THOMAS R. FRIERSON, II, Judge.
This is a termination of parental rights action focusing on the two minor children ("the Children") of mother, Sandra W. ("Mother"). A termination petition was filed by the Tennessee Department of Children's Services ("DCS") after the third custody proceeding involving the Children. The petition alleges the statutory grounds of abandonment, substantial noncompliance with the permanency plans, and persistent conditions. Following a bench trial, the trial court granted the petition upon its findings, by clear and convincing evidence, that (1) Mother had abandoned the Children, (2) Mother had failed to substantially comply with the permanency plans, and (3) the conditions leading to removal still persisted. The court further found, by clear and convincing evidence, that termination of Mother's parental rights was in the Children's best interest. Mother has appealed. We affirm.
Mother is a parent of four minor children who were the subject of a series of three separate DCS custody proceedings: twin sons Charles and Christopher, now age eighteen; Savannah, now age fifteen; and Robert, now age fourteen. The prior custody actions occurred in 2000 and from 2005 through 2007. Mother's drug use, the Children's truancy issues, domestic violence, and environmental issues in the home were the causes of the prior proceedings.
The most recent custody episode began when Robert was charged with vandalism and disorderly conduct in December 2010. Robert had previously been charged with truancy, vandalism, and unruliness at school. DCS scheduled numerous meetings with Mother concerning the matters. She cancelled, however, giving various reasons. DCS then petitioned, seeking custody of Robert based upon Mother's non-compliance and failure to cooperate.
On April 8, 2011, when Mother appeared before the trial court for a permanency plan review hearing, the court ordered Mother to submit to both urine and hair follicle drug screens. Mother refused and was consequently placed in jail for contempt of court. When Mother eventually complied, the drug screens proved positive for amphetamines, marijuana, and opiates. A few days later, DCS received a referral regarding Savannah, who was scheduled for truancy-related court proceedings due to thirty days of unexcused absences. At that point, DCS petitioned for and was granted custody of the remaining children. Three permanency plans were developed and ratified by the court during this most recent custody proceeding.
In the months to follow, Mother was incarcerated on five different occasions, the longest of which extended approximately four months. Mother failed or refused several drug screens during the custody proceeding. She was arrested for driving under the influence of an intoxicant ("DUI") as recently as September 16, 2012. DCS filed a petition seeking termination of Mother's parental rights relative to all four children on August 21, 2012.
Mother presents the following issues for our review, which we have restated slightly:
In a termination of parental rights case, this Court has a duty to determine "whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court's findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. Id.; Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
"Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions." Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that "this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). As our Supreme Court has instructed:
In re Bernard T., 319 S.W.3d at 596.
The trial court, inter alia, terminated Mother's parental rights on the statutory ground that she abandoned the Children by willfully failing to support them. Tennessee Code Annotated § 36-1-113(g)(1) (Supp. 2013) provides, as relevant to this action:
Tennessee Code Annotated § 36-1-102(1)(A) (2010) defines abandonment, in relevant part, as:
Pursuant to the statute, the court must find that a parent's failure to visit or support was willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has previously explained:
In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005).
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 so, and has no justifiable excuse for not doing so." Id. at 864.
Id. (citations omitted). Further, as Tennessee Code Annotated § 36-1-102(1)(G) expressly provides: "Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all parental rights and responsibilities in order for a determination of abandonment to be made."
In its final judgment, the trial court included the following specific findings regarding Mother's willful failure to support the Children:
(Paragraph numbering omitted).
Having carefully reviewed the record in this cause, we conclude that the trial court's findings are supported by a preponderance of the evidence. The petition seeking termination of Mother's parental rights was filed on August 21, 2012. The proof adduced at trial demonstrated that Mother had been incarcerated for part of the four months immediately preceding the petition's filing and had failed to support or to make reasonable payments toward the support of the Children for four consecutive months immediately preceding her incarceration. Mother had, in fact, paid no support whatsoever during the time the Children had been in state custody, which was approximately two years at the time of trial. There was no proof that Mother was incapable of working, as she represented to DCS that she was employed. Further, all three permanency plans referenced Mother's duty to pay child support for the Children, directing both the amount of such support and where it should be sent. The assigned DCS caseworker also testified that Mother was aware of her duty to pay child support. There is clear and convincing evidence demonstrating that Mother willfully failed to support these Children for at least four months prior to her incarceration. The trial court did not err in terminating Mother's parental rights based on this statutory ground.
