                                                                                               06/12/2017




                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  January 24, 2017 Session

                                         IN RE P.T.F.

                    Appeal from the Juvenile Court for Knox County
                         No. 148322 Timothy E. Irwin, Judge
                       ___________________________________

                              No. E2016-01077-COA-R3-PT
                         ___________________________________


In this termination of parental rights case, the Department of Children’s Services filed a
petition to terminate the parental rights of T.W.B. (mother) with respect to her child,
P.T.F.1 The trial court found clear and convincing evidence of two grounds supporting
termination. By the same quantum of proof, the trial court held that termination of
mother’s parental rights is in the best interest of the child. Mother appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Sherif Guindi, Knoxville, Tennessee, for the appellant, T.W.B.

Herbert H. Slatery III, Attorney General and Reporter, and Brian A. Pierce, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.


                                           OPINION

                                                I.

      During mother’s pregnancy, mother failed three drug screens, testing positive for
marijuana on two occasions and twice for opiates. Mother admitted at trial that she used
oxycodone without a prescription several times a week during the first three months of
       1
         DCS filed a separate petition to terminate the parental rights of the child’s father. His
rights were terminated on December 1, 2015 and are not at issue on this appeal.
her pregnancy. On July 3, 2014, DCS sent an investigator for the Office of Child Safety
to the hospital to observe the child and interview mother. Following the investigation,
DCS had concerns about the safety of the child. It determined that she needed to be
placed with a care-provider. On July 4, 2014, the trial court entered a protective custody
order finding the child to be dependent and neglected. The court awarded temporary
custody to DCS. The child has remained in foster care since that date.

       On October 15, 2014, the trial court entered a child support order requiring mother
to pay child support in the amount of $100 per month. The court also found that mother
owed a child support arrearage of $225, which included retroactive support to July 3,
2014. The court ordered mother to pay $10 per month toward the arrearage for a total
monthly child support obligation of $110.

       On October 13, 2015, DCS filed a petition to terminate mother’s parental rights.
In the petition, DCS alleged the following grounds for termination: (1) severe child
abuse pursuant to Tenn. Code Ann. §§ 36-1-113(g)(4) and 37-1-102(b)(22); (2)
abandonment by willful failure to support pursuant to Tenn. Code Ann. §§ 36-1-
113(g)(1) and 36-1-102(1)(A)(i); (3) abandonment by failure to provide a suitable home
pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (4) persistence of
conditions pursuant to Tenn. Code Ann. §§ 36-1-113(g)(3); and (5) substantial
noncompliance with a permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2).
DCS also asserted that termination of mother’s parental rights is in the best interest of the
child.

       On August 31, 2016, the trial court entered its final judgment terminating mother’s
parental rights, finding that there was clear and convincing evidence of severe child abuse
and abandonment by mother’s willful failure to support. However, the court determined
that DCS had not met its burden of proving abandonment by failure to provide a suitable
home, persistence of conditions, or substantial noncompliance with a permanency plan.
The court found clear and convincing evidence that termination is in the child’s best
interest. Mother appeals.

                                             II.

       Mother raises the following issues on appeal, as taken verbatim from her brief:

              Did the [trial] court err in finding that the termination of
              parental rights ground of severe child abuse has been
              established?

              Did the [trial] court err in finding that the termination of
              parental rights ground of abandonment by failure to support
              has been established?
                                          -2-
              Did the [trial] court err in finding that termination of
              [mother’s] parental rights is in the best interest of her child?

                                            III.

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

       To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables
the fact-finder to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these factual
findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

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

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

      The Supreme Court has stated our standard of review:

             An appellate court reviews a trial court’s findings of fact in
             termination proceedings using the standard of review in Tenn.
             R. App. P. 13(d). Under Rule 13(d), appellate courts review
             factual findings de novo on the record and accord these
             findings a presumption of correctness unless the evidence
             preponderates otherwise. In light of the heightened burden of
             proof in termination proceedings, however, the reviewing
             court must make its own determination as to whether the
             facts, either as found by the trial court or as supported by a
             preponderance of the evidence, amount to clear and
             convincing evidence of the elements necessary to terminate
             parental rights. The trial court’s ruling that the evidence
             sufficiently supports termination of parental rights is a
             conclusion of law, which appellate courts review de novo
             with no presumption of correctness. Additionally, all other
             questions of law in parental termination appeals, as in other
             appeals, are reviewed de novo with no presumption of
             correctness.

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

                                          IV.

                                          A.

                                           i.

