J. STEVEN STAFFORD, J.
Mother appeals from the trial court's order terminating her parental rights. Discerning no error, we affirm.
The children at issue in this case, Briana H. and Dakoda F., were born in September 2006 and August 2013, respectively.
On January 28, 2016, the Hickman County Juvenile Court entered an order transferring the children to temporary DCS custody, finding that the maternal relatives could no longer care for the children and that no less drastic alternative existed. The court entered a permanency plan on February 16, 2016, the primary goal of which was "return to parent." This plan addressed the initial reasons for removal, namely, Mother's substance abuse, Mother's ongoing mental health issues, the lack of safe, permanent housing for Mother and the children, issues of domestic violence, and the abuse allegations with regard to Dakoda. The permanency plan required the following of Mother: (1) complete in-patient drug and alcohol treatment and follow all after-care recommendations that result; (2) submit to and pass random drug screenings by DCS; (3) identify a sponsor and attend twelve step meetings following Mother's release from treatment; (4) obtain stable housing and maintain housing in a drug-free manner uninterrupted for a period of four months; (5) ensure that the children have no contact with Mother's father or brother, who were both registered sex offenders; (6) complete parenting classes; (7) complete a mental health intake with a mental health provider and follow all recommendations that result; (8) take all medications prescribed for her mental health issues and submit to pill counts by DCS; (9) complete domestic violence counseling; and (10) provide DCS with proof of completion of all tasks.
Following the entry of the permanency plan, the juvenile court held an evidentiary hearing and eventually entered an order adjudicating the children dependent and neglected on March 24, 2016. In the order, the juvenile court made the following findings: (1) Mother admitted to abusing methamphetamine and cocaine; (2) Mother admitted to being addicted to methamphetamine and cocaine; (3) track marks were observable on Mother's arms, despite Mother's denial of the use of needles; (4) Mother admitted to using methamphetamine as recently as January 11, 2016; (5) Mother admitted to striking Dakoda with a switch, although she could not remember the incident due to being under the influence of methamphetamine at the time, and was told of the incident by someone else; (6) Mother was homeless; and (7) Mother attempted to take her own life on January 3, 2016, and was still suffering from suicidal ideations. Importantly, the juvenile court also found that DCS had offered Mother a referral to the Open Door program in Nashville, a program in which the children could accompany Mother while she underwent treatment. Mother, however, refused this offer. The permanency plan from February 16, 2016 was incorporated by reference into the final order of adjudication and disposition.
By all accounts, Mother had some initial success in complying with some requirements in the permanency plan. On January 21, 2016, shortly after the removal of her children, Mother began a twenty-eight day treatment program at Buffalo Valley. After completion of the program, Mother reported feeling "positive and great." As follow-up to her treatment, Buffalo Valley recommended that Mother attend alcoholics anonymous ("AA") and narcotics anonymous ("NA") meetings, locate a permanent sponsor, continue with mental health treatment, and locate housing conducive to recovery. After leaving Buffalo Valley on February 19, 2016, Mother was able to rent a trailer in Hickman County that was near the homes of her sister and father. For a short period of time, Mother successfully paid rent on the trailer. Mother also passed a drug screen that was administered to her on April 18, 2016. During this time, Mother was allowed to exercise eight hours per month of therapeutic visitation with the children.
Soon after acquiring housing, however, Mother relapsed and failed a drug screen that was administered on May 25, 2016. The drug screen showed that Mother was positive for cocaine, opiates, and oxycodone, although Mother maintained that she was prescribed the opiates and oxycodone through a pain clinic.
