                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                Assigned on Briefs July 1, 2016

                                         IN RE JOSHUA C.

                   Appeal from the Juvenile Court for Anderson County
                      No. J-32631/15-0727     Brian J. Hunt, Judge


                   No. E2016-00081-COA-R3-PT-FILED-JULY 28, 2016


The mother of a child born in January 2015 appeals the termination of her parental rights.
In March 2015, the two-month-old child was placed in state custody after the Department
of Children’s Services received a referral that the child had been exposed to drugs in
utero. Thereafter, the juvenile court adjudicated the child dependent and neglected and
found that the mother had committed severe child abuse as defined in Tenn. Code Ann.
§ 37-1-102(b)(21). The mother did not appeal this order. In June 2015, the Department
filed a petition for termination of parental rights. After a hearing, the trial court found the
evidence clearly and convincingly established that the mother committed severe child
abuse and that termination of the mother’s parental rights was in the child’s best interests.
We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II and KENNY W. ARMSTRONG, JJ., joined.

Tara L. Charlos, Knoxville, Tennessee, for the appellant, Mikayla C.1

Herbert H. Slatery, III, Attorney General and Reporter, and M. Cameron Himes,
Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.

                                              OPINION

      Mikayla C. (“Mother”) is the parent of Joshua C., a minor child born in January
2015. Shortly after the child’s birth, the Tennessee Department of Children’s Services

        1
           This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
(“the Department”) received a referral that Mother and the child tested positive for
opioids at the time of delivery, which required the child to stay in the hospital for an
extended period after his birth to recover from drug withdrawal symptoms. Thereafter, an
investigator with Child Protective Services made contact with Mother, who agreed to
submit to an additional drug screen. This test was positive for methamphetamines,
amphetamines, and marijuana.

        On March 9, 2015, the Department filed a petition for an emergency protective
custody order placing the child in temporary state custody, which was granted by the
juvenile court. The child was then placed in foster care, where he has remained ever
since. In June 2015, the juvenile court adjudicated the child dependent and neglected and
found that Mother committed severe child abuse, as defined in Tenn. Code Ann. § 37-1-
102(b)(21), by knowingly exposing the child to drugs in utero. Mother did not appeal this
order.

        On June 1, 2015, the Department filed a petition to terminate Mother’s parental
rights. A hearing on this petition took place on October 29, 2015. Although Mother was
provided notice of this hearing, she was not present on this date.2 At the hearing, the
Department submitted multiple exhibits into evidence, including the adjudicatory order
from the dependency and neglect hearing in which the juvenile court found that Mother
had committed severe child abuse.

        The court also heard testimony from the social services case manager assigned in
this case. The case manager testified that Mother had not provided any proof of progress
with regard to her alcohol and drug issues, does not have stable housing, and does not
have a verifiable legal income. The case manager also testified that while Mother had not
submitted to a random drug screen in several months, she admitted to using drugs as
recently as three weeks before trial. Additionally, at Mother’s last screening, in July
2015, she testified positive for methamphetamine, amphetamine, oxycodone, and
benzodiazepine. Further, the case manager testified that Mother is allotted visits with the
child once a week, but that her visitation has been “sporadic,” with Mother often failing
to inform the Department of her absence or respond to its inquiries about missed visits.
Regarding the child’s current living arrangements, the case manager testified that the
child is well taken care of by his foster family and is very happy at his foster home.

       After the hearing, the trial court issued an order, in which it made the following
findings of fact:




      2
          Mother’s counsel was present and participated at this hearing, however.


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      On June 16, 2015, the Court found by clear and convincing evidence that
      [Mother] committed severe abuse of the child, Joshua [C.]. The Order from
      said hearing is final.

      Since the child entered [the Department’s] custody [Mother] has not made
      changes in her lifestyle, conduct, or circumstances that would make it safe
      for the child to go home; there is no meaningful relationship between the
      child and [Mother]; [Mother] severely abused the child by exposing the
      child to her significant and persistent drug abuse while the child was in
      utero, thus causing the child to suffer hospitalization for withdrawal from
      drugs for approximately 45 days and [Mother] continues to abuse drugs
      rendering her consistently unable to care for the child in a safe and stable
      manner; [Mother] has shown little to no interest in the welfare of the child;
      and changing caregivers at this stage of the child’s life will have a
      detrimental effect on the child.

       Based on these findings, the trial court concluded that termination of Mother’s
parental rights was warranted on the grounds of severe child abuse pursuant to Tenn.
Code Ann. §§ 36-1-113(g)(4) & 37-1-102(b)(21). The court further found that the
termination was in the child’s best interests under Tenn. Code Ann. § 36-1-113(i).
Mother initiated this appeal and contends that the trial court erred in finding that
termination of her parental rights was in the best interests of the child.

