                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                           Assigned on Briefs March 12, 2014

                     IN THE MATTER OF RYAN K. M., ET AL.

               Direct Appeal from the Circuit Court for Chester County
                       No. 13-CV-30     Donald H. Allen, Judge


                  No. W2013-02201-COA-R3-PT - Filed April 23, 2014


Mother’s parental rights to her three sons were terminated after she pled guilty to the second
degree murder of a fourth son. On appeal, Mother concedes that termination grounds were
proven by clear and convincing evidence; she challenges only the trial court’s finding that
termination of her parental rights is in the children’s best interest. We affirm the trial court’s
best interest finding, and thus, its termination of Mother’s parental rights.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

G. W. Sherrod, III, Henderson, Tennessee, for the appellant, Stephanie M.

Robert E. Cooper, Jr., Attorney General and Reporter, Ryan L. McGehee, Assistant Attorney
General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s
Services

Lanis L. Karnes, Jackson, Tennessee, Guardian Ad Litem
                                               OPINION

                              I.   F ACTS & P ROCEDURAL H ISTORY

        This is a termination of parental rights case involving three children. On April 21,
2011, the Department of Children’s Services (“DCS”) received a referral for alleged lack of
supervision and nutritional neglect regarding a six month old male child, Clever M. The
child’s mother, Stephanie M. (“Mother”) had presented the child at a physician’s office and
the unresponsive child was immediately transferred to the Jackson-Madison County General
Hospital Neonatal Intensive Care Unit. Upon arrival at the hospital, the child was in cardiac
arrest and he was later pronounced dead. At the hospital, Mother tested positive for
marijuana use. An autopsy determined that Clever had “starved to death” and the autopsy
listed “[c]omplications of chronic malnutrition”as his cause of death and “homicide” as his
manner of death. As a result of Clever’s death, Mother pled guilty to aggravated child abuse
and second degree murder. She was sentenced to twenty years in prison.1

       On April 28, 2011, DCS filed a Petition in the Chester County Juvenile Court against
Mother and the father of at least two of Mother’s children, Devin D., seeking to adjudicate
Mother’s then-twenty month old and three year old sons, Tyler D. and Stephaun A.E.M.,
dependent and neglected. That same day, a Protective Custody Order was entered placing
Tyler and Stephaun in DCS custody. While incarcerated, Mother gave birth to another child,
Ryan K.M. Shortly after the child’s birth, DCS filed a Petition to adjudicate Ryan dependent
and neglected.2

      On May 22, 2012, the juvenile court entered Adjudicatory and Dispositional Hearing
Orders finding that Mother’s three children were dependent and neglected and that their
deceased sibling, Clever, had been the victim of severe child abuse as defined in Tennessee
Code Annotated section 37-1-102(23), perpetrated by Mother and Devin D.

       On June 12, 2013, DCS filed a Petition for Termination of Parental Rights in the
Chester County Circuit Court against Mother, Devin D., and Unknown Fathers as to Tyler,
Stephaun, and Ryan, alleging against Mother the grounds of abandonment by an incarcerated
parent, Tenn. Code Ann. §§ 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(iv);


        1
         Devin D., who lived with Mother and Clever, was found guilty of criminal neglect homicide and
aggravated child abuse. Father apparently appealed his conviction and the appeal was unresolved at the time
of the parental termination trial.
        2
        DNA tests confirmed that Devin D. is the biological father of Tyler and Ryan. It is unclear whether
Devin D. was also the biological father of Clever M.

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severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); ten year sentence, Tenn. Code Ann.
§ 36-1-113(g)(6); and sentence of more than two years for severe child abuse, Tenn. Code
Ann. § 36-1-113(g)(5).

       A trial was held on July 17, 2013. On August 30, 2013, the circuit court entered an
Order terminating Mother’s parental rights finding that all termination grounds alleged by
DCS had been proven by clear and convincing evidence and that termination is in the
children’s best interest.3 Mother timely appealed.

                                        II.     I SSUES P RESENTED

On appeal Mother concedes that termination grounds were proven by clear and convincing
evidence; she challenges only the trial court’s finding that termination of her parental rights
is in the children’s best interest. For the following reasons, we affirm the trial court’s best
interest finding, and thus, its termination of Mother’s parental rights.

                                              III.   D ISCUSSION

        “A biological parent’s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the Due Process Clause of
the federal and state constitutions.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App.
2007); In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005). Although the parent’s
right is fundamental and superior to the claims of other persons and the government, it is not
absolute. In re J.C.D., 254 S.W.3d at 437. A parent’s right “continues without interruption
only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring
its limitation or termination.” Id.; see also In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct.
App. 2004).

