FILED SEP 10 2025
IN THE COURT OF APPEALS OF TENNESSEE Clerk ot the Appellate Courts REc'd By
AT KNOXVILLE
Assigned on Briefs July 1, 2025
IN RE ALEXANDER P.
Appeal from the Juvenile Court for Greene County No. 24-J-30684 Kenneth N. Bailey, Judge
No. E2024-01714-COA-R3-PT
In this case involving termination of the adoptive mother's and father's parental rights to
y
their child, the Greene County Juvenile Court ("trial court") determined that the statutor ground for termination—severe child abuse—had been proven by clear and convinc ing
e
evidence. The trial court further determined that clear and convincing evidenc demonstrated that termination of parental rights was in the child's best interest. The parents have appealed. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which JEFFREY USMAN and VALERIE L. SMITH, JJ., joined.
T. Hunter Shelton, Greeneville, Tennessee, for the appellant, Arlan P.
Catherine Fezell, Greeneville, Tennessee, for the appellant, Sheila P.
Assistant
Jonathan Skrmetti, Attorney General and Reporter, and Jason R. Trautwein, s.
Attorney General, for the appellee, Tennessee Department of Children's Service
OPINION
I. Factual and Procedural Background ) filed
On August 2, 2024, the Tennessee Department of Children's Services ("DCS"
the parental
a petition in the trial court ("the Termination Petition") seeking to terminate their minor
rights of the adoptive parents, Sheila P. ("Mother") and Arlan P. ("Father"), to filed the
child, Alexander P. (the "Child"). The Child was five years old when DCS rents,
Termination Petition. Mother and Father, who were the Child's biological grandpa
2
adopted him in 2023. The Child had lived with Mother and Father until June 20, 2024, when he was taken into DCS protective custody by order of the trial court following the arrest of both parents. On that date, Mother and Father had been arrested and charged with "maintaining a dwelling where drugs are used or sold, possession of firearms during the commission of a dangerous felony, and sale and delivery of schedule I drugsH" The
a
charges against both parents were subsequently dismissed in September 2024 due to the parent s'
typographical error in the search warrant that had been executed upon from
residence on June 19, 2024. The Child has remained in DCS custody since removal the parents' residence.
In the Termination Petition, DCS alleged that the parents had committed severe 13(g)(4)
child abuse against the Child, in violation of Tennessee Code Annotated §§ 36-1-1 of 8-10
and 37-1-102(b)(27), because the parents had been found "to be in possession ce
grains of methamphetarnine, baggies and digital scales," had been "using their residen sion of
for the purpose of selling illegal drugs," and had been found "to be in posses convincing
approximately 30 rifles and handguns." DCS also alleged that clear and l rights was in the
evidence demonstrated that termination of Mother's and Father's parenta Child's best interest.
ation
On October 17, 2024, the trial court conducted a hearing on the Termin , as did Cynthia
Petition. Both parents and their respective counsel attended the hearing The trial court heard
Tannert, the guardian ad litem who had been appointed for the Child.
Humphreys, DCS
testimony from Greene County Sheriff s Department Detective Chuck l Gibson.
case worker Caleb Rowland, and DCS child abuse investigator Crysta ating Mother's
On October 31, 2024, the trial court entered a written order termin and convincing
and Father's parental rights to the Child. The trial court found, by clear by Tennessee Code
evidence, that the Child had been a victim of severe abuse, as defined demonstrated that
Annotated 37-1-102(b)(27), and that clear and convincing evidence parents timely
termination of parental rights was in the Child's best interest. Both appealed.
II. Issues Presented
tive counsel.
The parents have each filed an appellate brief through his or her respec restated as follows:
Mother presents the following issue for our review, which we have
1. Whether the trial court erred by terminating Mother's parental rights when there was no direct evidence that Mother had severely abused l,
the Child and when all of the evidence admitted was circumstantia had been gained through an invalid search of the parents' home, and was insufficient to ineet the "clear and convincing" standard required for a finding of the ground of severe child abuse.