The trial court found, as an additional statutory ground for terminating Mother's parental rights, that she abandoned the Children by failing to establish a suitable home. Tennessee Code Annotated § 36-1-102(1)(A) also defines abandonment, in relevant part, as:
In its final judgment, the trial court included the following specific findings regarding Mother's failure to establish a suitable home:
(Paragraph numbering omitted.) The trial court concluded that Mother had abandoned the Children by failing to provide a suitable home pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(ii).
The evidence preponderates in favor of the trial court's factual findings. Robert, having been found to be dependent and neglected by order of the trial court on December 20, 2010, was placed in the custody of DCS. Through that order, the court further found that DCS had made reasonable efforts to prevent Robert's removal but that Mother had continually refused to cooperate with in-home services needed to allow Robert to remain in her home. Similarly, Savannah was placed into DCS protective custody by the trial court on April 19, 2011, after Mother failed a court-ordered drug screen. By its order, the court found that reasonable efforts were made by DCS to prevent removal of the Children or that the emergency nature of Savannah's condition or other circumstances prevented reasonable efforts prior to the Children's removal.
During a period of twenty-six months following Robert's removal and a term of twenty-two months following Savannah's removal, DCS made reasonable efforts to assist the Mother in establishing a suitable home for the Children. DCS visited Mother's home, provided information and advice to Mother regarding environmental hazards, and paid Mother's utility bill. DCS provided in-home services to Mother, which addressed such issues as parenting and housekeeping skills. DCS also scheduled a psychological assessment for Mother, which included paying for same and providing transportation. DCS further provided Mother with information regarding a free alcohol and drug assessment and obtained a placement for Mother at a treatment facility, which Mother was unable to attend due to her subsequent incarceration.
Despite these efforts by DCS, Mother made no reasonable effort to provide a suitable home for the Children. At the time of trial, Mother was still residing in the same home that previously presented environmental concerns; the home remained without electricity or running water. Mother's only means of heating the home was by use of a kerosene heater, but when DCS visited the home less than two weeks before trial, Mother was staying with a neighbor because she had no money to buy kerosene. Despite having completed outpatient treatment in 2011, Mother experienced a subsequent relapse, continuing to fail drug screens and incurring a recent DUI charge. Mother had been incarcerated multiple times during the most recent custody event, and other individuals who appeared to be under the influence of drugs were staying at her home at various times when DCS visited. Mother's dearth of effort demonstrates a lack of concern for the Children to such a degree that it appears unlikely that she will be able to provide a suitable home at an early date. The efforts of DCS to assist Mother clearly exceeded the efforts of Mother toward providing a suitable home for the Children. The trial court did not err in finding that Mother had abandoned the Children by failing to provide a suitable home and terminating her parental rights based on this statutory ground.
As previously stated, Tennessee Code Annotated § 36-1-102(1)(A) (2010) defines abandonment, in relevant part, as:
(Emphasis added.) Regarding the ground of abandonment by wanton disregard, the statute does not limit the parent's conduct to any particular four-month period prior to incarceration. In re Audrey S., 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005).
The evidence adduced at trial preponderates in favor of these findings. There was no question that Mother continued to use drugs until the time of trial, despite efforts by DCS to obtain appropriate treatment for her. During the time the Children were in state custody, Mother failed and refused numerous drug screens and was repeatedly incarcerated for charges involving drug and alcohol use. Although Mother had recently sought outpatient treatment, she had not returned to see her drug counselor for five weeks. Mother provided no explanation. The DCS caseworker testified that the Children had significant truancy issues while living with Mother and had been exposed to drug use and domestic violence. At least one child had developed serious drug and alcohol issues himself, requiring two hospitalizations.
The applicable statute does not define "wanton disregard." We have previously explained the purpose behind this statutory section, however, as follows:
In re Audrey S., 182 S.W.3d at 866 (internal citations omitted).
Tennessee courts have recognized in numerous cases that a parent's drug abuse and criminal activity can constitute a wanton disregard for the welfare of the child. See In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006); In re Audrey S., 182 S.W.3d at 867-68; In re Daysia D., M2012-00608-COA-R3-PT, 2012 WL 4503202 at *2 (Tenn. Ct. App. Sep. 28, 2012). For example, in Daysia, the mother was convicted of selling drugs within a school zone. Id. at *3. Mother admitted at trial that she also smoked marijuana at home while the children were present but in a different room. Id. This Court found that such behavior constituted a wanton disregard for the children's welfare. Id.
