               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             September 29, 2015 Session

                          IN RE: KAEDINCE M., ET AL.

                  Appeal from the Juvenile Court for Knox County
                      No. 105930    Timothy E. Irwin, Judge


             No. E2015-00763-COA-R3-PT-FILED-OCTOBER 19, 2015


This appeal concerns the termination of parental rights. The Tennessee Department of
Children’s Services (“DCS”) filed a petition in the Juvenile Court for Knox County (“the
Juvenile Court”) seeking to terminate the parental rights of Bridgetta M. (“Mother”) to
her minor children Greg S. and Kaedince M. (“the Children”). The Juvenile Court
terminated Mother’s parental rights to the Children on the grounds of wanton disregard
and severe abuse. Mother appeals to this Court arguing only that it is not in the
Children’s best interest for Mother’s parental rights to be terminated. We affirm the
judgment of the Juvenile Court.

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

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

Michael J. Stanuszek, Knoxville, Tennessee, for the appellant, Bridgetta M.

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

                                              Background

              Kaedince M. was born to Mother in March 2006. Kaedince, having been
found dependent and neglected as a result of Mother’s homelessness and drug abuse
issues, was placed with her maternal grandparents in 2009. Kaedince entered into state
custody in June 2014 after Mother and the grandparents violated a court order restricting
visitation by Mother. During this time, Mother whipped Kaedince to the point that she
was bruised and her face was lacerated. In May 2014, Mother pled guilty to child abuse
against Kaedince. Greg S. was born in October 2013 to Mother and Greg S., Sr. Mother
tested positive for cocaine while pregnant with Greg. Greg was found dependent and
neglected, and also was found to be a victim of severe abuse. Greg was placed with a
relative.1

                In September 2014, DCS filed a petition to terminate Mother’s parental
rights to the Children. This case was tried in February 2015. Mother had been
incarcerated twice, once in early 2014 and then later from June 2014 through November
2014. Mother completed an inpatient drug treatment program upon her release. As of
trial, Mother had been working full-time at Burger King for two weeks. Mother had
married Greg’s father, Greg S., Sr., by the time of trial. The two had been living together
for around six years. Mother also completed a parenting class in May 2014. Mother
testified that she had changed for the better. Both of the Children were thriving in foster
care.

             In March 2015, the Juvenile Court entered its detailed order terminating
Mother’s parental rights to the Children. The Juvenile Court stated in part:

                1. On April 16, 2009, Respondent’s mother filed a petition for
        custody of Kaedince alleging that Respondent was homeless and abusing
        drugs and that Respondent had left this child in the grandmother’s care
        most of her life. Following a hearing on June 23, 2009, this Court issued an
        order awarding full custody of the child to the maternal grandparents upon
        a finding of dependency and neglect due to Respondent’s “unresolved drug
        and alcohol abuse and lack of independent housing.” Among other things,
        the order required that Respondent’s visitation with the child be supervised;
        that in order to move to unsupervised visitation Respondent would have to
1
  We are affirming the termination of Greg S.’s father’s parental rights to Greg S. in a separate appeal
with a separate opinion to be filed concurrently with this opinion. The parental rights of Kaedince’s
father have, according to the Juvenile Court’s order, already been terminated and are not at issue on
appeal.
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show verification that she had completed an alcohol and drug assessment
and followed any recommendations given, had a legal source of income and
appropriate housing, and exercised consistent appropriate supervised.
        2. In the spring of 2013, the grandparents returned Kaedince to
Respondent’s care without the benefit of any court proceedings or proof.
The child had apparently been having behavior problems and the custodians
just decided it would be best to return her to her mother. Within a couple
weeks Kaedince was the victim of physical abuse at Respondent’s hands.
On June 12, 2013, the Department obtained an ex parte order prohibiting
any contact between Respondent and this child. That order was modified
on August 14, 2013, to allow visitation at Parent Place and to require that
Respondent submit to mental health and alcohol and drug assessments,
follow up with any treatment recommended, submit to random drug
screens, and complete parenting classes to learn appropriate discipline.
        3. On October 8, 2013, Respondent gave birth to Greg [S.], Jr.
Respondent had failed multiple drug screens for cocaine and marijuana
during her pregnancy. She had not received any mental health counseling.
Custody of that child was transferred temporarily to a maternal relative and
then to the Department of Children’s Services after the relative completed
the requirements for kinship foster care.
        4. Following a hearing on April 1, 2014, this Court found that Greg
[S.], Jr., was the victim of SEVERE ABUSE, as defined in TCA 37-1-
102(b)(23)(A) based on (a) the mother’s knowledge of the potential dangers
(including the risk of serious bodily injury or even death of the in utero
child) of continued illicit substance abuse during her pregnancy with this
child; and (b) despite that knowledge, the mother continued to abuse illicit
substance while pregnant with this child. In reaching this conclusion, the
Court relied on medical records establishing Respondent’s repeated positive
drug screens for cocaine during her pregnancy; warnings she received
regarding the danger of cocaine use during pregnancy; and the child’s
positive cord test for cocaine.
        5. In June 2014, the Department learned that Respondent was being
allowed unsupervised contact with Kaedince in repeated violation of this
Court’s orders. At that point custody of Kaedince was also awarded to the
Department of Children’s Services and the child was placed with her
brother. Following a hearing on June 16, 2014, this Court found, pursuant
to T.C.A. § 37-1-102(b)(23)(A), that Kaedince [M.] was a victim of severe
physical abuse by Respondent due to the extent of the injuries and the
location of the injuries inflicted on the child in May 2013. Specific
findings of fact included:

