                                                                                                      02/04/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   December 3, 2019 Session

                                IN RE BENJAMIN P., ET AL.1

                  Appeal from the Juvenile Court for Hamilton County
                   Nos. 284229, 284230     Robert D. Philyaw, Judge


                                 No. E2019-01022-COA-R3-PT


This action involves the termination of a mother’s parental rights to her two minor
children. Following a bench trial, the trial court found that clear and convincing evidence
existed to support the statutory ground of the persistence of conditions which led to
removal. The court also found that termination was in the best interest of the children.
We affirm the trial court.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which THOMAS R.
FRIERSON, II and CARMA DENNIS MCGEE, J.J., joined.

Ardena J. Garth, Chattanooga, Tennessee, for the appellant, Mary W.

Herbert H. Slatery, III, Attorney General & Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.

John Allen Brooks, Chattanooga, Tennessee, Guardian Ad Litem

                                             OPINION

                                     I.      BACKGROUND

     Benjamin P. and Lyric W. were born to Mary W. (“Mother”) in July 2012 and
December 2014, respectively. Benjamin’s father has since passed away, and Mother has

1
  This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
not identified Lyric’s father. No claims of paternity have been made. On April 30, 2015,
Lyric was hospitalized for failure to thrive. The Department of Children’s Services
received a referral based upon allegations of environmental and nutritional neglect. Lyric
was underweight and had not received follow-up care for her club feet as recommended
by medical professionals, while Benjamin appeared dirty on multiple occasions and
smelled strongly of urine. DCS had trouble locating Mother’s residence, but Mother
eventually advised them that she was living in a hotel room and that her mother and
grandmother had plans to move in with them because their residence had recently been
condemned. The hotel room appeared unkempt with accumulated clutter and garbage.

       DCS removed Benjamin and Lyric (collectively “the Children”) on May 11, 2015.
The Children were placed in the same foster home and were adjudicated as dependent
and neglected. This was not Mother’s first interaction with DCS. Her rights had been
terminated to two other children based upon findings of environmental neglect, while a
third child was currently living with a relative. DCS had also received prior referrals
regarding the Children at issue here; however, DCS had difficulty locating Mother.

       DCS developed several permanency plans throughout the longevity of the case.
Pursuant to the plans, Mother was required to, inter alia, maintain a safe living
environment; participate in a mental health intake and follow recommendations; actively
participate in counseling as recommended; participate in a parenting assessment and
follow recommendations; participate in parenting classes and comply with homemaker
services; pay child support; visit the Children; and provide proof of income. Mother was
cooperative, at first, and worked to complete the requirements. She obtained government
housing, applied for disability benefits, and attended Lyric’s doctor’s appointments.
Lyric had surgery while in DCS custody and was discharged from the hospital with
castings on her legs. Mother also obtained employment but was unable to maintain said
employment as a result of her medical condition.2

       Meanwhile, DCS conducted a home study and found no issues with the home in
April 2016. DCS began to transition the Children for a trial home visit. During that time,
Mother’s visitation increased and was unsupervised. The Children were then placed into
the home for a 90-day trial home visit, beginning on May 8, 2017. The trial home visit
was extended to allow Mother more time to secure employment and evidence her ability
to care for the Children. Throughout the trial home visit, Mother had difficulty
maintaining employment and arriving at the Children’s medical appointments on time.
Her residence also appeared unkempt and cluttered as the trial home placement
progressed. DCS recommended termination of the trial home visit in August 2017. The
court terminated the visit as recommended on August 17.

2
    Mother testified that she was born with club feet and had difficulty standing for long periods of time.
                                                      -2-
       Mother then refused homemaker services to assist her in addressing her hoarding
tendencies and also discontinued her counseling sessions. The condition of her home
continued to deteriorate, leading DCS to move visitation to a neutral location due to the
unsafe condition of the home. DCS last visited the home on June 8, 2018, and found that
the residence was without electricity or water. There was also standing water in the
kitchen that Mother confirmed had been there for approximately one month. Mother later
confirmed that her home was in the same condition on August 8, 2018, but claimed that
she had filed two complaints with Section 8 housing but had not been provided any relief.
DCS finally filed a petition to terminate her parental rights on August 28, 2018, based
upon the statutory grounds of failure to establish a suitable home and the persistence of
conditions which led to removal.

        The case proceeded to a hearing on February 22, 2019, and was later concluded on
March 27. At the first hearing date, Mother confirmed that two of her older children had
also been removed from her care due to issues of environmental neglect. She explained
that at that time, she lived with her mother and grandmother, who both had issues with
hoarding. She denied any issues with hoarding.