In addition to her drug screens, Mother was required to attend therapy sessions pursuant to both the permanency plan and the follow-up recommendations of Buffalo Valley; however, Mother failed to attend numerous appointments at Centerstone Mental Health ("Centerstone"). The record reflects that between the entry of the initial permanency plan and the end of October 2016, Mother either cancelled or failed to attend at least ten appointments at Centerstone. As a result of Mother's relapse and her failure to adequately address her mental health issues, the juvenile court determined that a revised permanency plan was necessary. DCS created a new plan on September 20, 2016; Mother's goals and action steps under the new permanency plan remained the same. Mother was provided with and signed the "Criteria for Termination of Parental Rights" on September 20, 2016, indicating that she received a copy and understood the contents. On October 4, 2016, the court ratified the new plan with the added permanency goal of adoption.
Mother's situation continued to deteriorate after the revised permanency plan was created. By the end of September 2016, Mother was evicted from her trailer for nonpayment of rent and was sleeping in her car or staying with friends. While Mother made a second attempt at in-patient drug treatment in November of 2016, she was discharged from Bradford Health Services after only twelve days due to problems with her insurance. Records from this treatment center indicate that Mother was diagnosed with severe amphetamine-type substance use disorder, as well as severe opioid use disorder, and was referred to Health Connect America ("Health Connect") for continuing individual sessions and meetings. Mother's Health Connect records reflect that her attendance was inconsistent; over a six month span, Mother attended three treatment sessions, but cancelled or failed to attend six sessions. Mother rescheduled her initial intake at Health Connect four different times.
On March 7, 2017, the juvenile court found that Mother was noncompliant with her permanency plan at the annual permanency hearing. The court determined that Mother was sleeping in her car at that time, and had failed to take any drug tests since her last court appearance on January 17, 2017. Moreover, Mother cancelled a hair follicle drug screen scheduled by DCS. In the permanency hearing order, the court noted that DCS would proceed with termination if the goals of the permanency plan could not be achieved within six months. However, Mother again tested positive for methamphetamine on March 17, 2017, and the children's guardian ad litem then filed the petition for termination on March 24, 2017. DCS responded by joining in the petition and requesting that it be granted.
The termination petition listed three statutory grounds as the basis for termination of Mother's parental rights: (1) substantial noncompliance with the permanency plan; (2) persistence of conditions; and (3) failure to manifest a willingness and ability to assume custody or financial responsibility for the children. Additionally, the petition averred that termination of Mother's parental rights was in the best interests of the children. In response, Mother filed an answer denying both the grounds for termination and the allegation that termination was in the children's best interests. Trial was set for July 13, 2017 and July 21, 2017, in the Hickman County Juvenile Court. Although DCS attempted to schedule a hair follicle drug screen for Mother between the filing of the petition and trial, Mother cancelled the appointment several times and the test was never completed.
At trial, the court heard extensive testimony from Mother regarding the allegations in the petition. Mother blamed her habitual drug use on a lack of family support, her ongoing depression and anxiety, post-traumatic stress disorder ("PTSD") from suffering sexual abuse as a child, the recent death of her mother, and ineffective treatment programs. Mother also denied having failed the March 17, 2017 drug screen; rather, she claimed that the test was negative and that the DCS worker administering the test failed to notice the "mysterious faint line" indicating that the test was actually negative. Mother claimed at trial that she had not abused methamphetamine since December of 2016. In response to the allegation that Mother physically abused Dakoda while on methamphetamine, Mother claimed that she only "lightly tapped" Dakoda with a switch, although she did not deny that she was under the influence of illegal drugs when the incident occurred.
When questioned about her failure to consistently follow up with therapy or drug treatment after-care as required by the permanency plan, Mother repeatedly testified that she often could not attend meetings and appointments due to her lack of reliable transportation. Although Mother acknowledged that she knew of some transportation options through TennCare, she opined that she was unsure if this would be available to her because she had no permanent address, and thus had not explored this option. Mother also admitted that she possessed two different vehicles at various times during the pendency of this case; the first was repossessed, and the second was determined to have been stolen and was confiscated by police shortly before trial. Mother testified that she had no knowledge that the second car was stolen. At the time of trial Mother admitted that she had no vehicle and no permanent housing.