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               This Court previously found on June 23, 2009, that the
       child, Kaedince [M.], was dependent and neglected due to the
       mother’s unresolved substance abuse issues and ordered that
       the mother’s contact with the child be supervised by the
       child’s custodians (the maternal grandparents) or a third party
       the maternal grandparents designated.
               Near the end of April 2013, the maternal grandmother
       allowed Kaedince to reside with her mother due to behavior
       issues Kaedince was experiencing in school. On May 9, 2013,
       Kaedince was interviewed by Investigator Keith Johnson with
       the Knoxville Police Department and Child Protective
       Services Investigator Chermirra McGhee with the Tennessee
       Department of Children’s Services following a referral with
       allegations that Kaedince had been physically abused by her
       mother. During the interview, Kaedince disclosed that she
       had been living with her mother for eleven (11) days and that
       her mother had given her a “whooping” with a long, thick
       stick that came from a bush because she had gotten into
       trouble at school for getting out of her seat. Kaedince
       disclosed that her mother had whipped her on both of her
       arms, legs, and face and that the whipping had occurred the
       previous day. Injuries were observed on Kaedince’s face [a
       large gash approximately three (3) to four (4) inches long on
       the right side of her face and a small mark on the right side of
       her nose], both arms, and both legs [approximately ten (10) to
       fifteen (15) marks]. A scar is still visible on the child’s face.
               The mother was also interviewed and admitted that she
       had whipped Kaedince with a switch due to her behaviors at
       school. She stated that once she saw the scar on Kaedince’s
       face, she stopped whipping her and put ointment on it so that
       it would heal. The mother was arrested and convicted of child
       abuse arising from this incident.
       6. On March 13, 2014, Respondent entered a guilty plea to the
charge of child abuse and was granted judicial diversion for a probation
term of 364 days. She subsequently she [sic] failed a drug screen for
cocaine and her diversion was revoked. On May 2, 2014, she was
sentenced to “11/29” and released to probation on condition that she enter
and complete IOP treatment at Peninsula. She again failed to comply, her
probation was revoked, and she was taken back into custody on June 6,
2014. She remained incarcerated continuously until November 24, 2014.

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              7. Respondent was released from jail upon condition that she
      complete treatment at Buffalo Valley. She entered the program the next
      day and completed it. She testified that she had learned to identify her
      triggers (a bad environment and too much free time) and had made changes
      (getting a job at Burger King, hanging out with her mother, getting married
      to the man she’s lived with for the past 6 years). She began individual
      therapy at Peninsula, although she had not released those records to the
      Department of Children’s Services, and she asserted that she would be
      clean if screened on the day of trial. She had taken advantage of 4 out of 5
      Friday visits with her children after returning from Buffalo Valley and
      believed that she could develop a good relationship with them if allowed
      more time. According to Respondent, “I’ve changed for the better. I know
      what I did then was bad. I want to be there for my kids.”
              8. Upon these facts the Court finds that Respondent has been found
      to have committed severe abuse against each of these children. Those
      orders are final and that finding is uncontested.
              9. The Court further finds that Respondent was incarcerated when
      this petition was filed and that prior to her incarceration she engaged in
      conduct which exhibits a wanton disregard for the welfare of her children.
      As her mother testified, at that time it was “my way, not yours; it was all
      about her.” She physically abused one child, she exposed the second child
      to illicit drugs in utero, she ignored the orders of this Court, and then she
      twice failed to take advantage of the generosity of the Knox County
      Criminal Court by continuing to use drugs and ending up back in jail when
      she would otherwise have had the opportunity to remain in the community.