3
Father presents the following additional issues, which we have restated slightly:
2. Whether the trial court erred in finding, by clear and convincing evidence, that Father had committed severe child abuse.
3. Whether the trial court erred in finding, by clear and convincing evidence, that termination of Father's parental rights was in the Child's best interest.
III. Standard of Review
her
In a termination of parental rights case, this Court has a duty to determine "whet rted by a
the trial court's findings, made under a clear and convincing standard, are suppo . 2006). The
preponderance of the evidence." In re ER.R., III, 193 S.W.3d 528, 530 (Tenn accompanied by a
trial court's findings of fact are reviewed de novo upon the record, findings. See
presumption of correctness unless the evidence preponderates against those 523-2 4 (Tenn. 2016);
Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W3d 507, ed de novo with
In re ER.R., III, 193 S.W.3d at 530. Questions of law, however, are review 524 (citing In re
no presumption of correctness. See hz re Carrington H, 483 S.W.3d at inations regarding
ML.P, 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court's determ disturbed absent
witness credibility are entitled to great weight on appeal and shall not be tt, 92 S.W.3 d 835, 838 clear and convincing evidence to the contrary. See Jones v. Garre (Tenn. 2002).
custody of their
"Parents have a fundamental constitutional interest in the care and Keisling v. Keisling,
children under both the United States and Tennessee constitutions."
that "this right is not
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, convincing evidence
absolute and parental rights may be terminated if there is clear and on, 776 S.W.2d 96,
justifying such termination under the applicable statute." In re Drinn (1982)). As our
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 Supreme Court has explained:
right."
The parental rights at stake are "far more precious than any property nation of
Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termi role of a
parental rights has the legal effect of reducing the parent to the tions
complete stranger and of ["]severing forever all legal rights and obliga § 36-1-1 13(1)( 1);
of the parent or guardian of the child." Tenn. Code Ann.
terminating
see also Santosky, 455 U.S. at 759 (recognizing that a decision the interes ts and
parental rights is "final and irrevocable"). In light of lly
consequences at stake, parents are constitutionally entitled to "fundamenta at 754; see
fair procedures" in termination proceedings. Santosky, 455 U.S.
4
also Lassiter v. Dep't of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27 (1981) (discussing the due process right of parents to fundamentally fair procedures).
Among the constitutionally mandated "fundamentally fair procedures" is a heightened standard of proof—clear and convincing evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of unnecessary or erroneous governmental interference with fundamental parental rights. Id.; In re Bernard T, 319 S.W.3d 586, 596 (Tenn. 2010). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re g-
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-convincin evidence standard ensures that the facts are established as highly probab le,
d
rather than as simply more probable than not. In re Audrey S., 182 S.W.3 (Tenn .
838, 861 (Tenn. Ct. App. 2005); In re MA.R., 183 S.W.3d 652, 660 Ct. App. 2005).
* * *
dings,
In light of the heightened burden of proof in termination procee to whether
however, the reviewing court must make its own deterrnination as derance
the facts, either as found by the trial court or as supported by a prepon elements
of the evidence, amount to clear and convincing evidence of the at 596-
necessary to terminate parental rights. In re Bernard T, 319 S.W.3d 97.
g to terminate [parental]
In re Carrington H., 483 S.W.3d at 522-24. "[P]ersons seekin convincing evidence,"
rights must prove all the elements of their case by clear and In re Bernard T, 319
including statutory grounds and the best interest of the child. See S.W.3d 586, 596 (Tenn. 2010).