        Mother testified that she and the Children were living in a hotel at the time of their
removal because she did not want to live with her mother, whose residence was later
condemned. She stated that since removal, she has obtained employment but had
difficulty maintaining her employment due to her medical condition and missed work due
to attending the Children’s many appointments. However, she claimed that she had again
obtained employment and was scheduled to begin work in a few weeks at a new
restaurant in town.

       Mother admitted that she had difficultly arriving at the Children’s medical
appointments at the appointed time. She agreed that she had issues with time
management and explained that she was addressing these concerns with her counselor.
She testified that she attempted to complete the permanency plan requirements and had
accepted homemaker services at one point. She agreed that she also later rejected
services. She explained that her mother had started using the carport area for her own use
and that she hoped her mother would clean up the mess. She stated that she also
attempted to address the ongoing concerns with the condition of the inside of her home
but that most recently, her landlord refused to repair damage following a flood and a fire
that occurred in the residence, despite her filing of an official appeal with Section 8
housing. She testified that she has been without a home since November 2018 and that
she slept in a wooded area near Eastgate Town Center prior to the hearing. She planned
to obtain adequate housing again once her employment started.

                                             -3-
       Mother’s multiple caseworkers testified concerning Mother’s longstanding
involvement with DCS. They agreed that Mother had made some progress and was
ultimately granted a trial home placement but that she was unable to maintain her
progress once the Children were returned to her care. A plethora of pictures were
introduced documenting the condition of the residence throughout the case. The
residence appeared unkempt and cluttered with personal items and garbage. In addition,
testimony established that insects were present, animal feces was on the wall, the
residence had an unpleasant odor, and cleaning chemicals were in reach of the Children.

       Foster Mother confirmed that the Children were doing well and had shown
significant improvement since their placement. She expressed a desire to adopt them, if
they should become available for adoption. She was familiar with Lyric’s medical needs
and evidenced her intent to provide the necessary care. She stated that the Children
“jumped right back into life” when they returned from the trial home placement. She
claimed that the Children had also adjusted well to their current visitation schedule with
Mother and explained that the Children were happy to attend visitation and happy to
return from visitation.

       Following the hearing, DCS withdrew the statutory ground of failure to provide a
suitable home but submitted the case to the court on the remaining ground of the
persistence of conditions which led to removal based upon Mother’s ongoing
environmental neglect of the Children. The trial court granted the termination petition on
the remaining ground of the persistence of conditions. The court also found that
termination was in the best interest of the Children. This timely appeal followed.

                                      II.     ISSUES

      We consolidate and restate the issues on appeal as follows:

      A.    Whether the court abused its discretion in its ruling on the
      admissibility of evidence.

      B.    Whether clear and convincing evidence supports the court’s
      termination based upon the persistence of conditions which led to removal
      pursuant to Tennessee Code Annotated section 36-1-113(g)(3).

      C.     Whether clear and convincing evidence supports the court’s finding
      that termination was in the best interest of the Children pursuant to
      Tennessee Code Annotated section 36-1-113(i).



                                            -4-
                           III.   STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination.
In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon

       (1)    [a] finding by the court by clear and convincing evidence that the
       grounds for termination of parental or guardianship rights have been
       established; and

       (2)    [t]hat termination of the parent’s or guardian’s rights is in the best
       interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable. State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App.
Aug. 13, 2003). This evidence also eliminates any serious or substantial doubt about the
                                            -5-
correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at
546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

       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.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

                                  IV.     DISCUSSION

                                             A.

       Mother argues that the court erred in its decision to exclude evidence that she had
not been admitted to Moccasin Bend Mental Health Institute (“MBHI”) as alleged by
DCS and relied upon by the trial court in terminating her parental rights to her older
children. The record reflects that the court denied admission of the document because it
was not properly authenticated; however, Mother was permitted to testify that she was
not admitted to MBHI as indicated by DCS.

       “Generally, the admissibility of evidence is within the sound discretion of the trial
court.” Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004). “The trial
court’s decision to admit or exclude evidence will be overturned on appeal only where
                                            -6-
there is an abuse of discretion.” Id. Improper admission or exclusion of evidence
requires a new trial if the outcome of the trial was affected. Tenn. R. App. P. 36(b);
White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999).