In the case of In re Chyna L.M.D., E2012-00661-COA-R3-PT, 2012 WL 3776699 at *1 (Tenn. Ct. App. Aug. 31, 2012), the father was on probation when the child was conceived. He subsequently violated his probation by failing to appear for court and testing positive for illegal drugs. Id. The father was offered the opportunity to participate in the "Community Alternatives to Prison Program" ("CAPP"), which would have allowed him to complete his sentence in a halfway house and remain in the community with his girlfriend and child. Id. When the father appeared in court for a hearing, however, he behaved in such a manner that the CAPP offer of enhanced probation was withdrawn. Id. Consequently, the father's probation was revoked, and he was returned to prison. Id. This Court found that such conduct was sufficient to establish that the father exhibited a wanton disregard for the welfare of his unborn child. Id. at *5.
Similarly, in the case at bar, Mother continuously engaged in drug use and criminal behavior, which affected her ability to provide a suitable home for the Children. The Children were exposed to drug use and domestic violence in the home. Mother failed to remedy her drug problem, which had existed for many years. Mother instead chose to embark upon a course of continuing drug abuse and criminal activity, leading to multiple incarcerations. We conclude that Mother clearly engaged in conduct prior to her incarceration that exhibited a wanton disregard for the welfare of the Children. There is clear and convincing evidence to support the trial court's termination of Mother's parental rights on this statutory ground.
The trial court also terminated Mother's parental rights, inter alia, on the ground that she failed to substantially comply with the reasonable responsibilities set out in her permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) (Supp. 2013) provides, relevant to this action, as follows:
In its findings regarding Mother's efforts under the permanency plans, the trial court stated in relevant portion:
(Paragraph numbering omitted.)
Upon careful review, we determine that a preponderance of the evidence supports these findings. DCS personnel's testimony established that Mother was living in a home with no utilities, including no running water. Mother had never provided any proof of her employment or her prescriptions to DCS. Although Mother had submitted to a few drug screens, usually not when initially requested, she also had failed or refused numerous other drug screens. The caseworker testified that during one or two visits to Mother's home, another individual was present who appeared to be under the influence of drugs. Mother also continued to incur criminal charges and was repeatedly incarcerated.
The psychological examiner retained by DCS to perform Mother's mental health evaluation testified that Mother suffered from a serious substance abuse problem, such that it was difficult to discern whether Mother's symptoms were indicative of mental health issues or the result of substance abuse. The examiner further testified that Mother needed to be detoxified and participate in inpatient treatment. He opined that Mother's prolonged addiction would be particularly difficult to overcome. The drug counselor who had met with Mother during three outpatient appointments at the close of 2012 testified that Mother had not returned for five weeks by the time of trial. Mother had never contacted the counselor to explain why she had not honored her appointments. The counselor concluded that Mother was not trying to remedy her drug problem. As the counselor testified, she advised Mother concerning free Narcotics Anonymous meetings and suggested that Mother attend ninety meetings in ninety days. Mother, however, failed to attend any such meetings.
Regarding a parent's substantial noncompliance with a permanency plan, this Court has previously explained:
In re M.J.B., 140 S.W.3d 643, 656-57 (Tenn. Ct. App. 2004) (internal citations omitted).
In the present action, the Department demonstrated that the requirements of the permanency plans were reasonable and related to remedying the conditions initially causing the Children to be removed from Mother's custody. The evidence also preponderates in favor of a determination that Mother's noncompliance with the reasonable requirements in her permanency plans was substantial, as she never seriously addressed her drug problem, did not follow the recommendations of her mental health evaluation, continued to incur criminal charges, associated with others who abused drugs, and did not maintain a suitable home with utilities to which the Children could return. We therefore conclude that there was clear and convincing evidence of the statutory ground of Mother's substantial noncompliance with the requirements of the permanency plans. The trial court did not err in terminating Mother's parental rights based upon same.