We next quote from that portion of the Juvenile Court’s order finding that it is in the
Children’s best interest for Mother’s parental rights to be terminated:

             1. This case, then, must be determined on the issue of best interest.
      The statutory factors this Court must consider are not a score card. Each
      factor does not get assigned a number of equal weight to be tallied. Has
      Respondent shown brutality, physical, sexual, emotional or psychological
      abuse, or neglect toward these children? Yes, she committed brutality and
      physical abuse toward these children in two different ways. Emotional and
      psychological abuse go along with that. And neglect. She may now be
      doing everything she’s been recommended to do but she has just begun.
      We don’t know yet whether her efforts will result in a “lasting” adjustment.
      She has visited her children 4 times since the beginning of this year but lost
      the opportunity to see them during her incarceration. Her son doesn’t know
      her at all, even preferring the company of the Department’s case manager.
                                           -5-
       That is understandable, given that his kinship foster mother is the only
       parent he has ever known and that he has seen the case manager on a
       regular basis. The Court was unable to find that the conditions that led to
       removal still persist, given the testimony that Respondent is clean today and
       has been sober since being incarcerated, but that sobriety can really only be
       measured since she left required treatment at the end of November 2014.
       Assuming she has made changes in her life, she made those changes way,
       way too late. This Court cannot take a chance on the welfare of these
       children after only two months.

Mother filed a timely appeal to this Court.

                                        Discussion

             Although not stated exactly as such, Mother raises one issue on appeal:
whether the Juvenile Court erred in finding that it is in the Children’s best interest for
Mother’s parental rights to be terminated.

              Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

               This Court must review findings of fact made by the trial court de
       novo upon the record “accompanied by a presumption of the correctness of
       the finding, unless the preponderance of the evidence is otherwise.” Tenn.
       R. App. P. 13(d). To 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 Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)
       (citing Tenn. Code Ann. § 36-1-113(c)). Upon reviewing a termination of
       parental rights, this Court’s duty, then, is to determine whether the trial
       court’s findings, made under a clear and convincing standard, are supported
       by a preponderance of the evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).

              In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

       It is well established that “parents have a fundamental right to the care,
       custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97
       (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct.
                                              -6-
      1208, 31 L. Ed. 2d 551 (1972)). “However, this right is not absolute and
      parental rights may be terminated if there is clear and convincing evidence
      justifying such termination under the applicable statute.” Id. (citing
      Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599
      (1982)).

             Termination of parental or guardianship rights must be based upon a
      finding by the court that: (1) the grounds for termination of parental or
      guardianship rights have been established by clear and convincing
      evidence; and (2) termination of the parent’s or guardian’s rights is in the
      best interests of the child. Tenn. Code Ann. § 36-1-113(c). Before a
      parent’s rights can be terminated, it must be shown that the parent is unfit
      or substantial harm to the child will result if parental rights are not
      terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A.,
      Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Similarly, before the
      court may inquire as to whether termination of parental rights is in the best
      interests of the child, the court must first determine that the grounds for
      termination have been established by clear and convincing evidence. Tenn.
      Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 WL
1660838, at *6 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear and
convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

             The following grounds for termination of parental rights are relevant in this
appeal. Tenn. Code Ann. § 36-1-102(1)(A)(iv) provides:

      (iv) A parent or guardian is incarcerated at the time of the institution of an
      action or proceeding to declare a child to be an abandoned child, or the
      parent or guardian has been incarcerated during all or part of the four (4)
      months immediately preceding the institution of such action or proceeding,
      and either has willfully failed to visit or has willfully failed to support or
      has willfully failed to make reasonable payments toward the support of the
      child for four (4) consecutive months immediately preceding such parent’s
      or guardian’s incarceration, or the parent or guardian has engaged in
      conduct prior to incarceration that exhibits a wanton disregard for the
      welfare of the child; . . . .

