                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                     August 11, 2015 Session

                                  IN RE: CHRISTOPHER M.

              Direct Appeal from the Chancery Court for Madison County
                         No. 69375    James F. Butler, Judge


                  No. W2014-02520-COA-R3-PT – Filed August 24, 2015


This appeal involves the termination of a mother‟s parental rights to her eleven-year-old
son. In 2004, the son was adjudicated dependent and neglected due to his mother‟s
substance abuse and was placed in the custody of his maternal grandmother and step-
grandfather. In 2012, these same grandparents filed a petition, as prospective adoptive
parents, seeking to terminate the mother‟s parental rights on the statutory ground of
persistent conditions. The trial court found that the ground of persistent conditions had
not been proven by clear and convincing evidence. The grandparents appeal. We affirm.

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

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

David Wayne Camp, Jackson, Tennessee, for the appellants, Douglas E. H. and Rechelle
Ann H.

Kortney Deniece Simmons, Jackson, Tennessee, for the appellee, Chastity A. M.


                                               OPINION

                             I.      FACTS & PROCEDURAL HISTORY

         Christopher M.1 (“Christopher”) was born to Chastity M. (“Mother”) in July 2003.
1
 In cases involving a minor child, it is this Court‟s policy to redact names in order to protect the child‟s
identity. In this case, in order to preserve both clarity and the anonymity of the child, we will redact the
names of individuals sharing the child‟s surname and will refer to those individuals by their given name
and the first letter of their surname.
Around September 2003, Mother signed a Power of Attorney, giving the care and
physical custody of Christopher to his grandmother. After Mother terminated the Power
of Attorney and regained physical custody of Christopher, the Tennessee Department of
Children‟s Services (“DCS”) filed a petition to adjudicate Christopher dependent and
neglected and for a change of custody to his maternal grandparents (“Grandparents”). In
November 2004, the Madison County Juvenile Court entered an order finding
Christopher dependent and neglected, due to the fact that Mother tested positive for
methamphetamine, and her admission that she had been using illegal drugs even though
she was pregnant with a second child. Christopher was then placed with his maternal
Grandparents, with whom he has lived since that time.

      Mother gave birth to another son (“Brother”) in 2005. Due to Mother‟s continued
drug use, Brother was removed from Mother‟s home and lived with Mother‟s sister for a
time and then with the Grandparents. Grandparents eventually relinquished custody of
Brother to DCS because of emotional and behavioral problems. Mother moved
numerous times over the next several years, living in Tennessee, Mississippi, and
Wisconsin. In December 2013, DCS approved Brother‟s return to Mother‟s home in
Tennessee.

       In July 2012, Grandparents filed a petition to terminate Mother‟s parental rights to
Christopher and for adoption in the Madison County Chancery Court. Grandparents
asserted that statutory grounds for termination existed due to abandonment, Tenn. Code
Ann. § 36-1-113(g)(1), and persistent conditions, Tenn. Code Ann. § 36-1-113(g)(3).
They also asserted that termination of Mother‟s parental rights was in Christopher‟s best
interest. The chancery court appointed a guardian ad litem and appointed counsel for
Mother.

       After a hearing only on the issue of abandonment, in which the proof was clear
that Mother had regular visits with the child and had regularly paid child support, the
chancery court issued a letter ruling, and an Order was entered dismissing the case.
Grandparents then filed a Rule 59 Motion, which the chancery court partially granted,
vacating a portion of the prior order, as it had failed to consider the grounds of “persistent
conditions” in its prior dismissal Order. The chancery court conducted a bench trial on
June 27, 2014, July 7, 2014, and August 8, 2014. During the trial, the court heard
testimony from Mother‟s girlfriend, Mother‟s sister, Grandparents, Christopher‟s
psychologist, and the DCS worker assigned to evaluate Mother‟s home in connection
with Brother‟s case.

       For reasons that will be discussed below, the trial judge found that the ground of
persistent conditions had not been established by clear and convincing evidence.
Consequently, the trial court entered an order dismissing the Grandparents‟ petition for
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termination of parental rights and adoption.

