                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                        March 6, 2013 Session

                                         IN RE ERYKAH C.1

                   Appeal from the Chancery Court for Hamilton County
                     No. 11A048     W. Frank Brown, III, Chancellor




                     No. E2012-02278-COA-R3-PT-FILED-MAY 6, 2013


This case involves an appeal by a mother of the termination of her parental rights to her
daughter. We conclude that the grounds for termination have been established by clear and
convincing evidence. Further, there is clear and convincing evidence in the record that
termination of the mother’s parental rights is in the child’s best interest. Accordingly, we
affirm the trial court’s judgment.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Peter J. Arant, Chattanooga, Tennessee, for the appellant, Karen M. C.

Michael S. Jennings, Chattanooga, Tennessee, for the appellees, Daniel Scott Harnsberger
and Tabitha Rife Harnsberger.

Jeff Davis, Hixon, Tennessee, guardian ad litem.

                                                 OPINION

                                          I. BACKGROUND

        This case is a parental rights action terminating the parental rights of Karen M. C.


        1
          This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last names of the parties.
(“Mother”) to her daughter, Eryka C. (“the Child”) (d.o.b. August 29, 2010). Eric T.
(“Putative Father”), the apparent biological father of the Child, was named as a defendant
in the underlying action. He never made an appearance or responded to the petition.2 Daniel
S. H. and Tabitha R. H. are the prospective adoptive parents (“Adoptive Parents”).

       Mother, who has spent much of her life in and out of group homes and other facilities,
has had a court-appointed conservator over her person for her entire adult life. The current
conservator, Diana Crawford Johnson (“the Conservator”) joined in Adoptive Parents’
underlying adoption petition as a co-petitioner, in order to provide her consent to the
adoption. At a hearing in this matter, the Conservator testified as follows:

        Q.      As the conservator of [Mother’s] person, do you see any hope for
                substantive change?

        A.      Sadly, as things go now, no, I don’t. . . . [H]aving a child, the stress of
                having a child would just be so much – just be too much for her.


        The Child left Mother’s custody shortly after her birth. According to Mother, while
she was living with an aunt in Catoosa County, Georgia, she was arrested when she and the
aunt got into an argument. While she was incarcerated, Mother agreed to give temporary
custody of the Child to the aunt. The Conservator subsequently gained temporary emergency
custody of the Child and maintained her for two months. Thereafter, through connections
at the Conservator’s church, the Child ultimately came into the custody of Adoptive Parents.
In July 2011, Mother filed a petition in juvenile court seeking the return of the Child. While
Mother was awaiting a hearing on her petition, however, Adoptive Parents filed their petition
in November 2011 to terminate Mother’s parental rights and to adopt the Child.

         The trial court ultimately found that three separate and independent grounds for
termination of Mother’s parental rights existed: (1) abandonment by a “willful failure to
visit,” (2) abandonment by a “willful failure to support,” and (3) mental incapacity to parent.
It was also determined that termination of Mother’s parental rights to her daughter was in the
Child’s best interest. In the trial court’s final order of termination, the following remarks,
inter alia, are found:

        [Mother] testified she filed a Petition for Custody of Erykah on July 7, 2011.
        Trial Exhibit 7. The second page of Trial Exhibit 7 is a notice of a hearing set


        2
         A judgment of default was entered against Putative Father on June 11, 2012. The trial court
terminated Putative Father’s parental rights in the final order and he is not participating in this appeal.

                                                   -2-
       for January 23, 2012. The notice states that “Failure to appear at the above
       stated hearing could cause this petition to be dismissed.”

       [Mother] did not appear at the Hamilton County Juvenile Court on January 23,
       2012. She said it was raining hard that day and she did not have an umbrella.
       [Mother] was pregnant at the time and her second daughter would be born in
       March thereafter. [Mother] produced no evidence that the case she filed on
       July 7, 2011, No. 244, 653, had not been dismissed. She certainly did not
       actively pursue this case.

                                                  ***

       [Mother] has had ten residences since 1998. . . .

                                                  ***

       [Mother] admitted that she has been diagnosed as having bipolar disorder.
       However, she is not taking any medication for her disorder as “some meds
       make you sleep during the day.” However, she opined that she does not need
       medication “unless someone triggers me – brings up my past.”