IV. Statutory Ground of Severe Child Abuse requirements for
Tennessee Code Annotated § 36-1-113' delineates the statutory termination of parental rights, providing in relevant part:
s to any section within Tennessee Code ' Unless otherwise noted, throughout this Opinion, all citation to the version that was effective on the Annotated §§ 36-1-113 and 36-1-102 shall be made in reference of the statute. See, e.g., In re Zakary date the Termination Petition was filed and not to any other version n.6 (Tenn. Ct. App. Aug. 5, 2023). In some O., No. E2022-01062-COA-R3-PT, 2023 WL 5215385, at *4, that time the Termination Petition was filed instances, such as this one, the subsection that was in effect at has not changed and therefore remains current.
5
(a) The chancery and circuit courts shall have concurrent jurisdiction with the juvenile court to terminate parental or guardianship rights to a child in a separate proceeding, or as a part of the adoption proceeding 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
(2) That termination of the parent's or guardian's rights is in the best interest of the child.
convincingly
Here, the trial court concluded that the evidence clearly and abuse against the Child
demonstrated that Mother and Father had committed severe child firearms in the parents'
by exposing the Child to methainphetamine, heroin, and loaded that this ground has been residence. Tennessee Code Annotated § 36-1-113(g)(4) provides proven when:
child abuse,
The parent or guardian has been found to have comniitted severe found by the
as defined in § 37-1-102, under any prior order of a court or is petition for
court hearing the petition to terminate parental rights or the .]
adoption to have committed severe child abuse against any child[ 1, 2024, to current) defines As relevant to this cause of action, § 37-1-102(b)(27) (West July "severe child abuse" as:
(A) (i) Exposure of a child to serious bodily injury or death, or the risk ,
of serious bodily injury or death, caused by brutality, abuse neglect, or use of force; and "
(ii) As used in this subdivision (b)(27)(A), "serious bodily injury has the same meaning as "serious bodily injury to the child" given in § 39-15-402[1
Concerning this ground, the trial court determined:
6
There was only one ground pled which was severe child abuse. The Respondents chose not to testify so the Court must rely on the testimony of the witnesses presented by [DCS] in this case.
The Court notes that pursuant to In re A.L.H. et al., No. M2016-
01574-COA-R3-JV[, 2017 WL 3822901] (Tenn. [Ct.] App. 2017), the facts in that case show that the mother did not test positive for any substance; however, two of her three children did and the Court of Appeals states that it is the obligation of the parents to protect the child from abuse and exposure of the child to methamphetamine is a form of severe child abuse.
The Court finds that the search warrant that was found to be insufficient by the District Attorney does not affect the civil case. The pictures presented in this case speak volumes. A photo is worth a lot in this case and there are multiple photographs of multiple firearms including an ARI5 sitting in a tennis shoe and laying against a guitar. There were rifles standing against a door. There were photographs of drugs laying in the open and foil with drug residue laying in the open. Detective Humphreys testified that based upon his experience these substances were very likely heroin and On
methamphetamine. There was methamphetamine laying on a subwoofer.
s
the clothes dryer there was a digital scale and baking soda. These picture show drug paraphernalia laying throughout the residence. Neither parent tested
took the stand to dispute that these items were not theirs. The child cocain e and based
positive for a significant arnount of metharnphetamine and e on a
upon the statute and the case law the Court can find that testing positiv hair follicle drug screen is sufficient for a finding of severe child abuse.m
T.C.A. § 37-1-102(b)(27) defines "severe child abuse" to include the following:
(A)(i) The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is likely to cause serious bodily injury or death;
(ii) "Serious bodily injury" shall have the same meaning given in § 39-15-402(d).
2 The hair follicle drug screen was adminis tered to the Child on July 15, 2024, twenty-five days after he was removed into DCS custody.
7
The Court in the In re A.L.H. et al., case indicates clearly that the severe abuse comes from the child being exposed to substances including methamphetamine due to the impact it has on the development of a child.