                                II.    ISSUES PRESENTED

       Grandparents have timely filed their notice of appeal and present the following
issue for review:

       1. Whether the trial court erred when it found no clear and convincing
       evidence as to the ground of persistent conditions.

For the following reasons, we affirm the decision of the chancery court.

                              III.    STANDARD OF REVIEW

       “A biological parent‟s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the due process clauses of
the federal and state constitutions.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App.
2007); In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005). Although the
parent‟s right is fundamental and superior to the claims of other persons and the
government, it is not absolute. In re J.C.D., 254 S.W.3d at 437. A parent‟s right
“continues without interruption only as long as a parent has not relinquished it,
abandoned it, or engaged in conduct requiring its limitation or termination.” Id.; see also
In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).

       In Tennessee, proceedings to terminate parental rights are governed by statute.
“Parties who have standing to seek the termination of a biological parent‟s parental rights
must prove two things.” In re Audrey S., 182 S.W.3d at 860; see also In re M.J.B., 140
S.W.3d at 653. First, they must prove the existence of at least one of the statutory
grounds for termination, which are listed in Tennessee Code Annotated section 36-1-
113(g). Id. Several grounds for termination are listed in subsection (g), but the existence
of any one of the grounds enumerated in the statute will support a decision to terminate
parental rights. In re Angela E., 303 S.W.3d 240, 251 (Tenn. 2010); In re S.R.C., 156
S.W.3d 26, 28 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). Second, the petitioner must prove that terminating parental rights is in the child‟s
best interest, considering, among other things, the factors listed in Tennessee Code
Annotated section 36-1-113(i). In re Audrey S., 182 S.W.3d at 860. In light of the
constitutional dimension of the rights at stake in a termination proceeding, the person
seeking to terminate these rights must prove all the elements of the case by clear and
convincing evidence. In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn.
Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 808-09 (Tenn.
2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). In sum, in order to terminate
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parental rights, a trial court must determine by clear and convincing evidence not only the
existence of at least one of the statutory grounds for termination but also that termination
is in the child‟s best interest. In re Adoption of Angela E., 402 S.W.3d 636, 639 (Tenn.
2013); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). “Clear and convincing
evidence” has been defined as “evidence in which there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.” In re Adoption of
Angela E., 402 S.W.3d at 640 (citing In re Valentine, 79 S.W.3d 532, 546 (Tenn. 2002)).
It produces a firm belief or conviction in the fact-finder‟s mind regarding the truth of the
facts sought to be established. In re Audrey S., 182 S.W.3d at 861.

        Because of this heightened burden of proof in parental termination cases, on
appeal we must adapt our customary standard of review as set forth in Tennessee Rule of
Appellate Procedure 13(d). In re Audrey S., 182 S.W.3d at 861. First, we review each of
the trial court‟s specific factual findings de novo in accordance with Rule 13(d),
presuming the finding to be correct unless the evidence preponderates against it. In re
Adoption of Angela E., 402 S.W.3d at 639. Second, we must determine whether the facts
(either as found by the trial court or as supported by the preponderance of the evidence)
amount to clear and convincing evidence that one of the statutory grounds for termination
exists. Id. at 639-40. Whether a statutory ground has been proven by the requisite
standard of evidence is a question of law to be reviewed de novo with no presumption of
correctness. In re R.L.F., 278 S.W.3d 305, 312 (Tenn. Ct. App. 2008) (citing In re B.T.,
No. M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn. Ct. App. Jan. 31, 2008)).

                                     IV. DISCUSSION

                               A.     Persistent Conditions

      This case involves the statutory ground for termination that is commonly referred
to as “persistent conditions,” defined in Tennessee Code Annotated section 36-1-
113(g)(3) as existing 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
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       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) (2010 & Supp. 2013). In order to terminate parental
rights, there must be clear and convincing evidence of each of these elements. In re
Valentine, 79 S.W.3d at 550. The purpose behind the “persistent conditions” ground for
terminating parental rights is “„to prevent the child‟s lingering in the uncertain status of
foster child if a parent cannot within a reasonable time demonstrate an ability to provide a
safe and caring environment for the child.‟” In re Dakota C.R., 404 S.W.3d 484, 499
(Tenn. Ct. App. 2012) (quoting In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL
4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008)). In cases involving this ground, it is not
necessary to prove that a parent-child relationship cannot be salvaged, nor is it necessary
to show that a parent is “currently harmful” to a child‟s safety or future emotional
stability. In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn.
Ct. App. July 21, 2000).

