                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                      October 28, 2014 Session

                                     IN RE SHANEEQUE M.1

                       Appeal from the Circuit Court for Blount County
                        No. E-24985    Tammy M. Harrington, Judge




               No. E2014-00795-COA-R3-PT-FILED-NOVEMBER 20, 2014


This is a parental rights termination appeal brought by the mother. The trial court found clear
and convincing evidence to support the grounds for termination and clear and convincing
evidence that termination was in the child’s best interest. The mother appeals. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and T HOMAS R. F RIERSON, II, JJ., joined.

Sherif Guindi, Knoxville, Tennessee, for the appellant, Kimberly M.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

Wade Jenkins, Knoxville, Tennessee, Guardian ad Litem.

                                                OPINION

                                          I. BACKGROUND

      Shaneeque R.M.M. (“the Child”) was born on February 21, 2013. She entered the
custody of the Department of Children’s Services (“DCS”) on February 28, 2013, seven days


        1
         To protect the identity of children in parental rights termination cases, initials are used instead of
last names.
after her birth. DCS has an extensive history of involvement with the Child’s mother,
Kimberly M. (“Mother”), who has had her parental rights to four other minor children
terminated. In Re Zacharias T.M., et al., 403 S.W.3d 212 (Tenn. Ct. App. 2012). Two other
children were placed with an out-of-state relative.

       The Child at issue in this appeal was removed from Mother’s custody due to
environmental concerns, lack of a car seat, and lack of a crib. In April 2013, following a
parole violation, Mother was incarcerated. On April 25, 2013, DCS filed a petition to
terminate Mother’s parental rights. It was stipulated by the parties that Mother was
incarcerated from April 5 to April 24, 2013.

        The trial in this matter was held on January 27, 2014. Mother acknowledged that she
has given birth to seven children and indicated that she was again pregnant.2 She named
Reginald J. R. (“Father”) as the Child’s father and indicated he is also the father of any child
or children resulting from her current pregnancy. Previously, Mother misidentified the
Child’s father as “Reggie Robinson.” According to Mother, that was the name Father gave
her, he is a big man, and she had no right to question him or to ask to see his license. Father
voluntarily surrendered his parental rights to the Child on April 4, 2013, and is not a party
to this appeal. Initially, Mother would not acknowledge whether Father used illegal drugs,
but then admitted he had used illegal drugs in her presence. She denied currently using
illegal drugs, but admitted using such drugs in the past. She acknowledged using cocaine
before she became pregnant with the Child. However, she tested positive for cocaine in a
hair follicle collected in December 2013.

        In addition to the April 2013 arrest for a probation violation,3 Mother noted that she
was again incarcerated in August 2013. According to Mother, she had previously plead
guilty to attempted child abuse.4 and for driving under the influence in 2011.5




        2
            At a prior hearing, Mother stated she was expecting quadruplets.
        3
         Complaint states Mother willfully failed to pay the fine and costs, failed to appear in court as
ordered, and failed to comply with rules of her probation.
        4
         Complaint states Mother arrived at a friend’s home “intoxicated carrying a large bottle of rum (1/3
consumed) . . . . argumentative, spitting and engaging in an altercation with [the friend]’s 15 yr. old son.”
The friend was keeping Mother’s four daughters for weekend visitation. According to the complaint, Mother
“knowingly arrived at the residence under the influence, refused to administer medical aid to her child and
intended to take custody of aforementioned children for the weekend in this neglectful state.”
        5
            She was arrested for DUI in September 2011 in Blount County.

                                                     -2-
        Mother testified that she has anxiety, nerve problems, and a number of physical
ailments and receives a disability check for physical and mental issues. Although prescribed
Depakote for depression in 2008, Mother did not refill the prescription, indicating she does
not feel she has any psychological problems. In 2011, Mother was involuntarily admitted to
Lakeshore Hospital. DCS requested that Mother have a psychological examination, but she
did not complete it prior to the trial. She claimed to have two psychological exams scheduled
for after the trial.

       The home Mother resides in is owned by her stepfather, Allen B. (“Stepfather”).
According to Mother, in the past, Stepfather has assaulted her five times, including “two
attempts to kill.” She further indicated Stepfather has subjected her to physical and sexual
abuse, dating back to 1987. Mother claimed Stepfather makes threats regarding black people
and racially charged comments about the Child, who is biracial. She had Stepfather served
with an order of protection, but at the time of trial, he apparently still lived with Mother in
the house. Based on the most recent order of protection of record, Mother was authorized to
retrieve her belongings from the home, rather than live there. Mother, however, claimed that
the order had been amended before the trial to allow her to stay in the house.

        At the time the Child was born, Mother had no car seat or crib, and planned for the
Child to sleep on a “normal” mattress on a waterbed frame. She acknowledged that presently
her home was not safe enough for the Child, but claimed she was in the process of making
it safer. Mother admitted that her living conditions have been a concern for DCS over the
years.

        In her trial testimony, Mother claimed that she planned to obtain employment, but
also stated she did not have the ability to work. Her sole income is the disability check.
After deductions and garnishments for child support and court fees, Mother is left with $326
per month. Mother asserted this amount is sufficient income for her to provide a home and
for the Child’s needs, but then testified to $400 in monthly expenses.

       Despite acknowledging she did not visit the Child for a four and a half month period
from the time the Child was removed until July 2013, Mother asserted she has a bond with
the Child. She admitted that she had spent a total of 24 hours with the Child since the
infant’s removal.

        Laura Hamilton, a DCS case manager, testified that she had visited Mother’s
residence. Ms. Hamilton noted that just weeks before the trial, the home was cluttered with
piles of clothes, some of which were piled on top of space heaters. She described a pathway
to walk inside the home and observed that she could see only 25% of the floor due to the
clutter. Additionally, she noted there was a wood-burning fireplace without a safety gate,

                                              -3-
cabinets without doors, and outlets without covers. She further noted the roof appeared ready
to cave in. After subsequent follow up visits, Ms. Hamilton opined that there has been no
change in conditions in the home other than Mother obtaining a smoke detector. As recently
as the Friday before the trial, Ms. Hamilton determined Mother had made no improvements.

         In her testimony at trial, Ms. Hamilton related that Mother spent a total of eight hours
with the Child since October 1, 2013. Mother had one visit in October, two visits in
November, zero in December, and one in January. Ms. Hamilton admitted there would have
been an additional visit but for an illness the Child was experiencing. With the exception of
a visit in January, the Child cried throughout each of the visits. According to Ms. Hamilton,
the Child has bonded with her foster parents and is a happy child. A sibling is in the same
foster home with her; three of her other siblings have been adopted by the mother of the
Child’s current foster mother.

       Ms. Hamilton reported that DCS offered services to Mother, including parenting
classes in the home and a psychological exam. Mother subsequently missed two scheduled
appointments for the psychological exam. She started the parenting classes just prior to trial.
According to DCS, difficulty was had keeping in contact with Mother as she had moved and
changed her phone number.

       Jessie McCoy, a case manager employed by Smokey Mountain Children’s Home, was
assigned to the Child’s case in March 2013. Ms. McCoy noted that she became aware of
Mother through experiences with the other children in state custody. She observed that
Mother’s current behavior is consistent with her prior actions with her older children. Ms.
McCoy noted that during visitation, the Child stayed upset and did not seem to know Mother.

       Delsa Spence, a DCS case manager, related that she visited the home and spoke with
Stepfather. He indicated on one occasion that Mother did not live there, but admitted on
another occasion that she did reside there. According to Ms. Spence, Mother initially had
regular visitation with the Child. However, between visits with the Child on April 2, 2013,
and September 11, 2013, Mother disappeared and provided no explanation for her absence.6
Ms. Spence observed that the Child has bonded with the foster family and they desire to
adopt the Child. Mother informed Ms. Spence that she would get a mental health assessment
but never provided any documentation.

      On April 17, 2014, the trial court terminated the parental rights of Mother on the
grounds of wanton disregard and mental incompetence. The court further found that
termination of Mother’s parental rights was in the best interest of the Child. The trial court

       6
           Mother’s incarceration began on April 5, 2013.

                                                    -4-
observed, inter alia, the following:

       THE COURT: . . . The respondent was in jail part or all of four months just
       before this petition was filed. There was a stipulation that [Mother] was
       incarcerated from April the 5th, 2013, to April 24th, 2013. This petition was
       filed April the 25th.

       As stated for number two, before going to jail she was engaged in conduct that
       exhibits a wanton disregard for the [C]hild’s welfare.

       . . . DCS involvement started in large part due to her previous termination --
       involuntary termination of four children and then her bringing the [C]hild
       home . . . . [S]he did not have a crib for the [C]hild. . . . [T]he [C]hild was
       sleeping on a waterbed with a mattress for a regular bed and that there were
       spaces. [Mother] said it was an inch; the other testimony was larger than that,
       but that it was not appropriate. There were clothes piled on the bed, et cetera,
       and that was one of the main triggering events that brought the [C]hild into
       custody.

       So that happened before her incarceration. She brought the [C]hild home to
       this residence on Clover Hill where she resides with [Stepfather]. And I do
       find that what has happened in relation to [Stepfather] and the Order of
       Protection and the facts contained therein . . . are relevant because a great deal
       of the information or a lot of the information that was in that petition predates
       the birth of th[e C]hild and were conditions that were in place that she knew
       about before she brought th[e C]hild home. Further, that the residence was not
       -- not only was her fellow occupant not appropriate but the home was not in
       an appropriate condition.

       . . . [P]rior to her incarceration she testified that at the time this action was
       initiated she did not know -- or that [Father] had given her the [false] name,
       that she did not know him, or that she did not have his full legal name, and she
       explained why she didn’t. I understand what she said, but that she remained
       with him, stating that the last time he assaulted her domestically was April the
       2nd, 2013, which was prior to her incarceration.

       And I think that it is relevant that her testimony here today was that she still
       even after that April the 2nd, 2013, domestic assault engaged in some form of
       relationship with [Father], including that if she is pregnant, that he is the father
       of the child -- children. I’m not sure how to term the next pregnancy. But that

                                               -5-
relations continued even after he was abusive and she knew that.

So I find that all of those things were in place as well as that she had a history
based upon her previous -- and I’m not going to give this as much weight as
the issues with [Stepfather] and [Father] and the home and the living
conditions, but she had lost previous children. And part of the issues that she’s
had throughout the years has been mental health issues. That was part of the
recommendation when [the Child] was taken into custody, and she did not
follow through with mental health treatment or a full assessment February,
March and April 10 2013 prior to her going to jail.

                                      ***

So the history of the issue of mental health treatment has been persistent well
before the filing of this petition April 25th, 2013. And given the ramifications
that have happened in [Mother]’s life due to the mental health issues and the
recommendations for mental health treatment, I find that is a fact that I can
find, and I am going to consider that’s something that happened prior to her
incarceration in April.

I find all of those facts by clear and convincing evidence, and I find that based
upon all of those facts, the history, and the record as a whole, that the State has
met its burden as to Ground One for wanton disregard by clear and convincing
evidence.

Ground Two, mental incompetence. I’ve touched upon that as part of the
wanton disregard, but I’m going to state for the record -- because a court
transcript sometimes reads very flat -- [Mother]’s demeanor here today was at
times odd, was at times unstable. She was nonresponsive at times to the
questions. She was off-task. She brought up irrelevant facts. She couldn’t
follow the court’s instructions from everything to the volume of her responses,
and she couldn’t conform her behavior. . . .

[Mother], I’m going to state for the purpose of the record -- and you know this
-- you’re very intelligent, and that was borne out by your ability to remember
dates, et cetera. But it was also very apparent at times you did not want to tell
this court the truth. That was very specific in relation to [S]tepfather and other
issues. . . . [Y]our appearance here today was not stable. . . .

                                      ***

                                        -6-
       We do not have testimony from a mental health expert. We do not have
       testimony from a psychologist. I do not have a full psychological evaluation
       before the court, in part because [Mother] didn’t follow through. . . .

                                             ***

       . . . I think that you do care. I think, though, and I’m going to find, that based
       upon all the proof by clear and convincing evidence you care but that you have
       issues in your life mentally and a mental condition that obviously keeps you
       from being able to parent, that keeps you from being able to get your life
       together in such a manner that you provide a safe environment for th[e C]hild.
       And I think that the record bears that out.

       So I do find that the State has met its burden as far as Ground Two as to
       mental incompetence.

                                             ***

In the written final judgment of termination, the court provided:

       [The Child] is bonded with her foster mother and siblings and changing
       caretakers at this stage would be detrimental. She was subjected to neglect as
       a direct result of [ M]other’s actions, which placed her in the home of an
       abuser. The pattern is clear with [Mother] such that she will return to an
       abusive situation as she likely has known no other life. However, [the Child]
       should not be sentenced to the same fate and deserves safety, stability and
       permanency. [Mother] has shown a wanton disregard for the welfare of th[e
       C]hild by her actions and inactions. She is clearly incompetent to parent th[e
       C]hild and there is little chance the condition can be improved so that the
       [C]hild could safely be placed with her in the foreseeable future. She
       continues her relationships with abusive individuals to the point of possibly
       becoming pregnant again by such an individual. She brought this infant home
       from the hospital to [ S]tepfather’s home whom she swore under oath had not
       only physically abused her, but had sexually abused her. . . .

                                             ***

       The Court finds by clear and convincing evidence that [Mother]’s conduct
       prior to her incarceration, including residing with a man she testified had
       physically and sexually abused her for an elongated period of time; remaining

                                              -7-
       in a romantic relationship with someone she testified had physically abused
       her; and her failure to seek any assistance or treatment for her mental health
       issues exhibited a wanton disregard for [the C]hild’s welfare.

       The Court finds by clear and convincing evidence that [Mother] is incompetent
       to provide adequately for the further care and supervision of the [C]hild
       because of a mental condition that so impairs the ability to parent.
       Furthermore, the Court finds by clear and convincing evidence that there is
       little chance that the condition can be improved to such an extent that the
       [C]hild can be placed safely with [Mother] in the foreseeable future.


Mother filed a timely notice of appeal.


                                          II. ISSUES

       We restate the issues raised in this appeal as follows:

       a. Whether clear and convincing evidence supports the trial court’s finding of
       wanton disregard.

       b. Whether clear and convincing evidence supports the trial court’s
       determination that Mother’s mental condition impairs her ability to parent the
       Child.

       c. Whether termination of Mother’s parental rights is in the Child’s best
       interest.

       d. Whether the trial court erred in admitting certain exhibits.


                             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, 92 S. Ct. 1208, 31 L. Ed.2d 551 (1972); In re Swanson, 2
S.W.3d 180, 188 (Tenn. 1999); 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

                                              -8-
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, 117 S. Ct. 555, 136 L. Ed.2d 473 (1996) (quoting Santosky v. Kramer, 455
U.S. 745, 787, 102 S. Ct. 1388, 71 L. Ed.2d 599 (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 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

                                               -9-
       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
       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).

Regarding the credibility of trial witnesses, the reviewing court should give considerable
deference to the trial court’s findings. McCaleb v. Saturn, 910 S.W.2d 412, 415 (Tenn.
1995); see Sonet v. Unknown Father of J.D.H., 797 S.W.2d 1, 5 (Tenn. Ct. App. 1990)
(stating that “the findings of the trial court as to the credibility of the witnesses are entitled
to great weight”).


