                                                                                                      09/27/2018
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                               Assigned on Briefs June 5, 2018

                                            IN RE E.M.

                     Appeal from the Circuit Court for Greene County
                        No. CC-17-CV53 Alex E. Pearson, Judge
                        ___________________________________

                               No. E2017-02304-COA-R3-PT
                          ___________________________________

The Department of Children’s Services filed a petition to terminate the parental rights of
L.B.M. (mother) and J.W.H. (father) with respect to their only child, E.M. The trial court
found clear and convincing evidence for terminating mother’s rights on the ground of
severe child abuse.1 By the same quantum of proof, the court found that termination of
mother’s rights is in the best interest of the child. Mother appeals the trial court’s order
terminating her rights. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS and KENNY W. ARMSTRONG, JJ., joined.

Whittney N.L. Good, Bulls Gap, Tennessee, for the appellant, L.B.M.

Herbert H. Slatery III, Attorney General and Reporter, and W. Derek Green, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

                                             OPINION

                                                   I.

      Although present at the termination hearing, mother neither testified nor called any
witnesses. Therefore, the following statement of facts is largely derived from the
uncontradicted testimony of witnesses called by DCS.

        1
          The court found multiple grounds for terminating father’s rights and further determined that
termination of his rights is in the best interest of the child. Father does not appeal the court’s order
terminating his rights.
       On May 31, 2016, Detectives Chuck Humphreys and Buddy Randolph of the
Greene County Sheriff’s Department arrived at mother’s home to conduct a welfare
check. When they arrived, they observed emergency medical services already at the
scene. Detective Humphreys testified that he encountered the child, mother, and a few
other family members. According to Detective Humphreys, the child had burns on his
hands and feet. Although mother would not discuss the child’s burns, all other witnesses
at the scene provided written statements. Based on his investigation, Detective
Humphreys arrested mother and charged her with aggravated child abuse.2

       Russell Clark, an investigator with Greene County Child Protective Services, also
responded to the scene. Mr. Clark testified that when he asked mother about the cause of
the child’s burns, she said the child fell into a fire. According to Mr. Clark, mother
claimed to have taken the child to Takoma Regional Hospital. Later that afternoon,
however, Takoma informed Mr. Clark that it did not have records reflecting that the child
was ever admitted. When Mr. Clark confronted mother with that information, she simply
reasserted her claim and stated that she threw away the paperwork she received from the
hospital visit. She also provided additional details about the cause of the burns.
According to mother, two weeks prior to her arrest the child had fallen off her bed,
stepped on a hot hair-straightening iron and then picked it up with his right hand.3 Then,
about one week later, mother said that the child burned his left hand by falling into a
campfire.

       Emergency responders transported the child to Johnson City Medical Center.
Tessa Proffitt, a registered nurse who serves as the coordinator of the hospital’s forensic
program, examined the child and took photographs of his injuries. She later testified as
an expert witness on behalf of DCS. According to Ms. Proffitt, the child had second-
degree burns on both of his hands and another burn on the bottom of his right foot. She
described the burns as “pretty significant in size” and remarked that the “scabbing is very
deep.” The child’s left hand had burns on the palmar side of the hand extending from the
webbing of his fingers down past his wrist. The child’s right hand was burned on the
pinky finger, ring finger, and part of the thumb. The burn on the thumb was linear in
shape. The sole of the child’s right foot contained a circular-shaped burn.

       When asked whether it was possible that a straightening or curling iron caused any
of the burns, Ms. Proffitt replied, “I don’t foresee it being one of those things, especially
on the left hand because of the webbing.” She explained that if the child had picked up a
        2
         The detective also charged mother with possession of drug paraphernalia, but mother was never
prosecuted for that charge.
        3
          Some evidence in the record suggests that the alleged cause of the child’s burn was a curling
iron, rather than a hair-straightening iron. The trial court determined that the difference between the two
objects was insignificant.

                                                   -2-
straightening or curling iron, he would most likely have a linear, patterned burn across his
palm. The burn on the child’s left hand, however, was neither linear nor patterned; it also
extended from the webbing of his fingers down to his wrist. The right hand had a linear
burn on the thumb, but there were no burns on the palm. The burn on the child’s foot
was circular, rather than linear.

       With respect to the alleged campfire incident, Ms. Proffitt said she would expect
to see “burns to the forearms, to the chest, to the face, to the neck and the child didn’t
have those injuries.” She did admit that it was “possible” that the burn on the sole of the
child’s right foot was caused by stepping on a hot coal. Ultimately, however, Ms. Proffitt
concluded that she “would have to have more information about how the child would
have fallen.”

       Finally, Ms. Proffitt testified that the child would “absolutely” have been in pain
and that he would have required pain medication, such as prescription burn cream. She
also emphasized that because infants have naturally unsanitary habits (such as sticking
their hands in their mouths), there was an increased risk of the child developing an
infection if the burns were left untreated.