The trial court also found that Mother's parental rights should be terminated based upon the statutory ground of persistent conditions. Although Mother did not appeal the trial court's determination in this regard, we will nonetheless address this ground in our analysis due to the "importance of permanently placing children and the just, speedy resolution of cases." In re Angela E., 303 S.W.3d 240, 251 n. 14 (Tenn. 2010).
Tennessee Code Annotated § 36-1-113(g)(3) provides, as an additional ground for termination of parental rights:
The trial court made the following findings with regard to this statutory ground:
(Paragraph numbering omitted.)
Upon a thorough review of the record, we conclude that these findings are supported by a preponderance of the evidence. The Children were removed for a period of more than six months, and the predominant condition leading to removal, Mother's drug problem, still persists. Mother did not comply with treatment recommendations and continued to fail or refuse drug screens. She accrued drug and alcohol-related criminal charges up to the date of trial. There is little likelihood that this condition will be remedied in the near future, as the evidence at trial demonstrated that Mother had battled this issue for at least thirteen years and was doing little or nothing to address it. The evidence also demonstrated that continuation of the parent and child relationship greatly diminishes the Children's chances of integration into a safe, stable, and permanent home. We conclude that the trial court properly terminated Mother's parental rights based on this statutory ground as well.
Finally, Mother contends that there was not clear and convincing evidence that termination of her parental rights was in the Children's best interest. We disagree. When a parent has been found to be unfit by establishment of a statutory ground for termination of parental rights, as here, the interests of parent and child diverge, and the focus shifts to what is in the child's best interest. In re Audrey S., 182 S.W.3d at 877. Tennessee Code Annotated § 36-1-113(i) (Supp. 2013) provides a list of factors the trial court is to consider when determining if termination of parental rights is in the child's best interest. This list is not exhaustive, and the statute does not require the court to find the existence of every factor before concluding that termination is in a child's best interest. In re Audrey S., 182 S.W.3d at 878 ("The relevancy and weight to be given each factor depends on the unique facts of each case."). Further, the best interest of a child must be determined from the child's perspective and not the parent's. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:
In determining that termination of Mother's parental rights was in the best interest of the Children, the trial court stated:
Again, we determine that the evidence adduced at trial supports the trial court's findings. This was the third custody proceeding involving these Children. At the time of trial, DCS had been involved with this family for approximately thirteen years. Mother had failed to make an adjustment of her circumstances or conduct such that it would be safe for the Children to be returned to her, despite reasonable efforts by DCS. By the time of trial, the Children had been in state custody for approximately two years. Mother's drug problem had persisted for many years without any substantial effort at remedying same by Mother. An appropriate adjustment does not appear reasonably possible. Although Mother had continued visitation with the Children, there was no testimony regarding whether she maintained a meaningful relationship with them. Testimony was presented evincing that returning the Children to Mother would be detrimental to them emotionally, psychologically, and medically. Mother had not attended to the Children's medical, educational, or emotional needs while they were in her care, and the testimony established that she was unlikely to do so in the future.
DCS personnel testified that the Children were doing well in their current placements and that Robert especially needed significant environmental structure in order for his needs to be met. DCS employees opined that permanency could be achieved for the Children and that it was detrimental for the Children to remain in foster care indefinitely. Additional testimony was presented that Mother had, in recent months, aided one of her older sons in an attempt to run away from his DCS placement. According to the testimony, Robert was caught possessing cigarettes after Mother's visit with him in December 2011.
The DCS employees' testimony established that Mother had subjected the Children to an environment of drugs and domestic violence when they were in her home. Mother continued to test positive for illicit drugs, incur criminal charges, and allow other persons who were under the influence of drugs to remain in her home. According to the psychological examiner who assessed Mother, she needed to be detoxified and undergo serious inpatient drug treatment before her mental status could be accurately evaluated. He also explained that Mother's continuing drug use created a risk for the Children. The evidence supports a determination that Mother's mental and emotional status would prevent her from effectively providing safe and stable care for the Children. Finally, Mother had paid no child support despite being aware of her duty to do so.
Following a thorough review of the record, we conclude that there is clear and convincing evidence that termination of Mother's parental rights is in the best interest of the Children. We discern no error in the trial court's determination that Mother's parental rights should be terminated.
The judgment of the trial court terminating the parental rights of Mother is affirmed. Costs on appeal are taxed to appellant, Sandra W. This case is remanded to the trial court, pursuant to applicable law, for enforcement of the trial court's judgment and collection of costs assessed below.