The Court finds that these parents must have been aware of the methamphetamine and guns laying around the home and they did not dispute any of the testimony presented. Therefore, the Court finds that the child was a victim of severe abuse by clear and convincing evidence and turns its attention to the best interest factors having found that a ground for termination exists.
the
Mother argues that the trial court erred by finding that Mother had severely abused illicit drugs in the parents '
Child because, according to Mother, the evidence that there were and not
home was "circumstantial, supplied from an invalid search of the [parents'] home, cing[1" In
enough to meet the heightened statutorily required standard of clear and convin ces
support of her argument, Mother asserts that it is "unclear from the record if the substan e the
found during [the June 19, 2024] search were confirmed to be illicit or illegal becaus addition,
termination hearing was conducted before the lab results had been returned." In the home
Mother contends that there was no direct evidence that the firearms discovered in minor child before the "were stored improperly" or that they were "within the reach of the search began."
l rights
Concerning circumstantial evidence of severe child abuse in a parenta termination case, our Supreme Court has stated:
We have rejected any suggestion that circumstantial evidence is inferior to or less probative than direct evidence. See State v. Dorantes, 331 S.W.3d 370,
l
381 (Tenn. 2011) (citing 2A Charles Alan Wright & Peter J. Henning, Federa Practke & Procedure § 411 (2009)); cf 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 42.03(a) (2022) ("Do not assume that direct evidence is always
e
better than circumstantial evidence. According to our laws, direct evidenc type of
is not necessarily better than circumstantial evidence. Either or
evidence can prove a fact if it is convincing enough."). Circumstantial not, evidence is evidence, and we consider it all.
nt that the trial
In re Markus E., 671 S.W.3d 437, 468 (Tenn. 2023). Thus, Mother's argume the ground of
court should not have considered circumstantial evidence in determining severe child abuse in this case is unavailing.
stantial
Moreover, the trial court reviewed evidence that was both direct and circum evidence as
to reach its conclusion. This Court has defined direct and circumstantial follows:
8
Direct evidence is defined by Tennessee Courts as "evidence that `proves a fact, or group of facts, without an inference, and which in itself, if true, conclusively establishes that fact.'" Brenner v. Textron Aerostructures, 874 S.W.2d 579, 585 (Tenn. App. 1993) (quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 445 (Tenn. 1992)). Circumstantial evidence, on the other hand, is evidence which 'proves a fact from which an inference of the existence of another fact may be drawn.'" Id. (quoting Otis, 850 S.W.2d at 445).
57,
Paschall v. Henry Cnty. Bd. of Educ., No. W1999-0070-COA-R3-CV, 2000 WL 337745 a person
at *4 (Tenn. Ct. App. June 2, 2000). "Direct evidence may consist of testimony of a fact sought to be
who has perceived by the means of his or her sense the existence of the trial
proved or disproved." State v. Keen, 31 S.W.3d 196, 218 (Tenn. 2000) (quoting State v.
court's jury instructions concerning the general nature of direct evidence); see App. May
Dotson, No. E1999-00640-CCA-R3-CD, 2000 WL 528404, at *12 (Tenn. Crirn.
ning the
3, 2000) (quoting with approval the trial court's jury instructions concer witness
relationship between direct and circumstantial evidence: "For example, if a that it was
testified that the witness [s]aw it raining outside, that would be direct evidence g a raincoat
raining. If a witness testified that the witness saw someone enter a room wearin circumstantial
covered with drops of water and carrying a wet umbrella, that would be evidence from which you could conclude that it was raining.").
taken by
Here, the trial court reviewed photographs of Mother's and Father's home hreys' eyewit ness
Detective Hurnphreys on June 19, 2024, in tandem with Detective Hump ive Humphreys'
testimony concerning their contents. The photographs and Detect 's residence.
testimony constituted direct evidence of the contents of Mother's and Father ive Humphreys also
See Keen, 31 S.W.3d at 218; Dotson, 2000 WL 528404, at *12. Detect observed when he
identified several firearms in the photographs that he had personally and within the
searched the residence, some of which he verified as having been loaded as proof a detailed
reach of the Child on the date of the search. In addition, DCS offered ce, which also
catalogue of the firearms that Detective Humphreys had found in the residen on the date of the
constituted direct evidence that loaded firearms were present in the home Father took the
search. See id. Significantly, as the trial court noted, neither Mother nor ernalia in their
stand to dispute the presence of loaded firearms, drugs, and drug paraph home.