                                                  ***

       [Mother] tested in the 90th percentile for issues involving her control, the 96 th
       percentile for her violence scale, and 71% for the stress coping scale. . . .3

       [Mother] did not file any petition asking the Juvenile Court for an order o[f]
       visitation with Erykah. There is no evidence of any pending case in the
       Juvenile Court of Hamilton County.

                                                  ***

       Dr. Hillner has seen nothing which would indicate [Mother] can change her
       situation. She has had extensive hospitalizations since she was 18 and she has
       not changed. [Mother] does not recognize that she has a problem. She blames
       someone else for her problems. She will not take medications, for various
       reasons, to treat her mental illness.


       3
           Dr. Hillner’s report noted that Mother’s scaled score on the violence index indicated a severe
problem.

                                                    -3-
       [The Conservator], who has known [Mother] from the age of 12, testified that
       [Mother] historically would get in trouble, announce her changed life, and then
       show no evidence of change. [The Conservator] said that [Mother] actually
       thrived in jail because it was a structured environment.

                                             ***

Mother filed this timely appeal.


                                         II. ISSUES

       Mother raises the following issues:

       1. Whether there was clear and convincing evidence to terminate Mother’s
       parental right on the basis of abandonment.

       2. Whether there was clear and convincing evidence to terminate Mother’s
       parental rights on the basis of mental incompetence.

       3. Whether termination of Mother’s parental rights was in the best interest of
       the Child.

       4. Whether the trial court abused its discretion by admitting the report and
       testimony of the independent expert into evidence despite the expert’s viewing
       of inadmissible records concerning Mother’s childhood mental health history.


                             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)).

                                              -4-
        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 of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. “[A] court must determine that clear and convincing evidence
proves not only that statutory grounds exist [for 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 rights 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 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.

       The Tennessee Supreme Court has provided guidance in reviewing cases involving
the termination of parental rights:

       A reviewing court must review the trial court’s findings of fact de novo with
       a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
       Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
       [(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
       under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
       then make its own determination regarding whether the facts, either as found
       by the trial court or as supported by a preponderance of the evidence, provide
       clear and convincing evidence that supports all the elements of the termination
       claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
       [(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
       App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
       Appellate courts conduct a de novo review of the trial court’s decisions
       regarding questions of law in termination proceedings. However, these
       decisions, unlike the trial court’s findings of fact, are not presumed to be

                                               -5-
       correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010) ]; In re
       Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010) (emphasis added).


                                    IV. DISCUSSION

                                    ABANDONMENT

       As noted above, the trial court found three grounds for terminating Mother’s parental
rights. Only one ground must be established by clear and convincing evidence to justify
termination of parental rights. Tenn. Code Ann. § 36-1-113(c). The party petitioning for
termination carries the burden of proof. In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App.
2004). The statutory requirements ensure that each parent receives the constitutionally
required “individualized determination that a parent is either unfit or will cause substantial
harm to his or her child before the fundamental right to the care and custody of the child can
be taken away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

       Tennessee Code Annotated section 36-1-113 provides the grounds for termination of
parental rights. The applicable provisions read as follows:

       36-1-113. Termination of parental rights. – (a) The chancery and circuit
       courts shall have concurrent jurisdiction with the juvenile court to terminate
       parental or guardianship rights to a child in a separate proceeding, or as a part
       of any grounds for termination of parental or guardianship rights permitted in
       this part or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.

                                            ***

       (c) Termination of parental or guardianship rights must be based 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) That termination of the parent’s or guardian’s rights is in the
              best interests of the child.

                                            ***

                                              -6-
       (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the grounds listed in this subsection (g). . . :

                  (1) Abandonment by the parent or guardian, as defined in § 36-
                  1-102, has occurred;

Tenn. Code Ann. §§ 36-1-113(a) - (g)(1) (Supp. 2012).4                   “Abandonment” under the
applicable statute means that:

       For a period of four (4) consecutive months immediately preceding the filing
       of a proceeding or pleading to terminate the parental rights of the parent(s) or
       guardian(s) of the child who is the subject of the petition for termination of
       parental rights or adoption, that the parent(s) or guardian(s) either have
       willfully failed to visit or have willfully failed to support or have willfully
       failed to make reasonable payments toward the support of the child . . . .

Tenn. Code Ann. § 36-1-102(1)(A)(i). In the case at bar, the trial court determined that the
applicable period of time to review under this statute was July 8, 2011 through November
7, 2011.


