                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                             Assigned on Briefs February 09, 2015

                                           IN RE EVE C. 1

                  Appeal from the Juvenile Court for Rutherford County
                     No. TC2340      Donna Scott Davenport, Judge



                    No. M2014-01420-COA-R3-PT – Filed April 29, 2015



Mother, whose daughter was placed in custody of the Department of Children‟s Services
at birth, appeals the termination of her parental rights on grounds of substantial non-
compliance with the permanency plans and persistence of conditions. Finding no error,
we affirm the termination of Mother‟s rights.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P. J., M. S., and W. NEAL MCBRAYER, J. joined.

Carla Kent Ford, Murfreesboro, Tennessee, for the appellant, Jenine M. C.

Herbert H. Slatery, III, Attorney General and Reporter; and Mary Byrd Ferrara, Assistant
Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee Department
of Children‟s Services.

                                                OPINION

       Eve C. was born in August, 2011 to Jenine M. C. (“Mother”) and Fortunato C.
(“Father”); she was born at Vanderbilt Medical Center with a heart condition that
required open heart surgery shortly after birth and constant monitoring and care during
her stay at Vanderbilt and following her release. Three other children of Mother and
Father had been removed from the family home and were in the custody of the
Department of Children‟s Services (“DCS”) at the time of Eve‟s birth. The day after her

1
  This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
birth DCS received a referral raising concerns regarding the ability of Mother and Father
to care for Eve and subsequently initiated a proceeding in Rutherford County Juvenile
Court to have her declared dependent and neglected due to her medically fragile
condition and the inability of Mother and Father to care for her. On September 20 the
court entered a Protective Custody Order giving DCS temporary custody of Eve, and on
November 16 the court entered an order approving a permanency plan for the four
children.2 Additional permanency plans were prepared on April 13, 2012, September 24,
2012, January 22, 2013, and August 22, 2013; each plan was approved by the court.

        The permanency plans required Mother and Father to participate in a parenting
assessment; complete a psychological evaluation and follow recommendations; complete
anger management sessions; attend the children‟s medical appointments; develop and
demonstrate appropriate parenting skills; regularly visit the children; provide a safe,
stable, and clean home; and demonstrate financial stability and maintain a budget. As
respects Eve‟s special needs, the plans required Mother and Father to: demonstrate the
skills needed to monitor, track, adjust and administer treatments and care for Eve and
otherwise show that they could consistently meet her needs; take all opportunities offered
and independently seek out ways to learn how to care for her; and keep a clean, neat
home free from health hazards or health concerns.

      On October 2, 2013, DCS filed a Petition for Termination of Parental Rights and
for Order of Full Guardianship, seeking to terminate Mother and Father‟s parental rights
to Eve on the grounds of substantial noncompliance with the permanency plans (Tenn.
Code Ann. § 36-1-113(g)(2)) and persistence of conditions (Tenn. Code Ann. § 36-1-
113(g)(3)). Guardians ad litem were appointed for Eve and for Mother, and CASA was
appointed special advocate for Eve; counsel was appointed Mother and Father.

       A trial was held before the Juvenile Court of Rutherford County on seven days
between March 12 and April 15, 2014.3 The court heard testimony from Charles H.,
Mother‟s paramour; Amanda G., Eve‟s physical therapist; Ashley P., Eve‟s occupational
therapist; Trisha H., Eve‟s speech and feeding therapist; Meredith W., family services
worker with DCS; Courtney H., an LPN; Ebony L., Eve‟s DCS case manager; Amanda P,
Lisa S., Hillard H., and Lori T., employees of Kids First, an agency which provided
various services to Mother and Father; Gwen L., the children‟s resource parent; Rick H.,
home care nurse; and Mother. On May 19 the court announced its ruling from the bench,

2
  Eve was placed in the resource home in which Mother and Father‟s other children were living; the four
children have remained in the home throughout these proceedings. The parental rights to the other
children are not at issue in this appeal.
3
  Father surrendered his parental rights on the first day of trial; consequently, his parental rights are not at
issue in this appeal.
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and on June 20 entered an order terminating Mother‟s parental rights to Eve on the
grounds of substantial non-compliance with the permanency plans and persistence of
conditions; the court also found that termination of Mother‟s rights was in Eve‟s best
interest.

