doctor, I was on Suboxone. And then really
       that DUI was just like, I think it was a four-day [Methadone] binge I went
       on while the kids were with their dad. I don‟t consider being on Suboxone
       really clean, but I was going to the Suboxone doctor.

5
  Defense counsel objected to this question on relevance grounds. The court overruled the objection and
allowed the line of questioning to continue.
                                                   -4-
       Relative to the Children, Mother testified that she enjoyed unsupervised visitation
with the Children while they were in the custody of the maternal grandparents. She
stated that she never petitioned to regain custody because her mother allowed the
Children to live with her for the year and half prior to her DUI arrest. She claimed that
Grandmother refused to recognize her right to supervised visitation and that she had not
been permitted to visit the Children since October 2014. She acknowledged that she had
not paid child support, despite her consistent employment. She explained that
Grandmother never asked for support and would not respond to her attempts at
communication.

       Grandmother testified that she and the Children reside in a four-bedroom home
with Father‟s oldest child. She expressed a desire to adopt the Children and asserted that
she was financially and physically able to care for them. She explained that she would
not have pursued termination if Mother had maintained her sobriety and not endangered
the Children by driving while intoxicated with them in the car. She acknowledged that
she had not maintained a relationship with the Children prior to Mother‟s DUI arrest.
She claimed that she tried to intervene but was unable to communicate with Father, who
“was just too high on drugs all the time.” She further stated that she was also caring for
his oldest child during that time.

      Grandmother testified that Addison exhibited behavioral issues and was
unprepared for kindergarten when she accepted custody of the Children. She stated that
Addison attends therapy and receives assistance from a tutor on a regular basis. She
claimed that both children are doing well in school.

        Grandmother conceded that she refused to cooperate with Mother‟s right to
visitation. She asserted that the Children were upset by Mother‟s inability to maintain
consistent visitation and that when visitation occurred, their behavior digressed in the
days following visitation. She believed their behavior was “a lot more steady” without
visitation and claimed that Addison‟s therapist advised against visitation.

       Following the hearing, the trial court found clear and convincing evidence to
support termination based upon the severe abuse of the Children as evidenced by
Mother‟s driving while under the influence with the Children in the car. The court also
found clear and convincing evidence that termination of Mother‟s parental rights was in
the best interest of the Children. This timely appeal followed.




                                           -5-
                                       II.     ISSUES

       We consolidate and restate the issues on appeal as follows:

       A.    Whether clear and convincing evidence supports the court‟s
       termination based upon a finding of severe child abuse pursuant to
       Tennessee Code Annotated section 36-1-113(g)(4).

       B.     Whether clear and convincing evidence supports the court‟s finding
       that termination was in the best interest of the Children pursuant to
       Tennessee Code Annotated section 36-1-113(i).

                             III.   STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person‟s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and „severing forever all legal rights and obligations‟ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “„[F]ew consequences of judicial action are so grave as the severance of
natural family ties.‟” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination of
the parent-child relationship. In re Drinnon, 776 S.W.2d at 97. 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 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.



                                             -6-
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child‟s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court‟s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder‟s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

       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 correctness.

In re Carrington H., -- S.W.3d --, No. M2014-00453-SC-R11-PT, 2016 WL 819593, at
*12 (Tenn. Jan. 29, 2016) (internal citations omitted).
                                            -7-
                                   IV.    DISCUSSION

                                           A.

       The trial court may terminate parental rights based upon a finding of severe child
abuse either as found “under any prior order of a court” or as “found by the court hearing
the petition to terminate parental rights.” Tenn. Code Ann. § 36-1-113(g)(4). “Severe
child abuse” is defined as:

      (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;

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

      (D) Knowingly allowing a child to be present within a structure where
      the act of creating methamphetamine, as that substance is identified in § 39-
      17-408(d)(2), is occurring;

Tenn. Code Ann. § 37-1-102(b)(21). In its order, dated March 24, 2015, the trial court
found that Mother committed severe child abuse as defined by Tennessee Code
Annotated section 37-1-102(21)(A)(i) as evidenced by her driving under the influence
with the Children in her car. Mother appealed the court‟s finding, and the matter was
pending at the time of the trial on the termination petition.

      Following the hearing on the termination petition, the court stated as follows:

                                           -8-
       Severe abuse, I mean, she severely abused [the Children] by putting them at
       risk for serious bodily harm or injury when she drove impaired with the
       [C]hildren in the car. And that‟s already been found by this court. Yes, it‟s
       on appeal and, yes, because the final order just got completed, it just now
       being considered on appeal, first by me and then by Fourth Circuit if I send
       it on. And the fact that that appeal could overturn that judgment could
       affect this order, but right now I know we have that ground.

Thereafter, the court issued a final order, entered on September 30, 2015, nunc pro tunc
as of April 1, 2015, which provided in pertinent part as follows:

       On June 5, 2013, the mother was arrested and charged with [DUI],
       Possession of a Legend Drug without prescription, and Reckless Driving
       (Disregard Safety of Persons or Property). On December 9, 2014, the
       mother pled guilty to [driving under the influence] on June 5, 2013, with
       the [C]hildren in the car. The remaining charges were dismissed. The
       mother voluntarily took methadone and benzodiazepines for which she did
       not have a prescription; the mother voluntarily drove with the [C]hildren in
       the vehicle under the influence of non-prescribed substances; the mother
       was under the influence while driving the vehicle; and being in an altered
       state exposed the [C]hildren to the risk of serious bodily injury or death.