ces that
During his testimony, Detective Humphreys acknowledged that the substan the results had not
he had identified as illicit drugs had been "sent off to the lab" but that this, it is "unclear
yet been returned to him. As stated above, Mother argues that because of were confirmed
from the record if the substances found during [the June 19, 2024] search that he believed the
to be illicit or illegal[.]" However, Detective Humphreys testified and heroin based
substances he found in the parents' residence to be metharnphetamine the time Detective
upon his "experience" in the field. The record demonstrates that at
9
Humphreys executed the search warrant on Mother's and Father's residence, he had been employed with the Greene County Sheriff's Department for over twenty years, during which he had received annual training on drug identification and had personally conducted many similar searches.
The trial court also reviewed the results of a "hair follicle" drug test that had been administered to the Child on July 15, 2024. The Child had tested positive for methamphetamine and cocaine on that date.3 Although the Child was in DCS custody when
l
the test was administered, the positive drug screen results constituted circumstantia 468,
evidence which the trial court properly considered, see In re Markus E., 671 S.W.3d at d to
and from which the trial court drew an inference that the Child had been expose 57,
methamphetamine while in Mother's and Father's care, see Paschall, 2000 WL 337745 and the
at *4. The photographs, Detective Humphreys' testimony, the firearm catalogue, circum stantial
Child's positive drug screen results together constituted both direct and while in the
evidence that the Child had been exposed to illicit drugs and multiple firearms home with the parents.
the method
As this Court has determined, a finding of severe child abuse turns not on drugs. " See In re
or level of exposure, but on the "fact that the [Child] was exposed to Ct. App. Aug. 31,
A.L.H., No. M2016-01574-COA-R3-JV, 2017 WL 3822901, at *4 (Tenn.
in Mother's and
2017). Detective Humphreys testified that he observed methamphetamine In addition, there
Father's residence and that the Child had access to the drugs in the home.
ny, and the Child
was photographic evidence corroborating Detective Humphreys' testimo d from the parents'
tested positive for metharnphetamine shortly after he was remove for Mother to have
custody. Thus, contrary to Mother's assertions, it was not necessary Child to severe
tested positive for drugs to determine that the parents had subjected the , not the method
child abuse. See id. ("lt is the exposure of the child to harm that matters or level of exposure.").
ied from an
Mother next asserts that because the evidence of drugs was "suppl by relying on that
invalid search of [Mother's and Father's] homc," the trial court erred child abuse against
evidence to determine that Mother and Father had committed severe the search warrant
the Child. Mother refers here to Detective Humphreys' testimony that aphical errors that
he executed on June 18, 2024, at the parents' residence contained typogr r and Father. DCS
resulted in disrnissal of the related drug charges against both Mothe this argument and
counters that because Mother cites "no legal authority" in support of
follicle test were not sufficient for a finding of severe child abuse 3 Mother argues that the results of the hair while he was "in an abusive foster because the test was taken while the Child was in DCS custody and days after the Child had been removed home." We acknowledge that the test was administered twenty-five for methamphetamines is consistent into DCS custody. However, we note that the Child's testing positive testimony concerning the presence of with the photographic evidence and Detective Humphreys'
l.
rnethamphetamine in Mother's and Father's home on the date of remova
10
provides "no analysis, leaving it to DCS and the Court to make the argument for her," she has waived the issue pursuant to Tennessee Rule of Appellate Procedure 27(a)(7).