Tenn. Code Ann. § 36-1-102 (1)(A) (iv) (Supp. 2015).

                                           -7-
             In pertinent part, Tenn. Code Ann. § 36-1-113(g) provides:

      (4) The 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. § 36-1-113(g)(4) (Supp. 2015). As relevant, Tenn. Code Ann. § 37-1-
102 provides:

      (21) “Severe child abuse” means:

      (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 – 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;
                                           -8-
Tenn. Code Ann. § 37-1-102(b) (21) (2014).

             The following statutory factors are to be considered by courts when
determining whether termination of parental rights is in the child’s best interest:

      (i) 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 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 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;




                                             -9-
      (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.

Tenn. Code Ann. § 36-1-113 (i) (Supp. 2015).

              On appeal, Mother does not contest the grounds for termination of her
parental rights. We nevertheless have reviewed the grounds for termination. The
evidence in the record is clear and convincing that Mother’s pre-incarceration conduct
constituted wanton disregard for the welfare of the Children, and the severe abuse
findings against Mother are final and unchallenged. We find and hold that clear and
convincing evidence establishes the grounds of wanton disregard and severe abuse with
respect to Mother.

              We now address whether the Juvenile Court erred in finding that it is in the
Children’s best interest for Mother’s parental rights to be terminated. The crux of
Mother’s argument is that the Juvenile Court overlooked Mother’s improvement in
various areas and failed to properly weigh all of the best interest factors. As this Court
has noted:

              Ascertaining the child’s best interest in a termination proceeding is a
      fact intensive inquiry requiring the Court to weigh statutory factors as well
      as any other relevant factors. The child’s best interest must be viewed from
      the child’s, rather than the parent’s perspective.

             Ascertaining the child’s best interest does not call for rote
      examination of each of the factors in Tenn. Code Ann. § 36-1-113(i) and
      then a determination of whether the sum of the factors tips in favor of or
      against the parent. Depending upon the circumstances of a particular child
      and a particular parent the consideration of one factor may dictate the
      outcome of the analysis.

In re the Adoption of D.P.E., 271 S.W.3d 670, 676 (Tenn. Ct. App. 2008) (citations
omitted).

             We recognize that the evidence in the record is that Mother had obtained a
job and been sober for a short period of time at the time of trial. Nevertheless, the key
                                           -10-
phrase here is whether a “lasting adjustment” has been made. The Juvenile Court found
that, despite Mother’s late stage commendable gains, there was insufficient evidence that
the changes would hold. Likewise, we find that the record does not support a finding that
Mother has made a lasting adjustment in her lifestyle as the evidence is clear and
convincing otherwise. As found by the Juvenile Court, Mother’s efforts at this point
simply are too late.

               We emphasize that, at this stage of review in a parental rights case, with
grounds having been found for termination, the second question in the two-part process is
whether termination of parental rights is in the child’s best interest, not the parent’s best
interest. Decisions regarding the termination or preservation of parental rights are neither
a punishment to be meted out nor an award to be rendered to a parent. Even if a parent
has made a number of commendable changes to his or her lifestyle, this alone may not be
sufficient to establish that it is in the child’s best interest for the parent to retain his or her
parental rights, especially under circumstances such as those of the instant case where the
parent’s positive change in behavior occurs at the eleventh hour. See In re Johnny
J.E.M., No. E2011-02192-COA-R3-PT, 2012 WL 1929802, at *13 (Tenn. Ct. App. May
29, 2012), Rule 11 appl. perm. appeal denied August 22, 2012. In the meantime, the
evidence in the record on appeal is clear and convincing that the Children are thriving in
foster care. A change of caretaker at this point likely would prove detrimental to the
Children’s best interest.

             We find and hold, as did the Juvenile Court, that clear and convincing
evidence establishes the grounds of wanton disregard and severe child abuse in order to
terminate Mother’s parental rights to the Children, and the evidence is clear and
convincing that termination of Mother’s parental rights is in the Children’s best interest.
We affirm the judgment of the Juvenile Court terminating Mother’s parental rights to the
Children.

                                          Conclusion

              The judgment of the Juvenile Court is affirmed, and this cause is remanded
to the Juvenile Court for collection of the costs below. The costs on appeal are assessed
against the Appellant, Bridgetta M., and her surety, if any.



                                                      _________________________________
                                                      D. MICHAEL SWINEY, JUDGE



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