                                 STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children
under both the United States and Tennessee constitutions. Keisling v. Keisling, 92 S.W.3d
374, 378 (Tenn. 2002) (citing Stanley v. Illinois, 405 U.S. 645, 651-52 (1972)). This right
is superior to the claims of other persons and the government, yet it is not absolute; the
state may terminate a person’s parental rights under certain circumstances. In re Heaven
L.F., 311 S.W.3d 435, 438 (Tenn. Ct. App. 2010); Santosky v. Kramer, 455 U.S. 745,
747-48 (1982).

       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 best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re
Adoption of Angela E., 402 S.W.3d 636, 639 (Tenn. 2013) (citing In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002)). Clear and convincing evidence is “evidence in which
there is no serious or substantial doubt about the correctness of the conclusions drawn
from the evidence.” Id. (citing In re Valentine, 79 S.W.3d at 546).




                                           -3-
       We review the trial court’s findings of fact in termination proceedings using the
standard of review in Tenn. R. App. P. 13(d). In re Carrington H., 483 S.W.3d 507, 523-
24 (Tenn. 2016) (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)). Under
Rule 13(d), appellate courts review factual findings de novo on the record with a
presumption of correctness unless the evidence preponderates otherwise. Id. (citing In re
Bernard T., 319 S.W.3d at 596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). “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.” Id. (citing In
re Bernard T., 319 S.W.3d at 596-97). The trial court’s ruling that the evidence
sufficiently supports termination of parental rights is a conclusion of law, which we
review de novo with no presumption of correctness. Id. (citing In re M.L.P., 281 S.W.3d
at 393). As in other appeals, all other questions of law in a parental termination case are
reviewed de novo with no presumption of correctness. Id. (citing In re Angela E., 303
S.W.3d 240, 246 (Tenn. 2010).

                                         ANALYSIS

        In order to terminate the parental rights of a biological parent, “a petitioner must
prove two elements by clear and convincing evidence: (1) at least one of the listed
grounds for termination, and (2) that termination of parental rights is in the child’s best
interest.” In re Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *5
(Tenn. Ct. App. April 20, 2016) (citing In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn.
2015)). Additionally, the Tennessee Supreme Court has recently stated 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 interests, regardless of whether the parent challenges these findings on
appeal.” In re Carrington H., 483 S.W.3d at 526-27. Accordingly, we will review the
trial court’s findings as to the grounds for termination and its best-interest determination,
whether those findings were challenged or not. See id.; In re Matthew T., 2016 WL
1621076, at *5.

                              I. GROUNDS FOR TERMINATION

       Our legislature has established the situations in which the rights of a biological
parent may be limited. In re Samaria S., 347 S.W.3d 188, 200 (Tenn. Ct. App. 2011).
These situations include when:

       The parent or guardian has been found to have committed severe child
       abuse as defined in [Tenn. Code Ann.] § 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

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        against the child who is the subject to 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. § 36-1-113 (g)(4). “Severe child abuse” under Tenn. Code Ann. § 37-1-
102 includes “[t]he 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[.]” See
Tenn. Code Ann. § 37-1-102(b)(21)(A)(i). We have previously held that a mother’s drug
use while pregnant may constitute severe child abuse to the unborn child under this
provision. In re Alleyanna S., No. M2015-00544-COA-R3-PT, 2016 WL 697359, at *7
(Tenn. Ct. App. Feb. 19, 2016) (citing In re Benjamin M., 310 S.W.3d 844, 850 (Tenn.
Ct. App. 2009)).

       Here, the evidence in the record shows that, despite being aware of the risks,
Mother persistently abused drugs while pregnant. This exposure caused the child to
experience drug withdrawals after birth and necessitated the child’s hospitalization for an
extended period of time. Therefore, Mother knowingly exposed the child to abuse that
was likely to cause serious bodily injury or death, which constitutes severe child abuse.
See Tenn. Code Ann. § 37-1-102(b)(21)(A)(i).

       Moreover, prior to the termination hearing, the juvenile court adjudicated the child
dependent and neglected based upon a finding that Mother committed severe child abuse.
As mentioned above, Mother did not appeal from the dependency and neglect order;
therefore, this adjudication constitutes a final order. See In re Serenity S., No. W2014-
00080-COA-R3-PT, 2014 WL 6612571, at *6 (Tenn. Ct. App. Nov. 24, 2014). Once
there has been a finding of severe child abuse in a final order, the doctrine of res judicata
prevents parents from re-litigating the issue of whether they committed severe child
abuse in a subsequent proceeding to terminate their parental rights.3 See In re Dakota
C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012); In re Matthew T., 2016 WL 1621076,
at *15. Therefore, the finding of severe child abuse in this case is res judicata. See In re
Alleyanna S., 2016 WL 697359, at *7.

                                  II. BEST INTEREST OF THE CHILD

       If one of the statutory grounds for termination is proven by clear and convincing
evidence, a parent’s rights may be terminated if it is also determined that termination of
the parent’s rights is in the best interests of the child. In re Heaven L.F., 311 S.W.3d at
440; In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
        3
          Under the doctrine of res judicata, “an existing final judgment rendered upon the merits, without
fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in
issue as to the parties and their privies, in all other actions in the same or any other judicial tribunal of
concurrent jurisdiction.” In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012).


                                                   -5-
       The legislature has identified nine statutory factors for the court to consider in
making a best interests analysis, see Tenn. Code Ann. § 36-1-113(i); however, this list is
not exhaustive, and the court need not find the existence of every factor before it may
conclude that terminating an individual’s parental rights is in the best interests of a child.
In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Instead, “[t]he relevancy and
weight to be given each factor depends on the unique facts of each case.” In re Audrey S.,
182 S.W.3d 838, 878 (Tenn. Ct. App. 2005). Further, in considering a petition to
terminate parental rights, the court is called to make a determination of the child’s best
interests from the perspective of the child rather than the parent. In re Heaven L.F., 311
S.W.3d at 441.

       One statutory factor to be considered is whether the parent 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. See Tenn. Code Ann. § 36-1-113(i)(1). In
this case, the trial court found that Mother had “not made changes in her conduct or
circumstances that would make it safe for the child to go home.” This conclusion is fully
supported by the record. As discussed above, the case manager testified that Mother had
not provided any proof of progress with regard to her alcohol and drug issues. Further,
Mother admitted to having used drugs as recently as three weeks before the termination
hearing and Mother tested positive for methamphetamine, amphetamine, oxycodone, and
benzodiazepine at her last drug screening.

       Another statutory factor is “[w]hether 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[.]” See Tenn. Code Ann. § 36-1-113(i)(7). Here, the case
manager’s testimony reveals that Mother does not have stable housing and does not have
a verifiable legal income. Further, as discussed above, Mother has continued to struggle
with drugs and alcohol since the child’s birth and has previously exposed the child to her
drug abuse. Therefore, we conclude that this factor favors termination of Mother’s
parental rights.

       Whether the parent’s mental and/or emotional status would be detrimental to the
child or prevent the parent from effectively providing safe and stable care and
supervision for the child is also a factor to be considered. See Tenn. Code Ann. § 36-1-
113(i)(8). In this case, the trial court found that “[Mother’s] drug abuse persists unabated
rendering her consistently unable to care for the child in a safe and stable manner.” We
agree with this assessment and conclude that this factor also weighs in favor of
termination.



                                            -6-
        Additionally, courts consider whether the parent has maintained regular visitation
or other contact with the child and whether a meaningful relationship has been
established between the parent and the child. See Tenn. Code Ann. §§ 36-1-
113(i)(3) & (4). According to the case manager’s testimony, Mother engaged in sporadic
visitation with the child, but frequently missed visits without an excuse. Additionally,
when asked whether the child had developed a bond with Mother, the case manager
testified that, although the child appeared happy to see Mother, “[h]e is very happy to see
almost anybody. He smiles when anyone comes to talk to him. At his age, I don’t know
that he knows that’s his actual mother.” Thus, due to the child’s young age and Mother’s
infrequent contact, it is evident that a meaningful relationship has not been established
between Mother and the child.

        The effect a change of caretakers and physical environment is likely to have on the
child’s emotional, psychological, and medical condition is also a factor that is considered.
See Tenn. Code Ann. § 36-1-113(i)(5). The juvenile court found that changing caregivers
at this stage in the child’s life would have a detrimental effect on the child. The record in
this case indicates that the child has lived continuously with his current foster family
since leaving the hospital and has never resided with Mother. Additionally, the case
manager testified that the child is well taken care of and happy at his current foster home.
Accordingly, we agree with the juvenile’s court’s conclusion that removing the child
from this environment would be detrimental and harmful to the child.

       Based on these findings, we conclude the evidence clearly and convincingly
supports the juvenile court’s ruling that termination of Mother’s parental rights is in the
child’s best interests.

                                     IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Mikayla C.


                                                      ______________________________
                                                      FRANK G. CLEMENT, JR., JUDGE




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