        In Tennessee, proceedings to terminate a parent’s parental rights are governed by
statute. “Parties who have standing to seek the termination of a biological parent’s parental
rights must prove two things.” In re Audrey S., 182 S.W.3d at 860; see also In re M.J.B.,
140 S.W.3d at 653. First, they must prove the existence of at least one of the statutory
grounds for termination, which are listed in Tennessee Code Annotated section 36-1-113(g).
Id. Several grounds for termination are listed in subsection (g), but the existence of any one
of the grounds enumerated in the statute will support a decision to terminate parental rights.
In re S.R.C., 156 S.W.3d 26, 28 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925
(Tenn. Ct. App. 2004). Second, the petitioner must prove that terminating parental rights is
in the child’s best interest, considering, among other things, the factors listed in Tennessee

       3
           Devin D.’s parental rights were also terminated. He is not a party to this appeal.

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Code Annotated section 36-1-113(I). In re Audrey S., 182 S.W.3d at 860. Because no civil
action carries graver consequences than a petition to sever family ties forever, both of the
elements for termination must be proven by clear and convincing evidence. Id. at 860-61.
In sum, “[t]o terminate parental rights, a trial court must determine by clear and convincing
evidence not only the existence of at least one of the statutory grounds for termination but
also that termination is in the child’s best interest.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). Clear and
convincing evidence has been defined as evidence that “eliminates any serious or substantial
doubt concerning the correctness of the conclusion to be drawn from the evidence.” In re
L.J.C., 124 S.W.3d 609, 619 (Tenn. Ct. App. 2003) (quoting In the Matter of: C.D.B., S.S.B.,
& S.E.B., 37 S.W.3d 925, 927 (Tenn. Ct. App. 2000)). It produces a firm belief or conviction
in the fact-finder’s mind regarding the truth of the facts sought to be established. In re
Audrey S., 182 S.W.3d at 861.

       As stated above, on appeal Mother concedes that grounds for termination exist; she
challenges only the trial court’s finding that termination of her parental rights is in the
children’s best interest. Once a ground for termination is established by clear and convincing
evidence, we must consider whether termination of parental rights is in the child’s best
interest. In evaluating the child’s best interest, we are to consider numerous factors including
those set forth in Tennessee Code Annotated section 36-1-113(I):

       (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 for such duration
       of time that lasting adjustment does not reasonably appear possible;

       (3) Whether the parent or guardian has maintained regular visitation or other
       contact with the child;

       (4) Whether a meaningful relationship has otherwise been established between
       the parent or guardian and the child;

       (5) The effect a change of caretakers and physical environment is likely to
       have on the child’s emotional, psychological and medical condition;

       (6) Whether the parent or guardian, or other person residing with the parent or
       guardian, has shown brutality, physical, sexual, emotional or psychological

                                              -4-
        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 parents 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.

“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)
(citing State v. T.S.W., No. M2001-01735-COA-R3-JV, 202 WL 970434, at *3 (Tenn. Ct.
App. May 10, 2002)). “The child’s best interest is to be determined from the perspective of
the child rather than the parent.” In re Brandon J.G., No. M2013-01832-COA-R3-PT, 2014
WL 791934, at *10 (Tenn. Ct. Ap. Feb. 25, 2014) (citing State Dep’t of Children’s Servs. v.
L.H., No. M2007-00170-COA-R3-PT, 2007 WL 2471500, at *7 (Tenn. Ct. App. Dec. 3,
2007); White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

      At the trial in this matter, several witnesses testified regarding the circumstances
surrounding Clever’s death.4 At birth, Clever weighed 7 pounds, 4 ounces; however, at six
months old, he weighed only between 3 pounds, 11 ounces and 10 pounds, 3
ounces5 –significantly less than the at least thirteen to fourteen pounds that he should have
weighed. On the date of his death, Clever was described as cachectic–“skin hanging over
bones.” He exhibited obvious signs of malnutrition such as emaciation and lethargy. He
was “very dehydrated[,]” he had eczema “all over his face. . . . [which] was open and


        4
            Additionally, Dr. Lisa Piercey’s deposition was submitted into evidence.
        5
          A DCS investigator testified that Clever weighed 10 pounds, 3 ounces at his death, Dr. Lisa Piercey
testified that he weighed approximately 9 pounds at death, and the autopsy listed his weight as 1700 grams,
or 3 pounds, 11 ounces.

                                                     -5-
bleeding[,]” and he had “caked on white hanging skin” on his bottom.