       As previously noted, DCS sought to terminate mother’s parental rights based upon
severe child abuse. In its petition, DSC alleged that

             [t]his child was removed from the parents’ custody due to
             unresolved substance abuse issues, domestic violence in the
             home, and mental health issues. During the pregnancy
             [mother] had taken opiates, without a prescription, despite
                                        -4-
              knowing that such use was dangerous and could cause harm
              to her baby.

The trial court found clear and convincing evidence that mother had taken drugs during
her pregnancy, despite knowing the adverse effects that it could have on the child. In
making its ruling, the trial court stated the following:

              [T]aking drugs in six months of pregnancy knowing the
              adverse effects that it could have[.] It doesn’t have to have
              [adverse effects], it just could have. You got lucky here. You
              stopped it, sounds like, which is great. But is that still severe
              child abuse? Yeah it is. Absolutely severe abuse. . . . [T]he
              questions that were posed to the doctor, she’s trying to answer
              from a scientific basis. She doesn’t even know or understand
              the legal ramifications or issues. She doesn’t know about the
              precedence . . . ; a year, and it’s April 9th, and full term for
              using July, and you still tested positive for opiates? In this
              court, that’s enough.

The trial court’s final decree of termination explained that

              [the expert] testified that opiates or marijuana by themselves
              are not dangerous, but that there are potential long-term
              neurological consequences and the possibility of growth
              retardation from the use of opiates during pregnancy. . . . She
              also testified that, in her experience, among the population of
              drug abusing women that she sees in her practice, other risks
              attend the drug use, including not knowing what you are
              putting in your body when you buy drugs off the street;
              risking overdose when not taking medication under a doctor’s
              care; short of overdose, risking impairment that could cause
              accidental injury to the fetus if the mother falls or drives
              impaired; and risks associated with taking the drugs in a
              manner not prescribed such as snorting or IV use. Nothing in
              [the expert’s] testimony causes this [c]ourt to deviate from the
              long history of appellate cases in Tennessee that set forth the
              requirements for making a finding that the mother severely
              abused her child by her abuse of drugs in pregnancy, knowing
              that such abuse presented a risk of harm to her child.

              The mother’s own testimony revealed that she used drugs
              during the first trimester of her pregnancy, and taking her
              testimony in the most favorable light to the mother, she used
                                           -5-
             during the first month following her knowledge that she was
             pregnant. She used Oxycodone and marijuana during that
             time frame.

                                   *      *         *

             The mother knew the risk of harm associated with her abuse
             of drugs during this pregnancy and continued to use such
             drugs exposing her child to the risk of serious bodily injury or
             death.

(Paragraph numbering in original omitted.) The court concluded that mother committed
severe child abuse against the child.

                                              ii.

      The evidence does not preponderate against the trial court’s finding of severe child
abuse. Tenn. Code Ann. § 36-1-113(g)(4) allows for termination of parental rights when

             [t]he parent or guardian has been found to have committed
             severe child abuse as defined in § 37-1-102, under any prior
             order of a court or is found by the court hearing the petition to
             terminate parental rights or the petition for adoption to have
             committed severe child abuse against the child who is the
             subject of the petition or against any sibling or half-sibling of
             such child, or any other child residing temporarily or
             permanently in the home of such parent or guardian[.]

Tenn. Code Ann. § 37-1-102(b)(22) defines severe child abuse 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 phychosis, severe neurotic
             disorder, severe depression, severe developmental delay or
                                           -6-
              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.

Tenn. Code Ann. § 39-15-402(d) provides the following:

              “Serious bodily injury to the child” includes, but is 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.

       On appeal, mother acknowledges that “[t]his Court has upheld, in a multitude of
cases, that a mother’s use of drugs while pregnant can support a finding of severe child
abuse.” She argues, however, that, in the cases cited by the trial court and in a string of
cases she cites in her brief, “the facts in all of these cases much more clearly and
convincingly support a finding of severe abuse than do the facts of the case at bar.” Her
argument is not persuasive. The issue before us is not whether the evidence in this case is
lesser than that in other cases. The issue is simply whether the evidence clearly and
convincingly shows severe child abuse. Mother has failed to demonstrate how the
evidence in this case preponderates against the trial court’s finding of clear and
convincing evidence. Furthermore, she has failed to distinguish these cases from her case
other than to say that the specific drugs in those cases were more harmful and/or that the
child suffered some specific harm. Instead of citing authority for her argument that her
prenatal drug use does not constitute severe child abuse, mother cites numerous cases in
which this Court upheld a finding that prenatal drug use constituted severe child abuse.
To us, those cases demonstrate the uniform view of this Court that prenatal drug use
does, in fact, constitute severe child abuse.