      Mother appeals the termination of her rights, contending that she did not receive
necessary assistance from DCS to allow her to comply with the permanency plans.

I. STANDARD OF REVIEW

        A parent has a fundamental right to the care, custody, and control of his or her
child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921
S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if
there is a compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky
v. Kramer, 455 U.S. 745 (1982)). Our termination statues identify “those situations in
which the state‟s interest in the welfare of a child justifies interference with a parent‟s
constitutional rights by setting forth grounds on which termination proceedings can be
brought.” In re W.B., 2005 WL 1021618, at *7 (citing Tenn. Code Ann. § 36-1-113(g)).
A party seeking to terminate the parental rights of a biological parent must prove at least
one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(g); In re
D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). Secondly, the party must prove that termination of the parental rights of the
biological parent is in the child‟s best interest. Tenn. Code Ann. § 36-1-113(c)(2).

       Because of the fundamental nature of the parent‟s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 766–69; In re M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998). Thus, both the grounds for termination and the
best interest inquiry must be established by clear and convincing evidence. Tenn. Code
Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. In light of the heightened
standard of proof in these cases, a reviewing court must adapt the customary standard of
review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct.
App. 2004). As to the court‟s findings of fact, our review is de novo with a presumption
of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements necessary to terminate parental rights. Id.




                                             3
II. SUBSTANTIAL NON-COMPLIANCE

        Tennessee Code Annotated ' 36-1-113(g)(2) authorizes termination of parental
rights for failure to comply with a permanency plan as follows:

      (2) There has been substantial noncompliance by the parent or guardian
      with the statement of responsibilities in a permanency plan or a plan of care
      pursuant to the provisions of title 37, chapter 2, part 4;

        The standards to be applied by courts in considering termination of parental rights
cases based on noncompliance with permanency plans, as well as our review of such
cases, were discussed by the Supreme Court in In re Valentine. The trial court must find
that the requirements of the permanency plan that the parent allegedly did not satisfy are
Areasonable and related to remedying the conditions which necessitate foster care
placement.@ In re Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. ' 37-2-
403(a)(2)(C)). Noncompliance with requirements in a permanency plan that are neither
reasonable nor related to remedying the conditions that led to the removal of the child
from the parent=s custody is not relevant for purposes of Tenn. Code Ann. ' 36-1-
113(g)(2). In re S.H., No. M2007-01718-COA-R3-PT, 2008 WL 1901118, at *7 (Tenn.
Ct. App. Apr. 30, 2008) (no Tenn. R. App. P.11 application filed). In addition, for
noncompliance to justify the termination of parental rights, it must be Asubstantial@; mere
technical noncompliance by itself is not sufficient to justify the termination of parental
rights. Id. Also, the parent=s degree of noncompliance with a reasonable and related
requirement must be assessed. Id. The issue of substantial noncompliance with the
requirements of a permanency plan is a question of law; therefore, it is reviewed de novo
with no presumption of correctness. In re Valentine, 79 S.W.3d at 546.

       The court recounted the testimony of the witnesses, particularly the testimony
relating to Eve‟s particularized medical needs and the importance of Mother‟s being able
to demonstrate the ability to provide for those needs. The court made a specific finding
that DCS provided “Herculean efforts and services, including . . . multiple evaluations,
independent counseling, therapeutic visitation, financial assistance . . . case management
services throughout the two and half years of State Custody[,] facilitated services and
assessments[,] and held numerous Child and Family team meetings.” The court noted
that Kids First provided therapeutic visitation, including having Rich H. and Courtney H.
participate in the therapeutic visitation with Mother and assist in demonstrating to Mother
how to care for Eve‟s special needs. Having reviewed the evidence, we agree with the
court‟s factual findings, including the findings that the services provided by DCS were




                                            4
appropriate for the situation presented.4 While Mother argues that DCS did not provide
Mother all she needed in order to comply with the responsibilities and to accomplish the
desired outcomes under the permanency plans, the evidence clearly shows that DCS‟
assistance was well in excess of what is required.5

          As to Mother‟s compliance with the permanency plans, the court held:

                 Mother, as stated in the findings of fact, is in substantial non-
          compliance with the permanency plans admitted as exhibits at the trial of
          this matter. Mother was aware of the requirements of the permanency
          plans. Pursuant to the findings of fact DCS made reasonable efforts to
          assist the Mother in the completion of her tasks and responsibilities,
          including the desired outcomes and action steps in furtherance of the same.