                                        FAILURE TO VISIT

       Willful failure to visit means “the willful failure, for a period of four (4) consecutive
months, to visit or engage in more than token visitation.” Tenn. Code Ann. § 36-1-
102(1)(E). The element of willfulness in a termination case is discussed at some length by
this court in In re Audrey S.:

       In the statutes governing the termination of parental rights, “willfulness” does
       not require the same standard of culpability as is required by the penal code.
       Nor does it require malevolence or ill will. Willful conduct consists of acts or
       failures to act that are intentional or voluntary rather than accidental or
       inadvertent. Conduct is “willful” if it is the product of free will rather than
       coercion. Thus, a person acts “willfully” if he or she is a free agent, knows
       what he or she is doing, and intends to do what he or she is doing.

       Failure to visit or support a child is “willful” when a person is aware of his or
       her duty to visit or support, has the capacity to do so, makes no attempt to do

       4
           Recent amendments have not modified provisions applicable in this case.

                                                    -7-
       so, and has no justifiable excuse for not doing so.

Id., 182 S.W.3d at 863-64 (citations omitted). In determining whether a child has been
abandoned based upon a failure to visit, there is no requirement of a prior visitation order.
As observed by the trial court, in In re M.L.P, 281 S.W.3d 387, 392-93 (Tenn. 2009), the
Supreme Court noted as follows:

       We decline to hold that a parent must be aware of the consequences of his
       failure to visit for such a failure to be willful. The plain language of the statute
       requires that the failure to visit be “willful,” not that the parent be fully
       apprised of every consequence the failure to visit might produce. Persons are
       presumed to know the law and parents should know that they have a
       responsibility to visit their children.

Id. at 392-93 (citations omitted) (emphasis added).

       Mother contends that her efforts to regain custody of the Child have been rebuffed and
that she was instructed to raise her issues in a court of law. According to Mother, she has
established through the record and testimony that she was attempting to exercise her rights
in court during the four-month time period preceding the filing of the termination petition.
As noted above, shortly before the four-month period began, she filed a petition in juvenile
court seeking the return of the Child and was awaiting a hearing date. The record reveals that
on December 2, 2011, after the filing of the termination petition, Mother filed a handwritten
motion:

       To whom it may Concern

       I [Mother] is (sic) requesting to have a Court Date Set Because I have no
       inten[t]ions of adopting my Daughter Erykah T. [ ] out. I will do what ever it
       takes to get my daughter back in my Cust[o]dy ASAP. These people are being
       vindictive towards me And I don’t appreiecate (sic) it. Thank you for your
       Time and understanding of this Emergency Request.

       If you will Please Set Me a Court Date to get my Daughter Erykah T. [ ] Back
       at home.

Accordingly, she contends that because she was pursuing the matter in court, her parental
rights should not be terminated for failure to visit. Her counsel argues that Mother
understood that only the court action mattered. Counsel thus posits that Mother lacked the
requisite intent to abandon the Child.

                                               -8-
        Mother cites In re Adoption of A.M.H., 215 S.W.3d 793 (Tenn. 2007) and In re
Chelbie F., No. M2006-01889-COA-R3-PT, 2007 WL 1241252 (Tenn. Ct. App. Apr. 27,
2007), for the proposition that the filing of a custody action and turning to the courts for
assistance precludes a determination of willful abandonment based upon either a failure to
visit or a failure to support one’s child. Under the facts in this case, however, the evidence
supports the determination of the trial court that Mother “certainly did not actively pursue
this case.” Indeed, she missed a scheduled court date because it was “raining like really
bad.” Thus, we do not find the cases cited by Mother to be controlling.

        The trial court further concluded that Mother did not even attempt to visit the Child
during the applicable four-month period. Despite Mother testifying that (1) she knew
Adoptive Parents had custody of the Child and (2) she had their telephone number, she never
attempted to arrange a single visit. No evidence was presented that anyone prevented or
interfered with Mother visiting the Child. In re Audrey S., 182 S.W.3d at 864. The
Tennessee Supreme Court has previously determined that “[a] parent’s failure to visit may
be excused by the acts of another only if those acts actually prevent the parent from visiting
the child or constitute a significant restraint or interference with the parent’s attempts to visit
the child.” In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009). The trial court additionally
found it significant that Mother “did not file any petition asking the Juvenile Court for an
order of visitation with [the Child].”

        We conclude that the record contains clear and convincing evidence supporting the
termination of Mother’s parental rights on the ground of abandonment based on willful
failure to visit.