        Mother focuses on the fact that her prenatal drug use did not cause serious injury
to the child. She argues that her expert “testified that mother’s drug use, as evidenced in
her and [the child’s] records, would not likely cause any of the injuries enumerated in
Tenn. Code Ann. § 39-15-402(d), nor would it likely cause injuries of similar severity to
those enumerated in said statute.” She emphasizes the fact that, according to her expert,
“[t]he only potential long term effects on [the child are] problems with attention and
hyperactivity.” Mother concludes that the evidence “does not even suggest that [her]
drug use is likely to cause any harm at all, let alone serious bodily injury or death[.]”

       This Court, however, has found severe child abuse in the absence of an injury to or
long-term effects on a child. “Severe abuse can be present even where the child does not
manifest any lasting physical effect from mother’s use of drugs.” In re Envy J., No.
                                          -7-
W2015-01197-COA-R3-PT, 2016 WL 5266668, at *12 (Tenn. Ct. App., filed Sept. 22,
2016). We have found that, even when a child enjoys a healthy childhood, “the healthy
development of the child . . . does not diminish the severity of the harm to which the
child was exposed.” In re M.J.J., No. M2004-02759-COA-R3-PT, 2005 WL 873305, at
*8 (Tenn. Ct. App., filed April 14, 2005). “[P]renatal abuse of controlled substances
constitutes severe child abuse, whether or not the child actually suffers harm.” In re
Shannon P., No E2012-00445-COA-R3-PT, 2013 WL 3777174, at *5 (Tenn. Ct. App.,
filed July 16, 2013). A child has the right “to begin life free from the impairment of drug
addiction and other ill effects of prenatal drug abuse.” In re Benjamin M., 310 S.W.3d
844, 849 (Tenn. Ct. App. 2009).

       At trial, mother’s expert testified that neither opiates nor marijuana alone is likely
to cause serious bodily injury. With regard to prenatal drug use and the likelihood of
harm to the child, the expert testified as follows:

              Perhaps the more concerning part of it is the behavior around
              how they’re getting meds and where they’re getting them
              from.

                                   *      *       *

              [Y]ou’re still putting yourself in a situation where who knows
              where they’re getting their drugs from, and that is perhaps an
              issue in itself.

                                   *      *       *

              I think it’s probably not necessarily the drugs themselves
              unless we’re talking overdose. That could potentially lead to,
              obviously, mother injury leading to fetal injury. So if they’re
              using drugs to the extent of overdose, of course that could
              lead to serious injury.

                                   *      *       *

              [A]s I tell anybody who comes to me on any medication, the
              less influence you have from anything the less you have to
              worry about, or the less factors you have affecting neuro
              development.

                                   *      *       *

              Even according to the Pediatric Journal there are some long-
                                         -8-
             term neuro developmental effects, such as attention and
             hyperactivity.

When the trial court questioned the expert as to whether “in utero drug exposure to an
opiate [can] cause severe psychosis, severe neurotic disorder, severe depression, severe
developmental delay, intellectual disability, or severe impairment of a child’s ability to
function adequately in the child’s environment[,]” the expert gave the following
testimony:

             [In a Pediatric article, t]hey specifically talk about neuro
             behavior, and the long-term effects, they talk about several
             things in the article; one of the things is learning and
             cognition. And they acknowledge the fact that there have
             been some studies that have an effect on IQ and learning and
             developmental, major developmental issues.

             But, they say there is no consensus on the effect of opiates on
             long-term significant learning disabilities. And that there’s
             not enough literature to talk about it in terms of . . . other
             learning and cognition I think.

This testimony supports a finding that mother’s prenatal drug use constitutes severe child
abuse. According to the expert, there is no consensus on the long-term effects of
mother’s prenatal drug abuse. While the child here may develop normally, the expert
testified that there could be attention and hyperactivity issues. It is unclear what other
long term effects may develop. This Court has consistently upheld termination of a
mother’s parental rights on the ground of severe child abuse when she has used drugs
during pregnancy. We hold, as a matter of law, that the evidence does not preponderate
against the trial court’s finding of clear and convincing evidence supporting termination
of mother’s parental rights based on severe child abuse.

                                           B.

                                            i.