                 Therefore based upon all of the aforementioned, the evidence
          presented, the Exhibits presented, and the other findings herein, the Court
          finds, by clear and convincing evidence, finding in fact and by conclusions
          of law, that the Ground of Substantial Noncompliance with the Permanency
          Plan, pursuant to T.C.A. § 36-1-113(g)(2) and T.C.A. 37-2-403, etc., per
          the evidence, testimony and proof admitted, does exist against the Mother,
          [], and that her parental rights should therefore be terminated to the Child,
          Eve [C.]. Therefore finding that the State has proven/established, by clear
          and convincing evidence, a Ground for the termination of the Mother‟s
          parental rights to the Child, Eve.

4
    The court held:

          Per the findings of fact and applying the applicable statutory authority, specifically Tenn.
          Code Ann. §36-1-113(g)(2) and T.C.A. § 37-2-403, etc., the Court finds that the
          requirements and statement of responsibilities under the permanency plans for the Mother
          were clearly reasonable and related to remedying the conditions that warranted and
          necessitated the continued need for foster care for the Child, Eve. The goals and
          requirements of the plan were reasonably related to addressing the need for foster care.
5
  In In re Giorgianna H., 205 S.W.3d 508 (Tenn. Ct. App. 2006), this court explained what is required of
the Department of Children‟s Services in providing assistance to families facing challenges similar to
those presented here:

          While the Department‟s efforts need not be „herculean‟, the Department must do more
          than simply provide the parents with a list of services and send them on their way. . . .
          The Department‟s employees must use their superior insight and training to assist the
          parents in addressing and completing the tasks identified in the permanency plan. . . .

205 S.W.3d at 519 (citations and footnotes omitted). See also Tenn. Code. Ann. § 37-1-166(g)(1).
                                                       5
In its oral ruling and in the order terminating Mother‟s rights the court made extensive
findings of fact. Significant in our de novo review of those findings is the court‟s adverse
credibility finding as to Mother and the determination of weight to be given her
testimony.6

       The evidence in the record clearly shows that Mother understood the requirements
outlined in the permanency plans, as well as the Criteria & Procedures for Termination of
Parental Rights, understood the consequences of her failure to comply, and made
attempts to comply with some of the requirements. What is equally clear is that, as found
by the court, Mother was not able to acquire and exhibit the skills to take care of Eve
which were integral to the permanency plans. The evidence shows that, in the two years
since Eve‟s birth, Mother failed to accomplish the objectives of the permanency plans,
which were specifically directed toward addressing the conditions that led to Eve‟s
placement in DCS custody and to address the necessity of providing for her medical
needs. The evidence cited by Mother does not preponderate against the findings of the
court; the entire evidence clearly and convincingly supports the court‟s holding that
Mother was in substantial non-compliance with the requirements of the permanency
plans.




6
    The order recites:

                  Regarding credibility the Court finds that [Mother] has lost all credibility with
          this Court. Mother has lied to the Department. She hasn‟t kept the clerk or this Court
          informed of her correct address, misleading this Court and the parties that she was still
          residing with her husband [Father] when in fact she was residing with her paramour
          across the street from the marital home . . . . Mother admitted in this matter that she
          misled the Court in her prior testimony because Father told her to; so there were domestic
          violence issues that she lied about. There were issues about this boyfriend/paramour that
          she lied about that were very evident in the proceedings, that she misled the Department
          and this Court, as well as to what she was doing in her life and trying to fight for Eve.
          That her credibility is zero with this Court due to all of the inconsistencies that we found
          in her testimony and her deceit to the Department and to the Court about her life
          especially from that June 2013 date forward. Mother for 3 to 4 months beginning June,
          2013 was basically living two lives, the one where she is living with her paramour and
          the other life where she had led everyone, DCS, the Court, etc., to believe with her
          husband. Therefore the Court finds, finding in fact and by conclusions of law, by clear
          and convincing evidence a lack of credibility as to the Mother. Accordingly the Court
          gives greater weight to the witnesses of the State and less weight to the Mother‟s
          testimony and the testimony of her paramour.