                                           ***

       [Mother] has committed severe abuse by operating a vehicle while she was
       under the influence of non-prescribed medication with the [C]hildren in the
       car, exposing the [C]hildren to substantial risk of bodily injury or death.
       Said finding, based upon the testimony presented and further clarified by
       the [c]ourt at a motion hearing before the [c]ourt on September 15, 2015, is
       made independently of the previous severe abuse finding by the [c]ourt on
       August 26, 2014, that was on appeal to Fourth Circuit Court.

       Mother challenges the trial court‟s finding of severe child abuse for several
reasons. First, she claims that the court erroneously relied upon the prior court order that
was not final at the time of the hearing. Second, she asserts that the evidence presented is
insufficient to sustain an independent finding of severe child abuse and that the transcript
from the September 2015 motion hearing is not included in the record on appeal. Finally,
she argues that the court failed to identify the precise definition of severe child abuse
relied upon in terminating her parental rights. Grandmother responds that the record
supports the court‟s independent finding of severe child abuse.

                                            -9-
       While the oral pronouncement following the hearing indicates the court‟s reliance
upon the prior court order, the final order appealed from contains an independent finding
of severe child abuse based upon the evidence presented at the hearing. “A Court speaks
only through its written judgments, duly entered upon its minutes. Therefore, no oral
pronouncement is of any effect unless and until made a part of a written judgment duly
entered.” Sparkle Laundry & Cleaners, Inc. v. Kelton, 595 S.W.2d 88, 93 (Tenn. Ct.
App. 1979) (citations omitted); see also Morgan Keegan & Co. v. Smythe, 401 S.W.3d
595, 608 (Tenn. 2013) (citing In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001)
(“Trial courts, as a general matter, speak through their orders and judgments.”)). We
reject Mother‟s assertion that the court erroneously relied upon the prior court order.

        Moreover, a review of the record from the termination hearing reflects that Mother
admitted to driving while under the influence of prescription medication with the
Children in the car. She likewise admitted that she did not have a prescription for the
medication. Such behavior is sufficient to sustain a finding of severe child abuse by clear
and convincing evidence without consideration of any additional argument that may have
been submitted at a subsequent hearing. We agree that the court did not specifically
identify Tennessee Code Annotated section 37-1-102(b)(21)(A)(i) as the ground relied
upon at the hearing. However, the court indicated as such when it found that Mother
“committed severe abuse by operating a vehicle while she was under the influence of
non-prescribed medication with the [C]hildren in the car, exposing the [C]hildren to
substantial risk of bodily injury or death.” (Emphasis added.). Accordingly, we conclude
that the record supports termination on this statutory ground.

                                             B.

       Having concluded that there was clear and convincing evidence supporting one
statutory ground to terminate Mother‟s parental rights, we must consider whether
termination was in the best interest of the Children. In making this determination, we are
guided by the following non-exhaustive list of factors:

      (i)     In determining whether termination of parental or guardianship
      rights is in the best interest of the child . . . 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
                                            - 10 -
            for such duration of time that lasting adjustment does not reasonably
            appear possible;6

            (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 [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent‟s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
6
  In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015) (“[I]n a termination proceeding, the extent of
DCS‟s efforts to reunify the family is weighed in the court‟s best-interest analysis, but proof of reasonable
efforts is not a precondition to termination of the parental rights of the respondent parent.”).
                                                     - 11 -
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child‟s best interest, the court must take the
child‟s perspective, rather than the parent‟s).

       We commend Mother for her recent success in addressing her substance abuse
issues by actively participating in a rehabilitation program. While she has made
significant progress, she has not shown an adjustment of circumstance, conduct, or
conditions that would make it safe and in the Children‟s best interest to return to her
home in the near future when she was just recently released from the half-way house.
Tenn. Code Ann. § 36-1-113(i)(1). Questions remain as to whether the environment of
Mother‟s home would be healthy and safe as evidenced by the repetitive nature of her
conduct and her failure to sustain sobriety even while in a rehabilitation program. Tenn.
Code Ann. § 36-1-113(i)(7). Moreover, the Children reside in a safe and stable home.
Removing them would negatively affect their emotional and psychological condition as
evidenced by their regressive behavior following visitation. Tenn. Code Ann. § 36-1-
113(i)(5). We acknowledge Mother‟s love for the Children. The fact remains that the
Children need stability and have simply waited for far too long while Mother continued
to engage in behavior that was detrimental to her and them. With all of the above
considerations in mind, we conclude that there was clear and convincing evidence to
establish that termination of Mother‟s parental rights was in the best interest of the
Children. We affirm the decision of the trial court.

                                  V.     CONCLUSION

       This judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Costs of the appeal are taxed to the appellant,
Crystal P.


                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




                                          - 12 -