Mother also adamantly denied that DCS sufficiently aided her in locating appropriate housing for herself and her children, claiming that DCS failed to provide her with a list of resources for appropriate housing. Mother further testified that none of the housing in Hickman County was affordable, and that she was unable to apply for Section 8 housing because her social security card had been stolen. Notably, Mother admitted that during the eighteen months her children were in DCS custody, Mother declined to search for employment as recommended by DCS.
The trial court also heard from Brittney Blalock, the family service worker assigned to this case from its inception. Ms. Blalock testified that the children had been in foster care for eighteen consecutive months, and that throughout most of that time Ms. Blalock was able to stay in contact with Mother. Ms. Blalock noted that Mother did well in her efforts to comply with the permanency plan at first, but that after Mother was evicted from her trailer in September 2016, it became more difficult to communicate with Mother and that her relationship with Mother deteriorated.
According to Ms. Blalock, Mother failed to adequately address her drug addiction or mental health issues by the time of trial. Ms. Blalock stated that Mother never provided any reasons as to why she was not consistently going to out-patient treatment or her appointments at Centerstone, other than being unable to secure gas and transportation. Ms. Blalock testified, however, that Mother's alleged transportation issues did not prevent her from visiting Father in jail during February of 2017.
With regard to Mother's assertion that DCS failed to assist her in securing stable housing, Ms. Blalock indicated that she had on several occasions provided Mother with referrals to various shelters and treatment programs. At least one of the shelters suggested by Ms. Blalock was a place to which the children could have accompanied Mother. Ms. Blalock testified that at the annual permanency hearing in March of 2017, Mother refused to go to any type of homeless shelter, even one that would allow her to bring her children.
Ultimately Ms. Blalock's testimony indicated that Mother failed to complete her in-patient or out-patient drug treatment, that Mother only made herself available for one drug screen in 2017, that Mother did not complete her mental health intake, that Mother did not complete her parenting classes, and that Mother still had not procured a permanent home despite the efforts of DCS to help her do so. Ms. Blalock also testified that the children had been in the same foster home since their placement in DCS custody, and were doing well in that placement.
Following trial, the juvenile court ruled that clear and convincing evidence supported all three grounds for termination. It also determined that termination of Mother's parental rights was in the best interests of her children. The order terminating Mother's parental rights was entered on August 21, 2017, and Mother filed a timely notice of appeal on September 14, 2017.
As this Court perceives them, the issues raised by Mother's appeal are:
The Tennessee Supreme Court has explained that:
Considering the fundamental nature of a parent's rights, and the serious consequences that stem from termination of those rights, a higher standard of proof is required in determining termination cases.
In termination cases, appellate courts review a trial court's factual findings de novo and accord these findings a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Lastly, in the event that the "resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide those issues."
As an initial matter, we note that Mother raises no argument on appeal with regard to grounds for termination. Under
Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), parental rights can be terminated when "[t]here has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan pursuant to title 37, chapter 2, part 4." Termination based upon this ground "requires more proof than that a parent has not complied with every jot and title of the permanency plan."
In the case-at-bar, the trial court expressly found that the goals of Mother's permanency plans were both reasonable and related to the issues prompting removal of her children. The trial court also found, by clear and convincing evidence, that Mother was substantially noncompliant with her permanency plan. With regard to Mother's inability to stay sober and maintain stable housing, the trial court noted the following:
The trial court also expounded upon Mother's transportation woes, which Mother maintained was the primary reason she often did not attend drug treatment and therapy sessions:
Ultimately, the trial court determined that Mother "had not tried hard enough to accomplish permanency goals," and that "she has no concrete plan for housing." Moreover, Mother "provided no proof that she had taken any steps toward her newly revealed plan for treatment."
In light of the foregoing, we cannot conclude that the trial court erred in finding clear and convincing evidence to support the ground of substantial noncompliance. It should be noted that the focus of this determination is not the parent's achievement of the plans desired outcomes, but rather the parent's efforts to abide by the plan.