       On June 1, 2016, the child was taken to his primary care physician, Dr. Timothy
Fuller. In a deposition, Dr. Fuller testified that the child’s weight had significantly
declined since his previous nine-month visit. The child weighed less than nineteen
pounds, which placed him slightly below the third percentile. Dr. Fuller ruled out the
possibility of disease and opined that the child’s weight loss was due to “poor oral [food]
intake, consistent with neglect.”

       Based on these facts, DCS filed a Petition for Order Controlling Conduct and For
Protective Supervision in the Greene County Juvenile Court. On June 2, 2016, the
juvenile court entered an order granting DCS temporary custody of the child. About one
month later, DCS filed a motion for severe abuse. After conducting two hearings, the
juvenile court entered an order declaring the child to be dependent and neglected and
severely abused by mother. The decision of the juvenile court was appealed to the
Greene County Circuit Court.

       On February 7, 2017, DCS filed a petition to terminate parental rights as well as a
motion to consolidate that petition with the appeal from the juvenile court. The trial court
granted the motion to consolidate the cases. During the pendency of the termination
proceedings, mother pled guilty to attempted aggravated child abuse. The plea agreement
provided for a fifteen-year sentence with parole eligibility after serving thirty percent of
the sentence. After three days of hearings on the petition to terminate, the trial court
entered an order terminating mother’s parental rights on the ground of severe child abuse.
On November 14, 2017, the court entered an order that slightly amended its previous
termination order. Mother appealed.
                                            -3-
                                            II.

       Mother raises the following issues, which we restate slightly:

              Whether the trial court erred in finding clear and convincing
              evidence to terminate mother’s parental rights on the ground
              of severe child abuse.

              Whether the trial court erred in finding that clear and
              convincing evidence supports a finding that the termination of
              mother’s rights is in the best interest of the 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) (2017). Because
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), 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
                                             -4-
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
these findings on appeal.”).

      The Tennessee 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.

      Tenn. Code Ann. § 36-1-113(g)(4) (2017) (amended 2018) provides for
termination of parental rights when “[t]he parent or guardian has been found to have
committed severe child abuse . . . .” Our legislature has defined “severe child abuse” to
                                          -5-
include:

                [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 and the knowing use of force on
                a child that is likely to cause serious bodily injury or death;

Tenn. Code Ann. § 37-1-102(22)(A)(i) (2017) (emphasis added). Another statute
provides that “ ‘[s]erious bodily injury to the child’ includes, but is not limited to,
second- or third-degree burns . . . .” Tenn. Code Ann. § 39-15-402(d) (Supp. 2017)
(emphasis added).

       In this case, the trial court concluded that clear and convincing evidence supported
termination on the ground of severe child abuse, as defined by the aforementioned
statutes. The court stated that it considered the testimony of Dr. Fuller, the photographs
of the child’s injuries, the testimony of Tessa Proffitt, and the guilty plea to attempted
aggravated child abuse. Based on that evidence, the court made the following factual
findings: “there were second degree burns on the child,” “any second degree burn is
going to hurt whether you are a child or not,” “the explanations that were provided to the
detective and to DCS about how those burns happened were not consistent with the
burns,” and “the records [from Takoma Regional Hospital] were not provided because
they do not exist.”

       The court concluded that if the child was truly injured in the manner alleged by the
mother, then mother committed severe child abuse because she knowingly failed to
protect the child from serious bodily injury. The court relied upon mother’s guilty plea to
attempted aggravated child abuse to support its conclusion that mother’s failure to protect
the child was “knowing.”4 The court also found it “most telling” that mother never
sought any treatment for the child’s burns in spite of the fact that the child must have
been in pain.

       Mother’s brief includes one, short paragraph concerning the trial court’s finding of
severe child abuse. The paragraph simply observes that “[t]he burns were not infected”

        4
          With regard to the guilty plea, the court stated that “an attempted aggravated child abuse cannot
be an accident.” The court acknowledged that

                there are different ways in which one can have an attempt, one of which
                is to help, aid, assist or attempt to aid somebody else in the commission
                of a crime . . . . [N]onetheless, a Class B felony pled outside the range for
                15 years at 30 percent is a substantial extent, and a Class B felony is a
                substantial crime, and that is something that weighs heavily on the
                Court’s mind.

                                                   -6-
and that “Dr. Fuller testified that second degree burns rarely leave scars, and further that
the child would have full use of his hands.” Mother also misconstrues the evidence by
stating that “Ms. Tessa Proffitt testified that on the foot, she was unable to say if it was a
burn or an abrasion that was healing.” (In fact, Ms. Proffitt’s confusion related to a mark
on the top of the child’s right foot. She was certain that there was a burn on the bottom of
his right foot.) Mother’s attempts to minimize the child’s injuries are not persuasive.
The evidence preponderates in favor of the trial court’s findings that the child sustained
second-degree burns, that those burns caused the child pain, and that mother failed to
seek the appropriate treatment in spite of the child’s pain and risk of infection.