Tennessee Rule of Appellate Procedure 27(a) mandates that an appellant's brief must include lain argument . . . setting forth . . . the contentions of the appellant with respect to the issues presented, and the reasons therefor . . . with citations to the authorities and appropriate references to the record . . . relied on[.]" Tenn. R. App. P. 27(a)(7)(A)
by
(emphasis added). By failing to develop her argument with an analysis supported with Rule 27 regardi ng citations to legal authority and the record, Mother has not complied her search warrant argument, and the argument is therefore waived. See Hodge v. Craig, when
382 S.W.3d 325, 335 (Tenn. 2012) (explaining that an issue may be deemed waived ng
it has been expressly raised as an issue, but the brief fails to include an argument satisfyi the requirements of Rule 27(a)(7)).
Even had Mother not waived her argument concerning the faulty search warrant, does not
this Court has long adhered to the principle that the "exclusionary rule generally penalty on
apply to a civil proceeding" wherein the government is not seeking to exact a App. 1999).
or punish a person. City of Jackson v. Butler, 10 S.W.3d 250, 253 (Tenn. Ct.
t that was found to be
Thus, the trial court did not err when it found that "the search warran Mother's
insufficient by the District Attorney does not affect the civil case." Accordingly, argument on this point is without merit.
home,"
In determining that "there was heroin and methamphetamine found in the ny and evidence
the trial court expressly stated that in addition to considering the testimo choosing not to
presented, the court was "drawing a negative inference due to the parents that this was
testify to dispute any of the evidence presented in this case." Father argues e inference from a
error, asserting that a trial court only has discretion to draw a negativ Amendment of the
party's decision not to testify "once there is an invocation of the Fifth in support of this
United States Constitution." Father does not offer any legal authority argument.
perrnitted
Although Father is correct that "in parental termination cases, the court is Fifth Amend ment
to draw a negative inference from a witness's invocation of his or her 1951880, at *5
right.," see In re Jeremiah S., No. W2019-00610-COA-R3-PT, 2020 WL ty that supports
(Tenn. Ct. App. Apr. 23, 2020) (citation omitted), we find no authori Fifth Amendment
Father's additional supposition that a party must expressly invoke the testify. Rather,
before a court may draw a negative inference from lhat party's refusal to utional infirmity
in a termination proceeding, this Court has stated that "there is no constit not testifying
in the ability of the trial court to draw a negative inference from the _parent objection in a
or to consider evidence obtained over the parent's Fifth Amendment E., No. M2009-
proceeding to terminate that parent's parental rights." Li re Nickholas (following the
01888-COA-R3-PT, 2010 WL 454809, at *6 (Tenn. Ct. App. Feb. 9, 2010)
No. E2006- 01614-
"result and reasoning" in State Dep't of Children's Servs. v. F.R.G.,
11
COA-R3-PT, 2007 WL 494996, at * 10-12 (Tenn. Ct. App. Feb.16, 2007)) (emphasis added). Thus, we find no error in the trial court's decision to draw a negative inference from the parents' decision to not testify. Even had the trial court erred by drawing such negative inference, we would deem such error to be harmless because DCS presented clear and convincing evidence that Father and Mother had exposed the Child to methamphetamine and loaded, improperly stored firearms, and thus had committed severe child abuse against the Child.
In the absence of testimony from either Mother or Father, the trial court relied upon testimony from Detective Humphreys, photographs taken during the search of the residence, and the Child's positive drug test results to conclude that the Child had been exposed to illicit drugs and loaded firearms and had therefore been subjected to severe child abuse as contemplated by § 37-1-102(b)(27)(A). As stated above, Detective Humphreys testified that when he entered the residence, he had "found methamphetamine" and what he "believed to be heroin residue in aluminum foil." Detective Humphreys further stated that he "also found sorne pills and 20 to 30 firearms just standing in corners ve
and laying on beds." The photographic evidence also included images of what Detecti "; a
Humphreys described as a "set of digital scales open, sitting on the [clothes] washer freezer, along with
substance that "appear[ed] to be rnethampheta mine laying on top of the out in
a torch and some knives, and a few baggies"; "what appears to be a meth rock just with
plain view, a foot off the ground"; "a little short bump stock AR rifle that was loaded"
have,
its barrel "in a shoe sitting on the ground"; a.nd "aluminum foil" that "appeared to that
what looked to be heroin residue" in the "living roorn." Detective Humphreys testified the substan ces he
he found the parents and the Child at the residence on that day, such that identified as illicit drugs and the loaded firearms were within reach of the Child.