From our review of the evidence, Mother failed to complete or largely attempt the following requirements of the plans: (1) maintain stable drug-free housing for any period of time; (2) maintain sobriety; (3) participate in the recommended after-care following her stints in drug treatment; (4) provide verification of attendance at out-patient treatment and NA/AA meetings; (5) submit to random drug screens; and (6) consistently address her ongoing mental health issues. Mother's deviations from the permanency plans cannot be construed as trivial, minor, or technical; rather, the deviations are significant in light of the serious circumstances surrounding the children's removal. As such, we conclude that clear and convincing evidence supports the trial court's judgment that Mother was in substantial noncompliance with her permanency plans. The termination of Mother's parental rights based upon this ground is affirmed.
We next consider whether DCS presented clear and convincing evidence that Mother failed to remedy the conditions that necessitated removal of her children. Pursuant to Tennessee Code Annotated section 36-1-113(g)(3), the court may terminate parental rights when a child "has been removed from the home or the physical or legal custody of a parent or guardian for a period of six (6) months by a court order entered at any stage of proceedings in which a petition has been filed in the juvenile court alleging that a child is a dependent and neglected child," and
Tenn. Code Ann. § 36-1-113(g)(3).
Failure to remedy the conditions which led to removal need not be willful.
As previously discussed, this ground for termination is only applicable where the child has been removed from the custody of the parent for six months following the entry of an order of dependency and neglect. Tenn. Code Ann. § 36-1-113(g)(3); see generally
The trial court concluded that DCS presented clear and convincing evidence demonstrating persistence of conditions. In particular, the trial court was concerned that Mother had no plan for housing,
The trial court's findings and the evidence in the record clearly and convincingly support this ground for termination. Mother failed a drug test in March of 2017, and then in June of 2017 Mother cancelled the hair follicle test scheduled by DCS. Moreover, Mother not only lacks a safe and drug-free home for the children to return to, she has no home whatsoever, for either herself or her children. Despite Mother's attendance at several rehabilitation programs, Mother does not appear to have succeeded in maintaining her sobriety for any significant length of time and appears to have a rather flippant attitude concerning the need to address these issues.
The final termination ground relied upon by the trial court is Tennessee Code Annotated section 36-1-113(g)(14):
This statutory ground is essentially two distinct elements that must each be proven by clear and convincing evidence:
With regard to substantial harm, this Court has explained that:
Returning to the case at hand, the trial court's findings on this ground are as follows:
We agree with the trial court's conclusion that sufficient evidence was presented as to this ground. Despite the array of resources offered by DCS, Mother has been unable to personally assume custody of the children. Mother was made aware of the steps she must take in order to regain custody of her children, yet she has demonstrated a patent unwillingness to take those steps. Particularly troubling was Mother's refusal to reside in a shelter in which she would have had an opportunity to parent her children. In rejecting DCS's offer to reside in this shelter, Mother exhibited a complete unwillingness to parent her children. Thus, the evidence presented shows that throughout the months that the children have been in DCS custody, Mother manifested neither the ability nor the willingness to assume custody of her children. See Tenn. Code Ann. § 36-1-113(g)(14).
Moreover, the hazards that prompted the removal of Mother's children are not minor, trivial, or insignificant; on the contrary, at the time of their removal by DCS the children had no permanent home. Mother was suicidal and using methamphetamine on a daily basis. Because Mother has demonstrated little, if any, willingness to remedy these circumstances, the children would be placed at a risk of substantial harm should they be returned to Mother's custody. This Court has come to the same conclusion in a similar case. See
Having determined that clear and convincing evidence supports the statutory grounds for termination of Mother's parental rights, we now examine whether termination is in the best interests of the children. "Upon establishment of a ground for termination, the interests of the child and parent diverge, and the court's focus shifts to consider the child's best interest."
