                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                               Assigned on Briefs March 4, 2014

                                  In RE ALEXANDER J. G.1

                 Appeal from the Juvenile Court for Montgomery County
                     No. TPCV125144       Kenneth R. Goble, Judge




                     No. M2013-02210-COA-R3-PT - Filed May 6, 2014




In this termination of parental rights case, Mother appeals the trial court’s determination that
she abandoned her son by failing to support him and that termination was in the child’s best
interest. Finding clear and convincing evidence in support of the trial court’s determinations,
we affirm the trial court.

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

A NDY D. B ENNETT, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and R ICHARD H. D INKINS, J., joined.

Hillary T. Monroe, Clarksville, Tennessee, for the appellant, Jennifer Loraine G.

Robert E. Cooper, Jr., Attorney General and Reporter, and Kathryn A. Baker, Assistant
Attorney General; for the appellee, State of Tennessee, Department of Children’s Services.

                                              OPINION

                              F ACTUAL AND P ROCEDURAL H ISTORY

       Alexander J. G. (“Alex”) is the biological son of Jennifer Loraine G. (“Mother”) and
the adopted son of Blake G. In 2009, Mother and Blake G. divorced. On September 3, 2010,
Alex entered the protective custody of the Department of Children’s Services (“DCS”) due



        1
           This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
to allegations of abuse by Blake G.2 Alex has continuously remained in foster care since that
time.

       Although Alex was originally removed from the home due to allegations of physical
abuse, Alex later disclosed that Mother had been sexually abusive toward him. On February
14, 2011, a psychological evaluation was conducted on Alex to determine his mental health
needs and to aid in treatment planning. The psychologist who evaluated Alex stated in her
report, “Much evidence exists for sexual abuse by mother both behaviorally and in
disclosures. Alex has symptoms consistent with sexual abuse.” Because of the alleged abuse
Alex has suffered, as well as the behavioral issues he exhibited while in foster care, Alex has
special needs and requires therapy.

        In June 2011, a permanency plan was created, which Mother signed. This plan
required, inter alia, that Mother maintain contact with Alex, attend all hearings and meetings
related to Alex’s custody and permanency, and demonstrate her ability to provide safe and
stable housing for him. A second permanency plan was created in February 2012 and ratified
on April 19, 2012. This plan required Mother to maintain contact with Alex and to
financially support Alex by paying child support “as ordered by the Court of Merrick County
Nebraska[3 ] (i.e., $525.00 per month for two children or $362 monthly for one child).” 4

          On July 18, 2011, Mother moved to Idaho. While in Idaho, Mother completed some




          2
               Blake G. surrendered his parental rights on December 20, 2012, and he is not a party to this
appeal.
          3
        Apparently, Mother and Blake G.’s divorce became final while Mother was residing in Nebraska.
DCS caseworker Michael Spring testified regarding a Nebraska child support order as follows:

          Q. Now, were there any specifics given to Ms. Glynn regarding her financial obligation?
          A. From - - from what I remember we spoke about - - there was a - - early on in the case,
          there was some court ordered payments that were to be made, and so we just asked that the
          intent of that court document be followed. And that is why that financial goal was added
          to that, because there was a - - court document from her previous marriage that she was to
          pay the child support, and I believe it was to Mr. Blake G.
          Q. Okay. Are you referring to something that was pursuant to their divorce in Nebraska?
          A. Correct.

Neither the final divorce decree nor the child support order appear in the record.

          4
              This plan was not signed by Mother.

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action steps as outlined in the permanency plans.5 In January 2012, Mother began receiving
approximately $2,700 per month in disability benefits. Mother testified that, in July 2012,
she became romantically involved with a man who became abusive and threatened to kill her.
Mother testified that she was essentially in hiding from October 2012 through December
2012. According to Mother’s testimony, from August 2012 to December 2012, she had a
“couple of phone call[s]” with Alex but the last time she had seen him in person was in April
2012.

        On October 30, 2012, DCS caseworker Michael Spring contacted Mother and
reviewed an October 2012 permanency plan with her. Mother participated in the discussion
of this plan by telephone, and the plan was read “verbatim” to her. The plan required Mother
to, among other things, “pay child support as ordered by the Court of Merrick County
Nebraska.” The plan included the payment address for the central child support receiving
unit and was signed by Mother “by phone.”