       The trial court found that DCS had proven a ground for termination based upon
mother’s willful failure to support the child. In the petition to terminate mother’s
parental rights, DCS alleged that mother

             has willfully failed to support or make reasonable payments
             toward the support of the child for four (4) consecutive
             months immediately preceding the filing of this petition.
             During the previous five months, [mother] has made only one
                                          -9-
              contribution toward the support of this child, on May 8, 2015,
              despite reporting continuous employment.

The trial court found clear and convincing evidence supporting this ground. In making
its ruling, the trial court made the following findings:

              [DCS] proved source of income, they proved knowledge that
              you’re supposed to be making a payment. Now, the way the
              [m]other forgot or not is pretty much irrelevant. . . .

              If I forget to pay . . . for four months, [the child] is not going
              to have the things they need. . . . [DCS] proved that ground,
              there’s not much question about that.

              [DCS] proved the willful part of it, because Mom was
              employed. They didn’t talk about how much she made but
              the child support was only $110 a month. She didn’t pay that
              once in the four months that count.

In the final decree of termination, the court found that

              mother paid no child support for the months of June, July,
              August, September, and October, 2015.

               . . . The mother provided [the caseworker] information
              leading [her] to conclude that the mother was always
              employed during the time that her daughter was in the
              custody of the Department. . . .

              The mother never reported any dates of unemployment to [the
              caseworker]. . . .

              [Mother] testified that she ‘thought the support would get
              deducted out of my checks,’ because this had been her
              experience in the past, and, as far as she knew, child support
              was being deducted out of the father’s paycheck. She
              testified that she did not make a voluntary payment until
              December 2015. She also testified, under questioning by her
              attorney, that she had stable employment.

                                   *       *      *

               . . . Based on the testimony, she appears to have always been
                                           - 10 -
             employed during the relevant time frame. Mother did not pay
             any child support in the relevant time and she had the ability
             to do so. She never testified that she could not afford to pay.
             She testified that she just did not realize that the payments
             were not being taken out. However, she acknowledged
             receiving a copy of the order and that the order has the
             information on how to ensure payment. Presumably she also
             would be able to look at her own pay stubs and determine if
             child support had been taken out. Mother also had access to
             TESES to determine if her child support was being paid.

(Paragraph numbering in original omitted.) Based on the facts, the trial court found that
mother’s failure to support the child. was willful and that DCS had proven, by clear and
convincing evidence, that mother willfully failed to support the child.

                                            ii.

       Tenn. Code Ann. § 36-1-113(g)(1) allows a court to terminate parental rights when
the parent has abandoned the child, as defined in Tenn. Code Ann. § 36-1-102. Tenn.
Code Ann. § 36-1-102(1)(A)(i) defines “abandonment” to include the following:

             For a period of four (4) consecutive months immediately
             preceding the filing of a proceeding or pleading to terminate
             the parental rights of the parent . . . of the child who is the
             subject of the petition for termination of parental rights . . . ,
             that the parent . . . ha[s] willfully failed to support or ha[s]
             willfully failed to make reasonable payments toward the
             support of the child[.]

        Because DCS filed the petition to terminate mother’s parental rights on October
13, 2015, the relevant four-month period runs from June 13, 2015 through October 12,
2015. Mother admits in her brief that “there is no doubt that [she] failed to make any
child support payments during the relevant period.” Mother, however, argues that her
failure to pay support should not be classified as “willful.” In her brief, she argues the
following:

             She simply thought that her child support payments were
             coming out of her paychecks, because they had come out of
             her paychecks in her previous case with DCS, and child
             support payments were coming out of . . . father’s paychecks.
             Her failure to pay was accidental and inadvertent, not willful.

      This Court has found the following regarding the “willfulness” of a parent in
                                      - 11 -
failing to support a child:

              In the statutes governing the termination of parental rights,
              “willfulness” does not require the same standard of
              culpability as is required by the penal code. Nor does it
              require malevolence or ill will. Willful conduct consists of
              acts or failures to act that are intentional or voluntary rather
              than accidental or inadvertent. Conduct is “willful” if it is the
              product of free will rather than coercion. Thus, a person acts
              “willfully” if he or she is a free agent, knows what he or she
              is doing, and intends to do what he or she is doing.

              Failure to . . . support a child is “willful” when a person is
              aware of his or her duty to . . . support, has the capacity to do
              so, makes no attempt to do so, and had no justifiable excuse
              for not doing so. . . .