Tennessee's termination statute lists the following factors to be used in the best interests analysis:
Tenn. Code Ann. § 36-1-113(i)(1)-(9).
The Tennessee Supreme Court has explained that:
In the present case, Mother argues that the trial court erred in concluding that termination was in the best interests of her children. Mother asserts that the trial court failed to undertake the best interests analysis from the perspective of the children, and that termination was not in the best interests of Briana and Dakoda because they are not currently in a pre-adoptive home. In applying the best interest factors, we note that several factors weigh in favor of termination, while others militate against termination.
We begin with the factors that weigh in favor of termination. First, Mother has failed to make an adjustment of the circumstances, conduct, and conditions as to make it safe for the children to be in Mother's home. Tenn. Code Ann. § 36-1-113(i)(1). The primary issue in this regard is that Mother has no permanent home and has been unable to maintain sobriety for any length of time. Mother had opportunities to attend both in and out-patient drug treatment, and has nonetheless failed to maintain sobriety. Mother tested positive for illegal drugs throughout the duration of the case, and cancelled the hair follicle test she was scheduled to take in June of 2017, just before trial. Although Mother maintained at trial that she was free from drugs, the night before trial, Mother informed her DCS social worker that she was once again attempting an in-patient rehabilitation program. As such, DCS presented sufficient evidence that Mother has not made a lasting adjustment of circumstances that would make returning the children to her care possible. Mother's substance abuse remains largely unaddressed, and renders Mother "consistently unable to care for the child[ren] in a safe and stable manner." Indeed, the fact that Mother lacks a home for the children to return to, safe or otherwise, heavily militates in favor of termination in this case. See Tenn. Code Ann. § 36-1-113(i)(7).
We are likewise unpersuaded by Mother's assertion that termination was not in the children's best interests because they are not in a pre-adoptive home and hypothetically could, at some point in the future, be safely returned to Mother's care. Mother supports this argument by noting that the trial court made no finding "that the children could never be returned to [Mother] under any circumstances, only that the trial court doubted that given six months or a year anything would be different." The trial court was not, however, required to make a finding that the children can never be safely returned to Mother. Rather, the trial court concluded that at this juncture, clear and convincing evidence reflects that Mother cannot provide safe and stable care for the children, largely due to her substance abuse and lack of a permanent home. Tenn. Code Ann. § 36-1-113(i)(7).
Simply put, the trial court is not required to delay the possibility that the children could be integrated into safe, stable, and permanent home on the off chance that Mother will finally make improvements in her life. Here, Mother had over eighteen months to make improvements in her life. While Mother indicated at trial that she plans to seek in-patient treatment for a third time, she offered no evidence of concrete steps she has taken towards this endeavor. At the time of trial, Mother remained a homeless, likely practicing addict, and there is no indication that she will be able to establish a safe, permanent, drug-free home at any point in the near future. Mother's statement at trial of her intentions therefore constitutes the very definition of efforts that are "too little, too late." See, e.g.,
We also reject Mother's argument that termination cannot be in a child's best interest where there is no evidence that they are in a pre-adoptive home. Indeed, Tennessee courts have previously held that a child's alleged unadoptability was insufficient to show that termination was not in the child's best interest. See
Moreover, there is ample evidence in the record that DCS put forth reasonable efforts to help Mother effect a lasting adjustment of circumstances. Tenn. Code Ann. § 36-1-113(i)(2). The children were in DCS custody for eighteen months by the time trial occurred, and in that time Mother was offered referrals for housing and drug treatment, including programs that would have allowed her to take her children with her. Mental health treatment was also available to Mother through Centerstone, although her attendance at those appointments was inconsistent. While Mother insisted that she wanted to attend appointments but could not due to a lack of transportation, Ms. Blalock testified that had she been asked to do so, she could have taken Mother to some of her appointments. Tenn. Code Ann. § 36-1-113(i)(2).