       Our review of the record reflects that the exclusion of the evidence, even if
admissible, was harmless. Whether she was admitted to a mental health institute has no
bearing on her failure to remedy the conditions which led to removal when the statute
does not require that the parent’s failure be willful. In re Dakota C.R., 404 S.W.3d 484,
499 (Tenn. Ct. App. 2012) (“A parent’s continued inability to provide fundamental care
to a child, even if not willful, . . . constitutes a condition which prevents the safe return of
the child to the parent’s care.” (quoting In re A.R., No. W2008-00558-COA-R3-PT, 2008
WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008)).

                                              B.

       Under Tennessee law, a trial court may terminate parental rights when:

       (3)(A) The child has been removed from the home or the physical or legal
       custody of a parent or guardian for a period of six (6) months by a court
       order entered at any stage of proceedings in which a petition has been filed
       in the juvenile court alleging that a child is a dependent and neglected child,
       and:
          (i) The conditions that led to the child’s removal still persist,
          preventing the child’s safe return to the care of the parent or
          guardian, or other conditions exist that, in all reasonable probability,
          would cause the child to be subjected to further abuse or neglect,
          preventing the child’s safe return to the care of the parent or
          guardian;
          (ii) 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 or
          guardian in the near future; and
          (iii) 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;

Tenn. Code Ann. § 36-1-113(g)(3) (Supp. 2018) (emphasis added). Termination of
parental rights requires clear and convincing evidence of all three factors. In re
Valentine, 79 S.W.3d at 550. Additionally, the persistence of conditions ground may
only be applied “where the prior court order removing the child from the parent’s home
was based on a judicial finding of dependency, neglect, or abuse.” In re Audrey S., 182
S.W.3d at 874. The statute does not require that only the original conditions leading to
                                              -7-
removal be used to establish grounds for termination. On the contrary, the statute
specifically includes both “[t]he 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[.]” Tenn. Code Ann. § 36-1-113(g)(3)(A)(i).

       Mother argues that DCS failed to establish that the Children were subject to harm
while with Mother or that they would be subject to harm if returned to her and that the
Children never manifested any evidence of any persistent health or developmental
problems caused by nutritional or environmental neglect. We disagree. Lyric was
hospitalized as a result of Mother’s nutritional neglect. Mother was homeless at the time
of the hearing and without the ability to provide a stable and habitable residence in the
near future. Furthermore, Mother’s conduct also strongly suggests that the situation will
not improve as evidenced by her prior involvement with DCS and termination of her
parental rights to two other children, who were also initially removed based upon
allegations of environmental neglect. See Dep’t of Children’s Serv. v. C.B.H., No.
E2003-03000-COA-R3-PT, 2004 WL 1698209, at *2 (Tenn. Ct. App. July 29, 2004)
(“[T]he history of past behavior is relevant to the issue of future behavior.”). Given her
failure to maintain a habitable residence throughout the longevity of this case, we
conclude that there is little likelihood that the conditions which led to removal will be
remedied at an early date so that the Children can be safely returned in the near future
and that the continuation of the relationship greatly diminishes the Children’s chances of
early integration into a safe, stable and permanent home. Accordingly, we conclude that
the conditions which led to removal still persist.

                                             C.

       Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, we must consider whether termination was in the
best interest of the Children. In making this determination, we are guided by the
following non-exhaustive list of factors:

      (i)     In determining whether termination of parental or guardianship
      rights is in the best interest of the child . . . 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
                                             -8-
            for such duration of time that lasting adjustment does not reasonably
            appear possible;3

            (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 or controlled substances 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 [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
3
  In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015) (“[I]n a termination proceeding, the extent of
DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable
efforts is not a precondition to termination of the parental rights of the respondent parent.”).
                                                     -9-
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).

        We acknowledge Mother’s love and concern for the Children. However, the fact
remains she has not made a lasting adjustment of circumstances in the almost four years
that the Children have been in DCS custody, despite reasonable efforts by DCS to
provide assistance. Tenn. Code Ann. § 36-1-113(i)(1), (2). Further, questions remain as
to her ability to provide a safe and stable home for the Children as evidenced by her
continued inability to maintain employment and a habitable residence. Tenn. Code Ann.
§ 36-1-113(i)(7), (8). The Children should be allowed to achieve permanency and
stability in their current home with the foster parents who have expressed a desire to
adopt them. With all of the above considerations in mind, we conclude that there was
clear and convincing evidence to establish that termination of Mother’s parental rights
was in the best interest of the Children. We affirm the trial court.

                                  V.    CONCLUSION

      The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Mary
W.


                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE




                                         - 10 -