Upon careful review, we find that the trial court did not err in finding that Mother "knowing
and Father had committed severe child abuse against the Child through the that
exposure of a child to or the knowing failure to protect a child from abuse or neglect to
is likely to cause serious bodily injury or death," namely, exposure of the Child See Tenn.
methamphetarnine, heroin, and at least one loaded firearm in the Child's home.
nation that
Code Ann. § 37-1-102(b)(27). Accordingly, we affirm the trial court's determi this ground had been established by clear and convincing evidence.
V. Best Interest of the Child one
When, as here, a parent has been deemed unfit by establishment of at least child diverge,
statutoiy ground for termination of parental rights, the interests of parent and 838,
and the focus shifts to what is in the child's best interest. In re Audrey S., 182 S.W.3d ("The best
877 (Tenn. Ct. App. 2005); see also In re Carrington H., 483 S.W.3d at 523 that there is clear
interests analysis is separate from and subsequent to the determination 303 S.W.3d
and convincing evidence of grounds for termination." (quoting In re Angela E., of factors the
240, (Tenn. 2010))). Tennessee Code Annotated § 36-1-113(i) provides a list
12
trial court is to consider when determining if termination of parental rights is in a 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. See In re Carrington H., 483 S.W.3d at 523; 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."). Furthermore, the best interest of a child rnust be determined from the child's perspective and not the parent's. nite v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
Tennessee Code Annotated § 36-1-113(i)(1) (West July 1, 2021, to current) lists the following factors for consideration:
(A) The effect a termination of parental rights will have on the child's critical need for stability and continuity of placement throughout the child's minority;
(B) The effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological, and rnedical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting the child's basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental attachment, and if not, whether there is a reasonable expectation that the parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact with the child and used the visitation or other contact to cultivate a positive relationship with the child;
(F) Whether the child is fearful of living in the parent's home;
(G) Whether the parent, parent's home, or others in the parent's household trigger or exacerbate the child's expei•ience of trauma or posttraumatic symptoms;
(H) Whether the child has created a healthy parental attachment with another person or persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons other than parents and caregivers, including biological or on
foster siblings, and the likely impact of various available outcomes
13
these relationships and the child's access to information about the child's heritage;
(J) Whether the parent has demonstrated such a lasting adjustment of circumstances, conduct, or conditions to make it safe and beneficial for the child to be in the home of the parent, including consideration of whether there is criminal activity in the home or by the parent, or the use of alcohol, controlled substances, or controlled substance analogues which may render the parent unable to consistently care for the child in a safe and stable manner;
(K) Whether the parent has taken advantage of available programs, services, or community resources to assist in making a lasting adjustment of circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent in making a lasting adjustment in cases where the child is in the custody of the department;
(M) Whether the parent has demonstrated a sense of urgency in establishing paternity of the child, seeking custody of the child, or addressing the circumstance, conduct, or conditions that made an award of custody unsafe and not in the child's best interest;
(N) Whether the parent, or other person residing with or frequenting the horne of the parent, has shown brutality or physical, sexual, emotional, or psychological abuse or neglect toward the child or any other child or adult;
(0) Whether the parent has ever provided safe and stable care for the child or any other child;
(P) Whether the parent has demonstrated an understanding of the basic and specific needs required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to creating and maintaining a home that meets the child's basic and specific needs and in which the child can thrive;
(R) Whether the physical environment of the parent's home is healthy and safe for the child;
14
(S) Whether the parent has consistently provided more than token financial support for the child; and
(T) