                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                             Assigned on Briefs November 03, 2014

                                    IN RE KAYLA E., ET AL.1

                   Appeal from the Chancery Court for Lawrence County
                       No. 1316128    Jim T. Hamilton, Chancellor




                   No. M2014-01162-COA-R3-PT - Filed January 9, 2015


Mother appeals the finding that termination of her parental rights to her child was in the
child’s best interest. Finding no error, we affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., P. J., M. S., and W. N EAL M CB RAYER, J. joined.

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Laura M. E.

Herbert H. Slatery, III, Attorney General and Reporter; and Jordan Scott, Assistant Attorney
General, Nashville, Tennessee, for the appellee, Tennessee Department of Children’s
Services.

                                                 OPINION

       Laura M. E. (“Mother”) is the mother of five children and appeals the termination of
her parental rights to one child, Shelby K., born June 2006.2 Shelby, along with Kayla and
Daniel, were placed in the custody of the Department of Children’s Services (“the


        1
           This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
        2
          The termination proceeding initially involved three of Mother’s children: Kayla E., Daniel G., and
Shelby K.; an amended petition was filed to withdraw Kayla E. and her father Buford E. from the proceeding.
Charles G., the father of Daniel G., surrendered his parental rights prior to the institution of the proceeding;
at trial Mother voluntarily surrendered her rights to Daniel G. The case proceeded to terminate the rights
of Mother and Timothy K. to Shelby K.; Timothy K. does not appeal the termination of his rights.
Department”) on June 30, 2011, as a result of a dependent and neglect proceeding filed by
the Department in Lawrence County Juvenile Court. An adjudicatory hearing was held on
August 15, and on August 16, the court entered an order finding the children dependent and
neglected within the meaning of Tenn. Code Ann. §§ 37-1-102(b)(1) and (12)(B), (F), and
(G). Thereafter permanency plans were adopted on August 2, 2011, February 22, 2012,
August 2, 2012, and January 24, 2013; Mother signed each of the plans.

        The Department of Children’s Services (“the Department”) filed the Petition to
Terminate Parental Rights in the Chancery Court of Lawrence County on January 14, 2013.
The grounds alleged to terminate Mother’s parental rights to Shelby were abandonment by
failure to visit and support within the meaning of Tenn. Code Ann. §§ 36-1-113(g)(1) and
36-1-102(1)(A)(i), (1)(C) and (1)(E), substantial noncompliance with the permanency plans,
Tenn. Code Ann. § 36-1-113(g)(2), and persistence of conditions, Tenn. Code Ann. § 36-1-
113(g)(3); the petition also alleged that termination of Mother’s rights was in the best interest
of Shelby.

       Trial was held on April 30 and May 1, 2014, and on May 16, the court entered an
order terminating the Mother’s parental rights to Shelby K. and Daniel G. As respects the
termination of Mother’s rights to Shelby, the court found that Mother failed to comply with
the responsibilities and requirements of the permanency plans and that she had not remedied
the conditions that led to Shelby’s removal from her custody; the court determined, for
numerous reasons, that termination of Mother’s rights was in Shelby’s best interest.

       Mother appeals, articulating the following issue:

       I. Whether clear and convincing evidence supports the trial court’s
       determination that termination of [Mother’s] parental rights was in the best
       interests of Shelby K. K.

I. S TANDARD OF R EVIEW

       A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). A party seeking to terminate the parental rights of a biological parent
must prove at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-
113(c)(1); In re D.L.B., 118 S.W.3d 366–67 (Tenn. 2003); In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002). Secondly, the party must prove that termination of the parental rights of
the biological parent is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2).

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        Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 766– 69; In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry
must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); In
re Valentine, 79 S.W.3d at 546. In light of the heightened standard of proof in these cases,
a reviewing court must adapt the customary standard of review set forth by Tenn. R. App.
P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court’s
findings of fact, our review is de novo with a presumption of correctness unless the evidence
preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then
determine whether the facts, as found by the trial court or as supported by the preponderance
of the evidence, clearly and convincingly establish the elements necessary to terminate
parental rights. Id.

II. D ISCUSSION

       Although Mother does not contest the sufficiency of the evidence to establish the
grounds for termination of her rights, we have reviewed the record and determined that the
evidence clearly and convincingly proves the grounds of failure to comply with the
permanency plans and persistence of conditions. Thus, the issue we address is the
sufficiency of the evidence to support the finding that termination of Mother’s rights was in
Shelby’s best interest.

      Our legislature has set out a list of factors at Tenn. Code Ann. § 36-1-113(i) to be
followed in determining whether termination of a parent’s rights is in a child’s best interest.3


       3
           The factors at Tenn. Code Ann. § 36-1-113(i) are:

       (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
                                                                                                  (continued...)

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The list of factors in the statute is not exhaustive, and the statute does not require every factor
to appear before a court can find that termination is in a child’s best interest. In re S.L.A.,
223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing State of Tenn. Dep’t of Children’s Servs.
v. T.S.W., 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., 2006 WL
3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).

       With respect to Mother’s rights to Shelby, the trial court held:

               12.     It is in [Shelby’s] best interest for termination to be granted as
       to [Mother] . . . because [she has] not made such an adjustment of
       circumstance, conduct or conditions as to make it safe and in the children’s
       best interest to be in [her] home[s].
               ***
               15.     It is in [Shelby’s] best interest for termination to be granted as
       to [Mother] . . . because a change of caretakers and physical environment
       resulting in a return to [Mother] is likely to have a detrimental/negative effect
       on the [Shelby’s] emotional, psychological and medical condition.
               ***
               17.     It is in [Shelby’s] best interest for termination to be granted as
       to [Mother]. . . because [Mother’s] mental and/or emotional status[] would be
       detrimental to [Shelby] and/or prevent [Mother] from providing safe and stable
       care and supervision for [Shelby] and from effectively parenting [Shelby].
               18.     It is in [Shelby’s] best interest for termination to be granted as
       to [Mother]. . . because [Mother has] not paid child support consistently with
       the child support guidelines promulgated by the Department of Human
       Services pursuant to Tenn. Code Ann. § 36-5-101.




       3
        (...continued)
       shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the
       child, or another child or adult in the family or household;
       (7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe,
       whether there is criminal activity in the home, or whether there is such use of alcohol,
       controlled substances or controlled substance analogues as may render the parent or
       guardian consistently unable to care for the child in a safe and stable manner;
       (8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental
       to the child or prevent the parent or guardian from effectively providing safe and stable care
       and supervision for the child; or
       (9) Whether the parent or guardian has paid child support consistent with the child support
       guidelines promulgated by the department pursuant to § 36-5-101.


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              19.    It is in [Shelby’s] best interest for termination to be granted as
       to [Mother]. . . because [Mother has] not paid a reasonable portion of the
       children’s substitute physical care and maintenance when financially able to
       do so.
              20.    It is in [Shelby’s] best interest for termination to be granted as
       to [Mother]. . . because [Mother has] shown little or no interest in the welfare
       of the children.
              21.    It is Shelby K.’s best interest for termination to be granted as to
       [Mother] . . . because Shelby has disclosed she was sexually abused by
       [Mother].

       The evidence bearing on the court’s findings relative to Shelby’s best interest was
extensive. Tina Waits and Jennifer Palmer, case workers with the Child Protective Services
Division of the Department, testified regarding the Department’s involvement with the family
for several years, and the conditions and circumstances which led to the filing of the
dependent and neglect proceeding. Haley Meares, a family service worker with the
Department, began working with the family when the children were placed in the
Department’s custody. Ms. Meares testified at length regarding Shelby’s condition when she
came into custody and the conditions in Mother’s home which had not been remedied since
that time; Ms. Meares had concerns, specifically related to the safety and stability of the
home environment and Mother’s inability after two years to complete a series of parenting
classes. Michele Ries, a licensed clinical social worker who had provided trauma-focused
cognitive behavioral therapy for Shelby since October 2011, testified at length as to Shelby’s
physical and developmental condition when she began therapy as a five year old, and the
“amazing” progress Shelby had made while in foster care; Ms. Ries also expressed concerns
regarding domestic violence in Mother’s home, Mother’s pattern of cohabitating with men
who are physically, sexually or mentally abusive to Mother’s children without her protection,
and Mother’s failure to attend recommended individual and family counseling sessions.
Shelby’s foster mother testified as to Shelby’s condition and needs when she came into foster
care, her progress since that time, and her need for continued services and therapy to address
her developmental problems, social skills, and sexual abuse. Taken as a whole, the testimony
was clear and convincing that termination of Mother’s rights was in Shelby’s best interest
and in accordance with the factors at Tenn. Code Ann. § 36-1-113(i).




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III. C ONCLUSION

      For the foregoing reasons, we affirm the decision of the trial court terminating
Mother’s parental rights.




                                              ________________________________
                                              RICHARD H. DINKINS, JUDGE




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