              The willfulness of particular conduct depends on the actor’s
              intent. Intent is seldom capable of direct proof, and triers-of-
              fact lack the ability to peer into a person’s mind to assess
              intentions or motivations. Accordingly, triers-of-fact must
              infer intent from the circumstantial evidence, including a
              person’s actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App., 2005) (internal citations
omitted.) “Because testimony may be critical to the determination of whether a parent’s
conduct was willful, trial courts are best situated to make a determination of willfulness.”
In re Neylan H., No. E2015-02444-COA-R3-PT, 2016 WL 7477740, at *10 (Tenn. Ct.
App., filed December 29, 2016).

       It is undisputed that mother did not make any child support payments during the
relevant four-month period. At trial, mother testified that she has maintained stable
employment since the child was born. Her reason for failing to make child support
payments was that she thought the payments were coming out of her pay. This does not
excuse mother from her obligation of making child support payments. Mother had
avenues available to determine that she was actually meeting her child support obligation.
She did nothing.

       The trial court witnessed mother’s testimony at trial and made a determination
based on that testimony and the facts in the case that mother’s failure to pay child support
was willful. The trial court was best positioned to make that determination. Id. Based
on the testimony at trial, the trial court held that DCS had met its burden of proving that
mother’s failure to pay child support was willful.
                                             - 12 -
       We find that mother’s belief that child support was being deducted from her
checks does not negate the “willfulness” of her failure to pay support. Mother provides
no justification for her failure to take any action to ensure that she was paying child
support as ordered. Mother had access to her paycheck stubs to determine whether any
support was being deducted from her checks. She could have taken any number of steps
to verify that she was fulfilling her child support obligation. Mother, however, chose to
take no action after being ordered to pay child support to ensure that she was paying child
support. This failure to act on mother’s part was willful. There was no testimony
indicating that mother had been misled to believe that her payments were being
automatically deducted. The evidence does not support mother’s claim that her failure to
support the child was accidental or inadvertent. We fail to see how mother’s inaction
should excuse her failure to make the required payments.

        In her brief, mother asserts that “when she found out that child support was not
coming out of her checks, she paid and filed her taxes, knowing that her tax refund would
go towards child support.” This fact is irrelevant to our analysis of the issue. Tenn. Code
Ann. § 36-1-102(1)(F) provides that “[a]bandonment may not be repented by resuming
. . . support subsequent to the filing of any petition seeking to terminate parental . . .
rights[.]” Tenn. Code Ann. § 36-1-102(1)(F). Accordingly, mother’s subsequent filing
of her taxes has no bearing on this case. We hold, as a matter of law, that the evidence
does not preponderate against the trial court’s finding that mother willfully failed to
support the child during the four months immediately preceding the filing of the petition
to terminate her rights.

                                            C.

       As previously stated, the Supreme Court has determined that “the Court of
Appeals must review the trial court’s findings as to each ground for termination . . . ,
regardless of whether the parent challenges these findings on appeal.” In re Carrington
H., 483 S.W.3d at 525-26. The Court explained that this mandatory review of each
ground “will ensure that fundamental parental rights are not terminated except upon
sufficient proof, proper filings, and fundamentally fair procedures.” Id. at 525.

       This Court focuses on the parent whose rights are subject to termination and the
protection of those fundamental rights. The Court removes the burden from a parent of
challenging each ground in the case. Because this automatic review is done to protect a
parent’s fundamental rights and removes the burden of challenging each of the trial
court’s findings on appeal, we interpret the Supreme Court’s holding to be for the benefit
and protection of the parent whose rights are subject to termination. Accordingly, we
find that In re Carrington H. requires the Court of Appeals to review each ground of
which the trial court found clear and convincing evidence supporting termination of the
parent’s rights. However, we do not read that decision to require the Court of Appeals to
review those grounds for termination that the trial court found were not supported by
                                           - 13 -
clear and convincing evidence. This is not to say that DCS may not appeal the trial
court’s findings with regard to grounds that a trial court finds the agency failed to prove.
DCS can challenge those decisions and secure full appellate review. But, in the absence
of such a challenge, those grounds will not be reviewed by us. The trial court found that
DCS failed to prove grounds of abandonment for failure to provide a suitable home,
persistence of conditions, or substantial noncompliance with permanency plan by clear
and convincing evidence. DCS has not challenged the trial court’s findings as to any of
these grounds. Accordingly, we will not review the trial court’s findings with respect to
these grounds.

                                             V.

                                             A.