        On December 13, 2012, DCS filed a petition to terminate Mother’s parental rights
based on abandonment of the child by her willful failure to visit and pay support, pursuant
to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i). The
termination hearing took place on July 11, 2013 and, by order entered August 29, 2013, the
court terminated Mother’s parental rights on the ground of abandonment by failure to support
and found that termination was in Alex’s best interest.6 Specifically, the court stated:

        The Court finds that [Mother] abandoned [Alex] by failure to support in the
        four months preceding the filing [of] the petition, specifically August 13, 2012
        through December 13, 2012. In fact, [Mother] never supported [Alex] after he
        entered foster care. As it relates to failure to support, the Court does find by
        clear and convincing evidence that [Mother] failed to support, which is
        significant given the fact that she does, and has since January of 2012,
        received a pretty respectable income pursuant to her disability. And from her
        own testimony, her expenses, which she didn’t include food but – or clothing,
        but her expenses, by the Court[’]s total come to $1,070, so even if you added
        food and clothing, there was certainly money left over to send to help support
        this child. The Court finds that she was on notice on at least one occasion,


        5
         Mother received a certificate of attendance for Stewards of Children Training in November 2011.
In February 2012, Mother completed a diagnostic evaluation.
        6
            The court declined to terminate Mother’s rights based on her willful failure to visit because Mother
testified to participating in “a couple of” supervised phone calls with Alex during the four month period prior
to the filing of the petition to terminate her rights.

                                                       3
       probably two, in addition to the implicit knowledge that she had a duty and an
       affirmative duty to support this child financially and emotionally and willfully
       failed to do so by clear and convincing evidence.

Mother appeals the grounds for termination and the trial court’s finding that termination was
in Alex’s best interest.

                                   S TANDARD OF R EVIEW

       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)). Pursuant to Tennessee Code Annotated section 36-1-113(l)(1), “[a]n
order terminating parental rights shall have the effect of severing forever all legal rights and
obligations of the parent or guardian of the child against whom the order of termination is
entered and of the child who is the subject of the petition to that parent or guardian.”

        Our termination statutes 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., M2004-00999-
COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code
Ann. § 36-1-113(g)). To support the termination of parental rights, petitioners must prove
both the existence of 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 D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

        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 769; 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. § 36-1-113(c)(1); In re
Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth of
the facts asserted is highly probable, and eliminates any serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted). Such evidence “produces in a fact-finder’s
mind a firm belief or conviction regarding the truth of the facts sought to be established.”
Id.

       In light of the heightened standard of proof in these cases, a reviewing court must

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adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). Id. at 654. As
to the trial 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.

                                              A NALYSIS

       Mother asserts that the trial court’s finding of abandonment by failure to support,
pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i), is not supported by clear and convincing
evidence. Specifically, she argues that the October 30, 2012 parenting plan did not “make
[Mother] aware of a duty to pay child support” and that, as a result, her failure to support was
not willful.

        Pursuant to Tenn. Code Ann. § 36-1-113(g)(1), abandonment is one of the grounds
for termination of parental rights. Tennessee Code Annotated section 36-1-102(1)(A)(i)
defines abandonment as the willful failure to visit or willful failure to support, or make
reasonable payments toward support, for a period of four consecutive months immediately
preceding the filing of the termination petition. A parent’s failure to support a child is
“willful” when the parent is “aware of his or her duty to visit or support, has the capacity to
do so, makes no attempt to do so, and has no justifiable excuse for not doing so.” In re
Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005). This Court has previously explained
that, “the obligation to pay support exists even in the absence of a court order to do so.”
Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 523-24 (Tenn. Ct. App. 2004);
see also Tenn. Code Ann. § 36-1-102(1)(H) (“Every parent who is eighteen (18) years of age
or older is presumed to have knowledge of a parent’s legal obligation to support such
parent’s child or children.”); In re Mark A. L., No. M2013-00737-COA-R3-PT, 2013 WL
5536801, at *4 (Tenn. Ct. App. Oct. 4, 2013) (noting that the absence of an order to pay
support is not dispositive of the question of whether the failure to pay support is willful).

       In this case, the pertinent four month period we must be concerned with is August 13,
2012 to December 13, 2012. The evidence regarding Mother’s monetary support of Alex
during this time period is undisputed. Mother testified that her DCS caseworker
communicated that she was required to pay child support, but she denies that she was aware
of the “set amount” she was required to pay.7 She testified that she did not provide any


       7
           Specifically, Mother testified:

       Q. Now, going back to the permanency plan that we’ve discussed, you did participate in that

                                                   5
monetary support for Alex from August 2012 to December 2012. Mother also acknowledged
that she did not provide any items (toys, clothes, shoes, etc.) for Alex during the relevant time
period.8 Regarding her ability to pay support, she testified that she received $2,679 in
disability payments each month beginning in January 2012. Her testimony regarding her
living expenses indicated that she had money left each month from which she could have
paid some support for Alex.