       The statutes governing termination of parental rights recognize a child‟s need for a
permanent, stable environment. Id. Accordingly, the question is the likelihood that the
child can be safely returned to the custody of the parent, not whether the child can safely
remain in foster care with periodic visits with the parent. Id.

        Here, the record reflects that Christopher was removed from his mother‟s home by
order of a court for a period of six months. In fact, by the time of trial, Christopher had
been in the custody of Grandparents for over nine years. Therefore, the determinative
issues are whether the conditions that led to removal (or other conditions that would
cause further abuse or neglect and prevent the child‟s safe return) still persist; whether
there is a likelihood that these conditions will be remedied at an early date so that the
child can be safely returned to Mother “in the near future”; and whether continuation of
the parent-child relationship greatly diminishes the child‟s chances of early integration
into a safe, stable, and permanent home. See Tenn. Code Ann. § 36-1-113(g)(3).

       The condition that led to Christopher‟s removal from Mother‟s home was illegal
drug abuse. Mother admitted that Christopher was removed from her custody in 2004
due to her drug abuse problem and that she was in “no condition to have him” while she
was addicted to drugs. After failing to complete a rehabilitation program several times,
Mother decided to quit using drugs “cold turkey.” At trial in 2014, Mother testified that
she had not used drugs since 2010. In addition, Mother submitted a November 27, 2013
negative hair follicle drug test that was admitted into evidence.

     Mother‟s sister testified that she visited Mother‟s home recently “on three separate
weekends” and that she believes Mother is “clean.” Grandparents also testified that they
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have no actual knowledge of Mother‟s activities but do not believe she continues to use
illegal drugs.

       The trial court also heard evidence regarding the portion of section 36-1-113(g)(3)
addressing “other conditions which would probably cause the child to be subjected to
further abuse, or neglect….” Grandparents alleged that Mother abused alcohol in the
home, that Mother‟s girlfriend physically abused Mother, and that Christopher‟s younger
brother physically abused him. At trial, Grandparents testified that Christopher began
wetting the bed and exhibiting behavioral difficulties after spending weekends with
Mother. However, the testimony of both Grandparents indicates that they had little to no
contact with Mother during the several years prior to trial and no actual knowledge
regarding Mother‟s alcohol use or whether any violence had occurred in Mother‟s home.
Dr. Pickering, Christopher‟s psychologist, relayed much of the proof regarding these
allegations at trial but acknowledged he had never spoken with Mother about his sessions
with Christopher and conceded that he elicited information from Christopher by having
him confirm reports given to him by Grandmother. However, Dr. Pickering also testified
that Christopher loves his mother and wants to live with her.

       When questioned regarding violence in her home, Mother testified “There‟s no
violence in my home at all,” though she later described events in which Christopher
struck Brother with a NERF gun after Brother had punched him. She later clarified that
Christopher would be in no danger in her home and that “[the brothers] ain‟t going to do
nothing that two brothers ain‟t going to do. They‟re going to argue, fuss, and fight.”
Mother‟s sister said that Mother‟s home was “chaotic” and that the “boys run [her]
house” but also testified that she had never seen anyone use violence towards
Christopher. The DCS worker assigned to evaluate Mother‟s home with respect to
Brother testified that he visited Mother‟s home at random times for over a year prior to
trial. He testified that he never saw Mother impaired, that he had no concerns with
Mother‟s parenting skills, and that the conditions that caused removal, as he understood
them, had been remedied.