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

              In determining whether termination of parental or
              guardianship rights is in the best interest of the child pursuant
              to this part, the court shall consider, but is not limited to, the
              following:

              (1) Whether the parent or guardian has made such an
              adjustment of circumstance, conduct, or conditions as to
              make it safe and in the child’s best interests to be in the home
              of the parent or guardian;

              (2) Whether the parent or guardian has failed to effect a
              lasting adjustment after reasonable efforts by available social
              services agencies for such duration of time that lasting
              adjustment does not reasonably appear possible;

              (3) Whether the parent or guardian has maintained regular
              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;
                                         - 14 -
              (6) Whether the parent or guardian, or other person residing
              with the parent or guardian, has shown brutality, physical,
              sexual, emotional or psychological abuse, or neglect toward
              the child, or another child or adult in the family or household;

              (7) Whether the physical environment of the parent’s or
              guardian’s home is healthy and safe, whether there is criminal
              activity in the home, or whether there is such use of alcohol,
              controlled substances or controlled substance analogues as
              may render the parent or guardian consistently unable to care
              for the child in a safe and stable manner;

              (8) Whether the parent’s or guardian’s mental and/or
              emotional status would be detrimental to the child or prevent
              the parent or guardian from effectively providing safe and
              stable care and supervision for the child; or

              (9) Whether the parent or guardian has paid child support
              consistent with the child support guidelines promulgated by
              the department pursuant to § 36-5-101.

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

                                              B.

        In the present action, the trial court held that termination of mother’s parental
rights is in the best interest of P.T.F. The court found the following in making that
determination:

              [T]he Court believes that removing the child from the only
              family she has known for her entire life, who have had a 24
              hour a day, 7 day a week responsibility to her, would be
              detrimental to her emotional well-being.

              The mother currently has made some adjustment in her
              circumstances by refusing to allow the father to live with her
                                         - 15 -
             and by discontinuing her use of opiates. . . .

             The mother has visited regularly, but only at those visits that
             [DCS] provided. The mother, however, took advantage of
             almost none of the three additional visits per week offered by
             the foster family.

             The mother does have a meaningful relationship with the
             child, but it pales in comparison to the relationship the foster
             family has to the child . . . .

             [A] change in caretakers would be devastating to this little
             girl. . . .

             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 household – this sounds like
             [father], but since he is not in the home, it is neutral.
             However, along with the finding of severe abuse comes the
             detriment to mother of this best interest factor ground
             weighing against her.

             [The child] is entitled to a safe, secure and loving home. [The
             child] has been in the custody of the same foster parents since
             being placed in the custody of [DCS]. She has known no
             other mother or father or family than this foster family who
             have opened their home and their heart to [P.T.F.] this past 21
             months.

             She has become integrated into the foster family and she is
             thriving in their care.

(Paragraph numbering in original omitted.) Based upon these findings, the trial court
found that DCS had proven, by clear and convincing evidence, that termination of
mother’s rights is in the best interest of P.T.F.

                                            C.

      The evidence does not preponderate against the trial court’s finding that
termination of mother’s parental rights is in the child’s best interest. It appears that
mother has made an adjustment to her circumstances to make it safe for the child to be in
the home. The record indicates that mother has quit using drugs and has made a decision
                                         - 16 -
to exclude father from her life. These adjustments, however, do not overcome the
negative effects that placing the child with mother would have. Mother has not
established a meaningful relationship with the child. While she has been in contact with
the child and visited her, she has not taken the extra step of taking advantage of the
additional visitation hours that the foster family has made available to her. She has not
taken the steps to cultivate a meaningful relationship with the child. Because mother
lacks this meaningful relationship with the child and the foster family has been the only
family that she knows, changing the child’s caretaker would likely have a detrimental
effect on the child. Additionally, mother has failed to provide support for the child.

       While mother has left father, so it does not appear that mother is residing with
someone he has shown brutality, physical, sexual, emotional, or psychological abuse to
the child, we have found that her conduct during pregnancy constitutes severe child
abuse. While mother appears to be emotionally stable such that her mental condition
would not prevent her from providing safe and stable care to the child, this does not
overcome the detrimental effect of removing the child from her home and changing her
caretaker. Additionally, mother has refused to provide any information regarding her
boyfriend to determine whether it would be detrimental for the child to be around him.
Based on our analysis of these factors, we hold, as a matter of law, that termination of
mother’s parental rights is in the best interest of the child.

                                          VI.

      The judgment of the trial court is affirmed. The costs on appeal are assessed to
the appellant, T.M.B. This case is remanded for enforcement of the trial court’s
judgment and for collection of costs assessed below.


                                                  _______________________________
                                                  CHARLES D. SUSANO, JR., JUDGE




                                         - 17 -