        Considering the foregoing and the entire record, it has been clearly and convincingly
established that Mother was aware of her duty to support the child, that she had the ability
to provide support, and that she willfully failed to do so in the four months preceding the
filing of the termination petition. See Tenn. Code Ann. § 36-1-102(1)(A)(i). Therefore, we
affirm the finding that Mother abandoned the child by failing to support him.

         Once a ground for termination has been proven by clear and convincing evidence, the
court must then determine whether it is in the best interest of the child for the parent’s rights
to be terminated. Tennessee Code Annotated section 36-1-113(i) contains a non-exhaustive
list of factors a trial court is required to consider in making the best interest determination:

        (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;


        via phone in October of 2012?
        A. Yes.
        ...
        Q. Okay. Going back to that meeting, to your recollection, what was said or discussed
        regarding any financial obligation that you had to Alex?
        A. It was dated in there, because they read it verbatim on the permanency plan, that me and
        Mr. [G.] would take care of Alex financially.

(Emphasis added).
        8
          Mother testified that she purchased clothes, shoes, toys, and a computer prior to the relevant time
period, but when asked specifically about August 13, 2012 through December 13, 2012, Mother testified that
she did not provide any of these items for Alex during that time.

                                                     6
       (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.

Every factor need not be applicable for the trial court to determine it is in the best interest of
the child for a parent’s rights to be terminated. See In re Audrey S., 182 S.W.3d at 878. The
best interest analysis is a fact-intensive inquiry requiring the court to consider the unique
facts of the case “from the child’s, rather than the parent’s, perspective.” In re Giorgianna
H., 205 S.W.3d 508, 523 (Tenn. Ct. App. 2006).

       The trial court made the following findings with respect to the children’s best
interests:

       This court has reviewed [Alex’s] case during his custodial stay and realizes
       that [Alex] is a special needs child and will require a level of care that
       [Mother] does not appear able or prepared to give. . . . Therefore, the Court
       finds that termination of the parental rights of [Mother] [is] in the best interest
       of the minor child . . . for the following reasons:
               #1. The Respondent, [Mother], has not made changes to her conduct

                                                  7
       or circumstances that would make it safe for the child to go home. Specifically,
       [Mother] has not maintained a home where [Alex] can return home.
               #2. The Respondent, [Mother], has not made lasting changes in her
       lifestyle or conduct after reasonable efforts by the state to help, so that lasting
       change does not appear possible. Despite the reasonable efforts from the state
       for a period of nearly thirty-four months, [Mother] is unable to take custody of
       [Alex].
               #3. The Respondent, [Mother], abandoned the child financially having
       not contributed to [his] support in a consistent and adequate manner without
       the ability to support the child in her home.
               #4. The Respondent, [Mother], has shown little or no interest in the
       welfare of the child and has abandoned the care of the child to the state.

        We agree with the trial court that, in the years since Alex entered DCS custody,
Mother has failed to make an adjustment of circumstances in order to make it safe for him
to be returned to her. See Tenn. Code Ann. § 36-1-113(i)(1). Although Mother completed
some of the action steps outlined in the permanency plan, her disappearance in 2012 coupled
with her failure to remain in contact with DCS and Alex for extensive periods of time
suggests that she is unable or unwilling to be attentive to Alex’s needs. Furthermore, Mother
has shown little interest in maintaining visitation or other contact with Alex. See Tenn. Code
Ann. § 36-1-113(i)(3)-(4). Mother testified that she has not physically visited with Alex
since April 2012 and had only a “couple” of phone conversations with him during the four
months preceding the filing of the petition.

       Although not specifically mentioned by the trial court, we feel compelled to point out
the disturbing nature of the alleged sexual abuse of Alex by his Mother. See Tenn. Code
Ann. § 36-1-113(i)(6). In the psychological report entered at trial, Alex’s foster mother
reported that Alex’s behavior regressed after in-person visits with his Mother; for example,
Alex would lose bladder and bowel control and have nightmares after having visits with her.
Alex reported multiple incidences of inappropriate touching and exhibited “sexually reactive
behaviors” targeted toward himself and others; these symptoms were described as being
“consistent with sexual abuse.” The psychologist stated, “[i]t appears from all the data
collected for this evaluation that Alex’s mother is a significant trauma trigger for him.”

       In sum, our review of the evidence as applied to the factors at Tenn. Code Ann. § 36-
1-113(i) leads us to conclude that there is clear and convincing evidence to support the trial
court’s holding that termination of Mother’s parental rights is in Alex’s best interest.




                                               8
                                        C ONCLUSION

        For the forgoing reasons, we affirm the trial court’s termination of Mother’s parental
rights. Costs of the appeal are assessed against the Mother, for which execution may issue
if necessary.




                                                             _________________________
                                                             ANDY D. BENNETT, JUDGE




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