The evidence supports the court‟s findings and Mother does not take issue with the court‟s credibility
determination.
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III. PERSISTENCE OF CONDITIONS

       Parental rights may be terminated on the basis of Apersistence of conditions@ as
defined by Tenn. Code Ann. ' 36-1-113(g) (3)(A) when:

       The child has been removed from the home of the parent or guardian by
       order of a court for a period of six (6) months and:

       (A) The conditions that led to the child‟s removal or other conditions that in
       all reasonable probability would cause the child to be subjected to further
       abuse or neglect and that, therefore, prevent the child's safe return to the
       care of the parent(s) or guardian(s), still persist;

       (B) There is little likelihood that these conditions will be remedied at an
       early date so that the child can be safely returned to the parent(s) or
       guardian(s) in the near future; and

       (C) The continuation of the parent or guardian and child relationship
       greatly diminishes the child‟s chances of early integration into a safe, stable
       and permanent home;

A termination proceeding based on the persistence of conditions ground requires a
finding by clear and convincing evidence of all three statutory factors. In re Valentine, 79
S.W.3d at 549.

        The trial court‟s determination that the conditions which led to Eve‟s placement
with DCS as well as other conditions which indicated the potential for neglect persisted
was based in large part on many of the factors discussed above relative to Mother‟s
inability in the two years since Eve‟s birth to create a home environment conducive to
reunification with Eve and to acquire and demonstrate the skills necessary to address
Eve‟s medical needs. We agree with the trial court that Mother‟s lack of progress in
addressing these deficiencies also shows that the conditions persisted, within the meaning
of Tenn. Code Ann. ' 36-1-113(g)(3)(A). Significant also is the fact that, by the time of
trial, Mother had left her husband and was living with her paramour, who was providing
for her financial needs; Mother offered no evidence that she had any other means of
support.

       Mother contends that this ground should not be sustained because there were no
actions on her part that resulted in the finding of dependent and neglect, which led to
Eve‟s placement in DCS custody; she argues that the removal “was based solely in there
                                              7
not being two (2) people who could be trained by Vanderbilt prior to the minor child
leaving the hospital.” Contrary to her insistence, the record shows that many other
conditions led to the initial referral to DCS following Eve‟s birth and that other
conditions, particularly the turbulent relationship between Mother and Father which
resulted in the three older children being removed, had the potential to subject Eve to
neglect. The preponderance of the evidence fully supports the holding that the conditions
persisted and would not be remedied.

IV. BEST INTEREST

        Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is the best interest of the child for the
parent=s rights to be terminated, again using the clear and convincing evidence standard.
The legislature has set out a list of factors at Tenn. Code Ann. ' 36-1-113(i) for the courts
to follow in determining the child=s best interest.7 The list of factors in the statute is not
exhaustive, and the statute does not require every factor to appear before a court can find

       7
           The factors at Tenn. Code Ann. ' 36-1-113(i) are:

       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;
       (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.
                                                      8
that termination is in a child=s best interest. See In re S.L.A., 223 S.W.3d 295, 301 (Tenn.
Ct. App. 2006) (citing Tenn. Dep=t of Children=s Servs. v. T.S.W., No. M2001-01735-
COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No.
E2006-00746-COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).

       The trial court made extensive findings in holding that termination of Mother‟s
parental rights was in Eve‟s best interest; Mother does not contest that holding on appeal.
We have reviewed the proof and have determined that the court properly considered the
statutory factors and that the evidence cited by the court clearly and convincingly
establishes that termination of Mother‟s parental rights is in Eve‟s best interest and will
allow her to receive the stability and attention to her medical condition that she needs.

V. CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.



                                                 ________________________________
                                                 RICHARD H. DINKINS, JUDGE




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