                                      IV. DISCUSSION

                                A. WANTON DISREGARD

       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 . . . by utilizing 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



                                              -10-
              (2) That termination of the parent’s or guardian’s rights is in the
              best interest of the child.

                                             ***

       (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). Relevant to the facts of this case, Tennessee Code
Annotated section 36-1-102(1)(A)(iv) provides that abandonment means that

       the parent or guardian is incarcerated at the time of the institution of an action
       or proceeding to declare a child to be an abandoned child, or the parent or
       guardian has been incarcerated during all or part of the four (4) months
       immediately preceding the institution of such action or proceeding, and either
       has willfully failed to visit or has willfully failed to support or has willfully
       failed to make reasonable payments toward the support of the child for four (4)
       consecutive months immediately preceding such parent’s or guardian’s
       incarceration, or the parent or guardian has engaged in conduct prior to
       incarceration that exhibits a wanton disregard for the welfare of the child.

Tenn. Code Ann. § 36-l-102(1)(A)(iv) (emphasis added). The statute does not expressly
define the type of conduct that is deemed to exhibit “wanton disregard” for a child’s welfare.
We have repeatedly held, however, that “probation violations, repeated incarceration,
criminal behavior, substance abuse, and the failure to provide adequate support or
supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton
disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d 838, 867–68 (Tenn. Ct.
App. 2005). A parent’s incarceration serves as a triggering mechanism to allow a court to
take a close look at a child’s situation to determine whether the parental behavior is part of
a broader conduct that renders the parent unfit or poses a risk of substantial harm to the
welfare of the child. Id., at 866. Trial courts may look to a parent’s conduct prior to the four
months before a parent’s incarceration in determining whether a parent has exhibited wanton
disregard under Tennessee Code Annotated section 36-1-102(1)(A)(iv). Id., at 870-871.

      In this case, Mother argues that, based upon the plain language of Tennessee Code
Annotated section 36-1-102(1)(A)(iv), the trial court was limited to review of her conduct

                                              -11-
from the time the Child was conceived, presumably in the summer of 2012, to the time of
Mother’s incarceration in April of 2013. Mother contends any conduct that occurred prior
to the Child’s conception or after Mother’s incarceration ended is irrelevant. Mother further
asserts there is no clear and convincing evidence in the record to establish her wanton
disregard of the Child during the period at issue.

        The ground of wanton disregard does not require that the conduct referred to occur
within the four month window prior to incarceration. In re Audrey S., 182 S.W.3d at 865
(“This test has no analog to the first statutory definition of abandonment, and it is not
expressly limited to any particular four-month period.”). See also State Dept. of Children's
Services v. V.N., 279 S.W.3d 306, 320 (Tenn. Ct. App.2008) (wanton disregard shown by
fact that defendant had been incarcerated nineteen previous times). Tennessee Code
Annotated section 36-l-102(l)(A)(iv) reflects the “commonsense notion that parental
incarceration is a strong indicator that there may be problems in the home that threaten the
welfare of the child” and that a “parent’s decision to engage in conduct that carries with it
the risk of incarceration is itself indicative that the parent may not be fit to care for the child.”
In re Audrey S., 182 S.W.3d at 866 (citing James G. Dwyer, “A Taxonomy of Children’s
Existing Rights in State Decision Making About Their Relationships,” 11 Wm. & Mary Bill
Rts. J. 845, 958 (2003)).

       The record before us exhibits clear and convincing evidence of wanton disregard. As
noted by the trial court:

       [Mother] stipulated that she was incarcerated within the four months prior to
       the filing of this petition and [Mother] testified that she was incarcerated again
       in August 2013 for a violation of probation. The Court finds by clear and
       convincing evidence that [Mother]’s conduct prior to her incarceration,
       including residing with a man she testified had physically and sexually abused
       her for an elongated period of time; remaining in a romantic relationship with
       someone she testified had physically abused her; and her failure to seek any
       assistance of treatment for her mental health issues exhibited a wanton
       disregard for [the C]hild’s welfare.