The record further suggests that Mother's mental and emotional condition would be detrimental to the children, and would prevent Mother from effectively providing safe and stable care for the children. Tenn. Code Ann § 36-1-113(i)(8). Mother testified that she suffers from depression, anxiety, and PTSD, and that these conditions drive her drug addiction. One of the initial reasons the children were removed from Mother's custody was Mother's suicide attempt in January of 2016. Despite the treatment options available to her through Centerstone, Mother has not taken full advantage of that treatment. While the court is sympathetic to these issues, the fact remains that Mother's mental health prevents her from providing safe and stable care for the children, particularly because she is unwilling to address her problems. Tenn. Code Ann. § 36-1-113(i)(8).
Mother's visitation with the children during the pendency of this case was also inconsistent. Tenn. Code Ann. § 36-1-113(i)(3). The trial court noted that between January of 2017 and the trial in July of 2017, Mother saw her children only eight times, four of those instances occurring in January. By the time the trial commenced, Mother had not seen the children since April. Mother also paid no child support during the pendency of this case, although she did testify that she purchased some gifts for the children. Tenn. Code Ann. § 36-1-113(i)(9).
Further, the evidence demonstrates that Mother has shown neglect towards both children and abuse towards Dakoda. Tenn. Code Ann § 36-1-113(i)(6). It is undisputed that when the children were removed, Mother was under the influence of methamphetamine and had been for nearly a month. The children were primarily being cared for by their aunt, who is also an addict and does not have custody of her own children. At the dependency and neglect hearing in March of 2016, Mother stipulated that she struck Dakoda
The two remaining statutory factors weigh more in favor of Mother. First, "whether a meaningful relationship has otherwise been established between the parent or guardian and the child." Tenn. Code Ann. § 36-1-113(i)(4). It is undisputed that Mother and children share a meaningful relationship. The trial court noted that "mother and children want to be together. The court is sympathetic to [Mother] and does not want to sever that bond." All parties agree that when Mother and the children saw one another at the permanency hearing in March of 2017, it was an "emotional" reunion.
We concede that the meaningful relationship militates against termination; Mother, however, relies too heavily upon this factor in making her argument. Mother essentially claims that the trial court failed to take into account the meaningful relationship between herself and the children, and thus could not have viewed best interests from the perspective of the children. According to Mother's brief,
In support of this argument, Mother cites
In
We reached the opposite conclusion in
Mother's reliance on these cases is unpersuasive. While we admit that the evidence concerning the current situation of the children presented by DCS was woefully deficient, we cannot adopt Mother's argument that the trial court entirely ignored the perspective of the children in rendering its decision. A meaningful relationship is certainly an important factor in the best interests analysis. See
The only statutory factor remaining is "[t]he effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological and medical condition." Tenn. Code Ann. § 36-1-113(i)(5). Here, there is simply not enough evidence in the record to determine how a change of caretaker and environment would affect the children. The only testimony as to the children's current condition came from Ms. Blalock, who testified that the children have been in the same foster home since being placed in DCS custody, and are doing well in that placement. Because DCS bears the burden to show evidence of this factor, we must conclude that this factor weighs against termination.
Considering the totality of the evidence both in favor and against termination of Mother's parental rights, we conclude that the termination of Mother's parental rights is in the children's best interest. Although the evidence is undisputed that Mother and the children have a strong bond and there is no evidence that the children would be harmed by a change in caretakers, the factors that weigh in favor of termination, particularly the complete lack of stability in Mother's life, have more weight in this particular case. We must note again, however, that we consider DCS's evidence regarding the children's current circumstances to be woefully deficient.
The judgment of the Juvenile Court of Hickman County is affirmed. Consequently, the termination of the parental rights of Tiffany H., to her children, Briana H. and Dakoda F., is affirmed. Costs of this appeal are taxed to Appellant Tiffany H., for which execution may issue if necessary.