        Mother denied starving the child, but she admitted to causing his death by neglecting
to take him to the doctor sooner, knowing he was underweight. Despite expert testimony
indicating that Clever should have received five routine physician checkups between birth
and six months of age, Mother testified that she had taken Clever to see a doctor a single
time, when he was eight days old. Mother claimed that the child was well until the day
before his death when he developed a cough, a rash, shortness of breath and some lethargy.
However, Dr. Lisa Piercey, an expert in child maltreatment and pediatrics, testified that
Clever’s condition “[a]bsolutely [could] not” have developed in a single day. Instead, she
testified that his degree of weight loss “would have taken several weeks, maybe even
months.” Dr. Piercey testified that Clever’s caretaker “absolutely” would have been aware
of his poor condition. She stated, “Any competent adult that was around this infant would
have readily recognized that there was something not right about this infant at all. . . .
[A]nybody that had direct contact with this baby as far as handling the baby, this baby would
feel like a bag of bones.” When questioned regarding the risk of allowing Clever’s
caretakers to care for other children, she responded, “Obviously any caretaker that has
knowingly let a child starve and suffer a long, slow, and excruciating death I would be very
hesitant to allow any child in that caregiver’s presence.” She stated it would be “very
unlikely” that Clever’s caregiver could provide appropriate care for older children.

       At the time of trial, Stephaun, Tyler, and Ryan were ages five, three, and twenty-one
months, respectively. Stephaun and Tyler had been in foster care for over two years, and
Ryan had been in foster care since birth. All three were in the same foster home and had
been in that home since coming into DCS custody.

        The boys’ foster mother testified that the boys do not ask about Mother and they have
not seen her since entering DCS custody. She stated that the children have blended into her
family, which includes two older children, as well as into her church family. She testified
that she and her husband wish to adopt the children and that they are able to meet the
children’s financial, educational, medical, emotional, and psychological needs. The foster
mother stated that if the children were removed, “it would be very devastating to them and
to us.”

       A DCS family service worker similarly testified that Mother has no meaningful
relationship with the children and that the children “are very attached and bonded to the
foster parents” whom they refer to as “Mom and Dad.” She stated that the children are
blended into their foster family “[j]ust as if they were born to that family.” The family
service worker indicated that when Stephaun entered DCS custody at three years old, he was
completely non-verbal. However, he had since been identified as having a learning

                                             -6-
disability, he had enrolled in Head Start and speech therapy, and he could now speak in
complete sentences. The family service worker testified that Tyler and Ryan were also
developing appropriately. She expressed her opinion that a change of caretakers would have
a negative effect upon the children.

        At trial, Mother admitted that she has a history of drug abuse and she confirmed that,
because of her perpetration of Clever’s death, she would not be released from prison for at
least fifteen years. She acknowledged that her incarceration prevented her from being able
to care for the children and she agreed that it is in the children’s best interest to be with a
permanent family who can provide stability and meet the children’s medical, financial and
educational needs. In fact, she testified, “I know that they’re in [a] very good place. They’re
being well taken care of. . . . I’m very happy about where my children are right now.”
However, she stated, “I don’t feel that a termination would be in their best interest because
I do love my children. I admit I made some faults. I neglected to do some things. But as far
as me just not caring about them and the fact that I don’t love them would both be a lie. I
want to be in my kids life [sic]. And I want them to know who their mother is.”

       In her appellate brief, Mother makes a concise argument regarding the trial court’s
best interest determination. She argues that DCS failed to prove by clear and convincing
evidence that termination is in the children’s best interest. In support of this argument, she
points only to her trial testimony in which she acknowledged her past mistakes and in which
she emphasized her love for the children and her belief that they should know their mother.

       Frankly, we find it hard to imagine that DCS could have presented clearer or more
convincing evidence that termination of Mother’s parental rights is in the best interest of
these children. Mother allowed the children’s brother to starve to death and because of her
incarceration for second degree murder of the child, she has no relationship whatsoever with
the children and she will be unable to care for them for at least fifteen years. In contrast, the
children have lived together with their pre-adoptive foster family for essentially their entire
lives where they are developing appropriately and from where removal would be detrimental.
Based upon the overwhelming evidence before us, we affirm the trial court’s best interest
finding, and thus, its termination of Mother’s parental rights.




                                               -7-
                                     IV.   C ONCLUSION

        For the aforementioned reasons, we affirm the trial court’s best interest finding, and
thus, its termination of Mother’s parental rights. Costs of this appeal are taxed to Appellant,
Stephanie M., and her surety, for which execution may issue if necessary.

                                                    _________________________________
                                                    ALAN E. HIGHERS, P.J., W.S.




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