                                  FAILURE TO SUPPORT

      As noted by the trial court, the law in this state is clear that a parent has a duty to
support a child, regardless of whether there is a prior court order requiring such. We have
held:

       We agree with the juvenile court that Mother’s history of support of the
       children was not reasonable and showed willful failure to make reasonable
       payments toward their support. The proof fully supports a finding that she
       contributed only token support to her children not only over the four month
       period preceding the filing of the amended petition, but also over the period
       the children had been in the custody of the Grandmother. Though Mother was
       not under a court order setting support for her children, such an order is not
       required. The former common law obligation to support is codified at Tenn.

                                                -9-
       Code Ann. § 34-1-102(a); as well, it is the public policy of Tennessee that
       parents owe a duty of support to their children. See Berryhill v. Rhodes, 21
       S.W.3d 188, 192 (Tenn. 2000).

In re M.A.C., No. M2007-01981-COA-R3-PT, 2008 WL 2787763 at *5 (Tenn. Ct. App. July
17, 2008) (emphasis added) (footnote omitted). The duty to support one’s child also is
expressly required by statute as follows:

       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[.]

Tenn. Code Ann. § 36-1-102(1)(H). A party seeking termination of parental rights must
prove by clear and convincing evidence that the opposing party had the capacity to pay
support but made no attempt to do so and did not possess a justifiable excuse. See In re
Audrey S., 182 S.W.3d at 860, 864.

       Mother asserts that she is excused from supporting the Child because (1) she is
indigent and (2) her non-custody of the Child prevented her from obtaining governmental
assistance for her daughter. The record and Mother’s testimony reveals that she receives
$698 a month from Social Security and also qualifies for food stamps to pay for her food.
In our view, having some funds, together with the ability to communicate with Adoptive
Parents, allowed Mother to provide or to at least offer to provide some minimal level of
financial assistance for the Child. She testified, however, as follows:

       Q.     Now, when you get that [disability] check you’ve not given a nickel or
              a penny to [Adoptive Parents], have you?

       A.     No. Because I feel like, you know, I shouldn’t have to – because I have
              felt that they are trying to keep me from my child . . . .

Her actions reveal that she intentionally did not support the Child.

      Mother also asserts that because she did not have physical custody of her daughter,
she could not draw a government check for the Child. She related as follows:

       I just can’t do nothing with her not in my hands right now, because if I had her
       in my hands today, understand this, if I had her today I could take her to the
       Social Security office, get her her own check . . . .



                                             -10-
In Mother’s view, because she could not draw a government check for the Child, she had no
responsibility for the upkeep of her daughter. She refused to contribute any amount of her
monies – not even a small amount – for the Child’s support. The record supports the trial
court’s determination that Mother abandoned the Child by failing to pay support.


                              MENTALLY INCOMPETENT

      The underlying petition relies on a third ground for termination – Mother’s mental
incompetency. This ground is found at Tennessee Code Annotated section 36-1-
113(g)(8)(B), as follows:

       The court may terminate the parental or guardianship rights of [a parent or
       guardian] if it determines on the basis of clear and convincing evidence that:

       (i) The parent or guardian of the child is incompetent to adequately provide for
       the further care and supervision of the child because the parent’s or guardian’s
       mental condition is presently so impaired and is so likely to remain so that it
       is unlikely that the parent or guardian will be able to assume or resume the care
       of and responsibility for the child in the near future; and

       (ii) That termination of parental or guardian rights is in the best interest of the
       child.

Tenn. Code Ann. § 36-1-113(g)(8)(B) (emphasis added). Adoptive Parents have the burden
to demonstrate by clear and convincing evidence both that Mother is presently unable to care
for the Child and that it is unlikely that Mother will be able to do so in the near future. In re
Keishel N. E., No. M2012-01108-COA-R3-PT, 2013 WL 440061, at *7 (Tenn. Ct. App. Feb.
4, 2013). Relative to termination based on mental incapacity, the statute expressly states that
no finding of willfulness is required to establish this ground. Tenn. Code Ann. § 36-1-
113(g)(8)(C).

       Mother asserts that while the report depicts her as an individual who has struggled
with mental health issues, it does not establish that her difficulties rise to the level required
to terminate her parental rights.

       To provide clear and convincing evidence regarding Mother’s mental incompetence,
Adoptive Parents produced the testimony and twenty-page report of Dr. William M. Hillner.
Dr. Hillner met with Mother for 7.5 hours in six meetings over a span of two months, and



                                              -11-
administered a wide battery of assessment tests on her.5 He also reviewed medical records
pertaining to Mother’s mental health history since her 18th birthday.6 Based upon the battery
of tests, the review of Mother’s adult medical records, the interviews with Mother, and his
decades of experience, Dr. Hillner concluded that (1) Mother’s current mental functioning
was impaired and (2) that he saw little hope of change that would allow Mother to resume
the care and responsibility for the Child in the future. The summary reads as follows:

        Current Functioning: The following summarizes this writer’s concerns about
        her current functioning:

        * Her responses to Multiaxial Diagnostic Inventory and other devices indicate
        a fairly consistent pattern of not acknowledging her problems. This is
        considered a serious liability as she would not be able to make necessary
        changes to achieve a higher level of functioning. Her responses to questions
        also were inconsistent and reflected a reluctance to disclose difficulties.
        Initially, for example, she denied depression initially but later admitted this.

        * The MMPI personality pattern might have a clear bearing on her day-to-day
        functioning as a parent. Clients with this pattern often have problems with
        impulsivity. They find it difficult to delay gratification. They tend to feel
        frustrated with their circumstances and may be resentful of any demands others
        place on them. They tend to ignore social standards and values and may act
        out problems without regard to the consequences. Their characteristic
        manipulative behavior is maladaptive and may alienate other people who tend
        to lose patience with them.

        * Based on the current MCMI, [Mother] may have a “core personality” which
        includes an Avoidant Personality Disorder with Dependent Personality Traits,
        Paranoid Personality Features and Self-defeating Personality Features. The
        major personality features described reflect long-term or chronic traits that are
        likely to have been evident for several years prior to the present assessment
        and are likely to continue.



        5
         Mother did not appear on the initially scheduled date for her mental examination. She then failed
to appear at a subsequently-agreed upon time and place.
        6
        Records in the court file show diagnoses of Schizoaffective Disorder, Depressive Type, Bipolar
Type; Post traumatic Stress Disorder; Oppositional Defiant Disorder; and an IQ of 63. Mother was raised
by a mother who abused her emotionally and physically and lived with an uncle who molested her. She was
removed from her family at age 11 and placed in foster care.

                                                  -12-
* Based on the cognitive testing, her overall intelligence falls within the “low
average” range. However, she has significant deficits in verbal abilities.

* This writer is also concerned about her difficulty participating in this
evaluation. Even though the custody of her child was at stake, she missed
appointments, was late and even had to leave early. She also brought her
infant daughter with her. While this writer understands [Mother] has limited
financial resources, this would suggest she will have difficulty meeting
appointments for her children in the future.

* In spite of the seriousness of her psychiatric difficulties, her compliance with
medication is very suspect. In 2009 (only three years ago), she admitted she
had not been taking medication and told an evaluator she finally realized she
“might” need this. When questioned about this during a session with this
writer, [Mother] stated she does not want to take the medication as she disliked
the impact and believes she no longer needs this. On the very last contact with
[Mother], she mentioned a desire to see a psychiatrist but this was not
consistent with other comments she made.

* Her typical day does not involve activities designed to stimulate a child’s
development. Her responses to questions about how she might facilitate a
child’s social development was very poor, indicating a lack of consideration
of this important area.

* “The Gardner Inventory” reflected significant weaknesses, e.g., use of
“popping” the child rather than utilizing other forms of consequences,
inconsistence and inadvertently reinforcing maladaptive patterns of
misbehavior.

* Her lack of stability greatly concerns this writer. It was only in January of
this year, [Mother] established her own residence and has remained at this
address.

* She stated she has finally terminated her relationship with [Putative Father],
the children’s father who she described as an alcoholic in June of this year.
However, he apparently was present in the waiting room during one of the
sessions.


Regarding Dr. Hillner’s conclusion that it is unlikely that the Mother’s incapacity will

                                       -13-
change “in the near future,” the report reads in part as follows:

       Predictions: Obviously, it is difficult to predict with accuracy what a person
       will do in the future. Professionals such as this writer must rely on past
       behavioral patterns to make such predictions. Based on the available data, this
       writer cannot recommend the return of the child to this mother. There is little
       to convince this writer [Mother]’s serious emotional and behavioral issues will
       change.

       * This writer is troubled by her denial of problems, even though she has good
       reason to be sad, anxious or frustrated. Without acknowledging problems, one
       cannot begin to make positive changes. Due to her denial of problems, it is
       difficult to offer an accurate diagnosis. For example, although a review of her
       records referred to hallucinations which were recognized by other mental
       health professionals, she denied this history and denies current concerns.

       * Her pattern of avoiding medications also places her “at risk” for
       decompensation.

       * Her lack of a stable residence creates the potential for placing her children
       in an unsafe situation.

       * This woman has a remarkable number of psychiatric hospitalizations, some
       short-term and others long term. It is difficult to determine with accuracy her
       specific psychiatric history as [Mother] was evasive and did not provide
       specific dates or places and this writer often had to rely on the records
       obtained. Based on the available information, since turning 18, the following
       has occurred:

       * Several admissions at Middle Tennessee Institute.

       * At least four admissions at Moccasin Bend Institute from 2002 to 2004, one
       lasting two months, one lasting five months, one lasting seven days and one
       lasting fifteen days.

       * Generations Group Home (unspecified duration) and Rosewood Group
       Home (one admission lasting at least 30 days).

       * Outpatient services, crisis team contacts (six) and a Battering Program.



                                            -14-
       This would predict the need for future hospitalizations.

       * In recent hospitalizations, she has been diagnosed with Schizoaffective
       Disorder, a serious psychiatric disorder . . . .

Mother provided no witnesses to testify as to her competency.

         Based upon Dr. Hillner’s comprehensive assessment, written report, and his testimony
at trial, the trial court concluded as a matter of law that Adoptive Parents proved by clear and
convincing evidence that Mother is (1) presently incompetent to adequately provide for the
care and supervision of the Child because of mental impairment, and (2) such mental
impairment is so likely to remain that it is unlikely that Mother will be able to resume care
or responsibility for the Child in the near future. We find that the evidence meets the high
standard required to terminate Mother’s parental rights on the basis of mental incapacity.


             INDEPENDENT EXPERT’S REPORT AND TESTIMONY

        The trial court, at the request of Adoptive Parents pursuant to Rule 35.01, Tennessee
Rules of Civil Procedure, appointed Dr. Hillner as an independent medical examiner to assess
Mother’s mental condition. Mother’s counsel thereafter filed a motion for protective order,
requesting limitations on what Dr. Hillner could order and review. The trial court directed
that Dr. Hillner’s access to Mother’s mental health history be restricted to her records as an
adult. Due to a clerical error, however, Dr. Hillner did not receive a copy of the protective
order and obtained some of Mother’s minor records. He submitted a report which referenced
some records dated prior to Mother’s 18th birthday. Mother’s counsel argued that Dr. Hillner
was “tainted” or “prejudiced” by his review of some of Mother’s earlier medical records and
sought to have him excluded as an expert. The trial court entered an order directing Dr.
Hillner to issue a new report that would exclude the use of or reference to any of Mother’s
earlier medical records.

       Dr. Hillner’s trial testimony was that he had plenty of adult data on Mother to reach
his conclusions:

       Q.     Dr. Hillner, how many years of data did you have for that amended
              report, number two, post 18th birthday?

       A.     Since she has been 18, so eight, nine years.

       Q.     Now in your professional opinion, is that enough data to reach a valid

                                              -15-
              supportable conclusion?

       A.     Yes.

Upon questioning by Mother’s counsel, Dr. Hillner related the following:

       [I]n all evaluations I try to look at where that person is right now, or at least for
       the past few years. Things change during childhood. Things change and
       evolve. My recommendation is based on testing that I did right now, my
       observations of her during this – the evaluation process, interviewed her train
       of thought currently, and all the variety of data that I’ve already listed. So it
       was really focused on what she’s currently doing.

        The trial court questioned Dr. Hillner specifically about whether his conclusions as
Mother’s present mental condition and likelihood of change in the future was based
exclusively on her medical history since age 18 forward. The court apparently found his
testimony on this issue to be credible, as the trial court’s opinion concludes that “Dr. Hillner,
solely on her medical records after [Mother] was 18 years old as well as his interviewing and
testing of her, concluded that Erykah should not be returned to [Mother] under Tenn. Code
Ann. [section] 36-1-113(g)(8)(B).” We find that the evidence supports the trial court’s
conclusion that Dr. Hillner’s conclusions were not tainted by consideration of any of
Mother’s juvenile mental health history.


                                      BEST INTEREST

       Having concluded that there was clear and convincing evidence supporting the
statutory grounds to terminate Mother’s parental rights, we must consider whether
termination of Mother’s parental rights was in the best interest of the Child. In making this
determination, we are guided by the non-exhaustive list of factors provided in Tennessee
Code Annotated section 36-1-113:

       (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;

                                               -16-
               (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 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) (2010). “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

                                               -17-
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 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).

       Mother contends that the trial testimony does not demonstrate that it would be in the
Child’s best interest for her parental rights to be terminated. Adoptive Parents submit that
the evidence clearly demonstrates that the Child’s best interest is best served by the
termination of Mother’s parental rights.

       The trial court made the following conclusions regarding the nine factors:

       (1) [Mother] has not taken or made any adjustments regarding her mental
       illness and economic, housing and transportation issues which would make it
       in Erykah’s best interest to be placed in [Mother]’s home. [Mother] does not
       believe that she needs any medication for her illness. [Mother] does not have
       a stable home.

       (2) Neither parent has maintained visitation or other contact with Erykah,
       during the applicable four month period or any other time period.

       (3) A meaningful relationship does not exist between either parent or Erykah.
       Indeed, at this time, it does not appear that either [Mother] nor [Putative
       Father] has a meaningful relation with each other either.

       (4) A change in the child caretakers and physical environment would have a
       terrible effect on Erykah’s emotional and psychological condition. She has
       been with [Adoptive Parents] for over 18 months. She is only 25 months old.
       Erykah is stable and her behavior and actions conform to expected social
       standards.

       (5) [Mother] has shown neglect of Erykah by violating the criminal laws,
       being arrested, and spending time in jail. She has failed to maintain
       employment and support of Erykah. She has no stable home nor
       transportation.

       (6) [Mother] is unemployed and living from Social Security disability, food
       stamps and other welfare. It is not known whether [Putative Father] is
       employed or not.

                                              -18-
(7) [Mother] has never had steady employment. Her last employment was in
2008.

(8) Neither parent has paid any child support to [Adoptive Parents] for
Erykah.

The termination of the parental rights of [Mother] . . . to Erykah, pursuant to
the factors set forth in Tenn. Code Ann. [section] 36-1-113(i)(1-)-(9), is in the
child’s best interest because:

       (a) Erykah [C.] has bonded with [Adoptive Parents] and their
       children. [Adoptive Parents] have established a meaningful
       parent-child relationship with Erykah during the 18 months
       Erykah has lived with them; neither parent has a meaningful
       parent-child relationship with Erykah;

       (b) Erykah is part of a eight-person family unit that includes
       married persons in the father and mother roles and five siblings;

       (c) [Adoptive Parents]’ home is safe, secure, stable and healthy
       and there is no evidence to support any contention to the
       contrary;

       (d) Erykah has lived with [Adoptive Parents], who have been
       responsible for her education, medical and dental treatment,
       clothing, shelter and other necessitities of life since April 21,
       2011;

                                     ***

Neither [Putative Father] nor [Mother] has paid any support at all for Erykah
within the applicable four (4) month period or any other period. Instead,
[Adoptive Parents] have met all of Erykah’s needs through their own funds.

The adoption of Erykah into a two-parent family, one in which Erykah already
perceives Daniel S. H. as her father figure and Tabitha R.H. as her mother
figure, plus [Adoptive Parents]’ five biological children as her siblings, would
be in the best interest of Erykah.

Erykah is thriving in a safe, secure, structured, predictable environment where

                                      -19-
       her emotional, physical and spiritual needs are being met by [Adoptive
       Parents];

       It is in the best interests of Erykah [C.] that the parental rights of [Putative
       Father] and [Mother] be terminated in order that the adoption of Erykah [C.]
       can occur[.]

(Some numbering in original omitted). The factors cited by the trial court clearly establish,
by clear and convincing evidence, that termination of Mother’s parental rights is in the best
interest of the Child. It would not be in the Child’s best interest to further delay her
integration into a safe and stable environment in the hope that Mother will be able to
successfully undertake her parental responsibilities.


                                    V. CONCLUSION

       We affirm the order of the trial court terminating Mother’s parental rights. This case
is remanded for further proceedings as may be necessary. Costs are assessed against the
appellant, Karen M. C.




                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




                                             -20-