       We now consider whether the facts found by the trial court clearly and
convincingly support termination on the ground of severe child abuse. First of all,
second-degree burns clearly fall within the statutory definition of “serious bodily injury.”
Tenn. Code Ann. § 39-15-402(d). The dispositive question, therefore, is whether the
facts as found by the trial court support the legal conclusion that mother knowingly failed
to protect the child. Tenn. Code Ann. § 37-1-102(22)(A)(i). In a prior termination of
parental rights case, we held that

              a person acts or fails to act “knowingly,” when he or she has
              actual knowledge of the relevant facts and circumstances or
              when he or she is either in deliberate ignorance of or in
              reckless disregard of the information that has been presented
              to him or her.

In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at *7 (Tenn. Ct. App.,
filed July 13, 2004).

        Even accepting mother’s version of events as true, it is clear that the child
sustained the injuries while in the presence of the mother. That circumstantial evidence
is sufficient to conclude that mother had “actual knowledge” of the relevant dangers to
the child (i.e., the presence of the straightening or curling iron and the campfire). The
fact that the child was severely burned on two separate occasions within a one-week
period strongly suggests that mother recklessly disregarded those known dangers.
Moreover, mother also failed to alleviate the child’s ongoing pain by refusing to seek
appropriate medical treatment. We hold as a matter of law that these facts clearly and
convincingly support termination on the ground of severe child abuse.

                                             V.

                                             A.

     Because at least one statutory ground warrants the termination of mother’s rights,
we now focus on whether termination is in the best interest of E.M. We are guided by the
                                         -7-
statutory factors set forth in Tenn. Code Ann. § 36-1-113(i) (2017), 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;

             (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
                                          -8-
                (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.

      The trial court expressly considered the best interest factors listed above. The
court determined that factors (4), (5), and (6) weighed in favor of a finding that
termination of mother’s rights was in the best interest of the child.5

       With respect to factor (4), the court noted that, as a result of her incarceration,
mother has not seen the child in over a year, making the development of a meaningful
relationship impossible. Mother counters by arguing that she was “the primary caregiver
and custodian for the minor child up until his removal” and that she developed a
meaningful relationship with the child during that time.

       We agree with the trial court that factor (4) weighs in favor of termination.
Shortly after mother’s arrest on May 31, 2016, a no-contact order was entered that
prohibited mother from seeing the child. Although one DCS employee testified that
mother frequently asked how the child was doing, there is no evidence that the no-contact
order was ever lifted or that mother has seen the child since her arrest. Mother’s
counterargument is not persuasive because prior to her arrest, mother was responsible for
severe child abuse and the child’s malnutrition. Accordingly, the trial court correctly
found that factor (4) weighs in favor of termination.

      The court found that factor (5) weighed in favor of termination because of “the
uncontroverted testimony [that] the child is doing well in his present foster home.”
Mother argues that this factor does not weigh in favor of termination because the child

        5
          In her brief, mother argues that because she was incarcerated the court should not find that
factors (1), (2), and (3) weigh in favor of termination. We find it unnecessary to address that argument
because a careful reading of the trial court’s order reveals that the court only considered factors (4), (5),
and (6) to weigh in favor of terminating mother’s rights.
                                                   -9-
had only been in his current foster care placement for two months prior to the termination
order. The preponderance of evidence, however, supports the trial court’s finding. A
DCS caseworker testified, without contradiction, that the child was “doing very well” in
his current foster home and that his current foster parents hope to adopt him. The
caseworker also emphasized the child’s rapid improvement in the new foster home:

              [E.M.] is doing great in the new foster home. He’s been there
              for approximately going on two months. He is thriving. He
              is learning about the communication skills over what he had.
              He is in a new daycare at the church that the family goes to.
              The family has him in the community. They’ve had family in
              different states. So they like to keep him in a very family-
              oriented area. He has changed so much just in these couple of
              months even from the previous foster home. He is just
              opening up. He is just – I can’t tell you how great he is doing
              there.

The child’s guardian ad litem similarly stated that “the child is very bonded to the current
custodians. He’s in a good spot, and based on everything that has been testified to in the
last three hearings, it would be in his best interest if the parents’ parental rights were
terminated and he could move forward to permanency.” Given this uncontradicted
testimony, we conclude that the trial court correctly found that factor (5) weighs in favor
of termination.

       The trial court found that factor (6) weighed in favor of termination because of the
court’s factual findings that mother was guilty of severe child abuse as well as the child’s
malnutrition. On appeal, mother simply “submits that there was no severe abuse
committed by [mother].” For the reasons set forth in Part IV of this opinion, we do not
accept mother’s conclusory assertion. The trial court correctly concluded that factor (6)
weighs in favor of termination.

       Because factors (4), (5), and (6) all heavily weigh in favor of termination, and
because the other factors are either neutral or inapplicable, we hold as a matter of law that
there is clear and convincing evidence that termination of mother’s parental rights is in
the best interest of E.M.




                                           - 10 -
                                            VI.

        The judgment of the trial court is affirmed. The costs on appeal are assessed to the
appellant, L.B.M. This case is remanded, pursuant to applicable law, for enforcement of
the trial court’s judgment and collection of costs assessed below.



                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                           - 11 -