       On appeal, Grandparents challenge the trial court‟s finding that their burden of
proving persistent conditions by clear and convincing evidence had not been met. First,
they assert that the trial court erred in finding that Mother‟s alcohol use does not affect
her parenting. Second, they assert that the trial court erred by reaching a conclusion
regarding instability and violence at Mother‟s home that “was not supported by the
testimony or the exhibits admitted into evidence.” The trial court made extensive
findings with regard to both the original conditions for removal and other conditions
relevant to the ground of persistent conditions, describing Mother‟s alcohol use, and the
general stability of Mother‟s home. The court then concluded:

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               The conditions that caused the removal of [Christopher] from the
       Mother do not still exist and did not exist at the time of the filing of the
       Petition by [Grandparents], or at the time of trial. The other conditions
       relied upon and alleged were not proven to still exist at the time of filing, or
       at the time of trial by clear and convincing evidence. Since the Plaintiffs are
       unable to carry the heavy burden of proof of grounds for termination of
       Mother's parental rights, there is no occasion to inquire into [Christopher‟s]
       best interest. Suffice [it] to say that [Christopher], by both [Grandparents‟]
       and other witnesses' testimony, loves Mother and wants to live with her.
       DCS has approved her home for her other child and that other child lives
       with her currently. DCS has no issues with Mother's parenting skills, or her
       living circumstances.

        We agree with the trial court‟s conclusions. Christopher was removed from
Mother‟s home due to illegal drug use, which has since been remedied. We agree with
the trial court‟s finding that “[t]here is no proof to the contrary.” The Grandfather
testified that he believes Mother has changed based on his belief that “[s]he doesn‟t do
drugs anymore.” Although the Grandfather alleged that Mother had failed several drug
tests, the trial court noted that “[t]he only drug test the Court has evidence of failure is the
one in 2004.”

       Grandparents insist that Mother‟s continued use of alcohol constitutes a persistent
condition within the meaning of section 36-1-113(g)(3)(A) because it was either a
condition that led to Christopher‟s removal or alternatively it falls into the “other
conditions” category. We disagree. The juvenile court‟s 2004 order plainly states that
the cause for removal was a positive test for methamphetamine and for the use of “illegal
drugs.” Alcohol use was not contemplated by the juvenile court in its order, nor will we
read that into it here. Although Mother testified at trial to drinking as many as eighteen
beers per week, the trial court noted that:

       By her own admission she still uses alcohol, but that is not illegal, and does
       not [a]ffect on her parenting or employment according to the DCS worker
       who monitored her routinely and personally. Other testimony about
       Mother‟s drinking habits [was] hearsay and [was] not clear and convincing
       to the Court.

The record does not provide evidence that “produces a firm belief or conviction” in our
mind that Mother‟s use of alcohol is a condition which would “probably cause
[Christopher] to be subjected to further abuse or neglect….” See Tenn. Code Ann.
Section 36-1-113(g)(3)(A); see also In re Audrey S., 182 S.W.3d at 861.

                                               7
       We also agree with the trial court‟s conclusion that “[a]llegations of Mother‟s
failure to maintain a stable home were based on hearsay and speculation.” While
Grandparents‟ allegations of repeated episodes of domestic violence, among other things,
cause concern, the record simply does not provide clear and convincing evidence of their
truth. Grandparents and Dr. Pickering, the parties who either made or offered proof
regarding the allegations, admitted that they had no personal knowledge of the alleged
facts. This, combined with conflicting testimony by those with personal knowledge,
raises “substantial doubt” as to the truth of those allegations. See In re Adoption of
Angela E., 402 S.W.3d at 640 (citing In re Valentine, 79 S.W.3d 532, 546 (Tenn. 2002)).

        In sum, we cannot disagree with the trial court that there was no clear and
convincing evidence that “[t]he conditions that led to [Christopher‟s] removal or other
conditions…that, therefore, prevent the child‟s safe return to the care of the [Mother] still
persist.” See Tenn. Code Ann. § 36-1-113(g)(3). Because a ground for termination has
not been established, we do not consider Grandparents‟ argument regarding the child‟s
best interest.

                                   V.     CONCLUSION

       For the aforementioned reasons, the decision of the chancery court is hereby
affirmed and remanded. Costs of this appeal are taxed to the appellants, Douglas E. H.
and Rechelle Ann H., and their surety, for which execution may issue, if necessary.



                                                  _________________________________
                                                  BRANDON O. GIBSON, JUDGE




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