Bringing the Child into the home of a man who has been physically and sexually abusive in
the past in addition to maintaining a relationship with another person who is physically
abusive and uses illegal drugs shows wanton disregard for the Child. Wanton disregard is
also demonstrated by the fact that Mother has failed to seek any treatment for the
psychological issues she demonstrated at trial.




                                                -12-
                            B. MENTAL INCOMPETENCE

      The other ground raised for termination is mental incompetence, Tennessee Code
Annotated section 36-1-113(g)(8):

              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.

Tenn. Code Ann. § 36-l-113(g)(8)(B). Mother argues that a finding of mental incompetence
requires expert testimony or a psychological examination.

        No expert testimony was provided in this matter and the trial court did not have the
benefit of a psychological exam due to the fact that Mother failed to participate in an
evaluation. However, expert testimony on the effect of a parent’s mental illness on his or her
ability to parent a child is not required. See In re Alicia K. A., No. E2012-02614-COA-R3-
PT, 2013 WL 3422973 (Tenn. Ct. App. July 8, 2013); In re B.L.S.C., No. M2008-02301-
COA-R3-PT, 2009 WL 971286*8 (Tenn. Ct. App. April 7, 2009).

       Clear and convincing evidence exists to support the trial court’s findings. Mother has
had all of her children removed from her care and placed in state custody. Evidence exists
to establish that Mother suffers from a mental disability that has rendered her incapable of
caring for all her children for a significant period of years, yet she refuses to follow though
with recommendations for treatment. She has demonstrated a pattern of living with abusive
men, using illegal drugs, and abusing alcohol. During the trial, Mother was “yelling” at the
bench and her answers to questioning were often unresponsive; other replies were untruthful
and evasive. Accordingly, we find ample evidence in the record to establish that Mother
suffers from mental incompetence. Clear and convincing evidence supports the trial court’s
determination.




                                   B. BEST INTEREST

      Having concluded that there was clear and convincing evidence supporting a statutory
ground 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,

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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;

             (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

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              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 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).

       The proof clearly reveals that termination of Mother’s parental rights was in the
Child’s best interest. Mother’s home is not safe for the Child, she has avoided undergoing
a psychological exam, and it appears that she continues to reside with a man she has testified
has physically and sexually abused her. See Tenn. Code Ann. § 36-1-113(i)(1),(2),(6), and
(7). The Child has bonded with her foster parents and is happy. Tenn. Code Ann. §
36-l-113(i)(5). For a period of four and a half months, Mother did not visit the Child and
has only seen her daughter a total of 24 hours since her birth. Thus, Mother did not maintain
regular visitation or have a meaningful relationship with the Child. Tenn. Code Ann. §
36-1-113(i)(3) and (4).


                                C. EVIDENTIARY ISSUES

       Mother contends the trial court erred in admitting orders from the juvenile court into
the record, specifically admitting the Preliminary Hearing Order and Adjudicatory Order
based on statutory law forbidding disclosure of juvenile court case information. It appears
that Mother did not object or argue at trial on this basis and we therefore find the issue to be
waived. Furthermore, we conclude the trial court did not rely upon the evidence.
Additionally, Mother asserts that Rule 404 of the Tennessee Rules of Evidence would bar
admission at trial of an arrest warrant admitted into evidence. We find that Mother stipulated
the arrest warrants were admissible to the extent they show what crime the conviction was
for. Accordingly, any error, if any, in admitting the evidence was harmless.

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                                   V. CONCLUSION

      The judgment of the trial court is affirmed, and this case is remanded for such further
proceedings as may be necessary. Costs of the appeal are assessed to the appellant, Kimberly
M.


                                                   ____________________________
                                                   JOHN W. McCLARTY, JUDGE




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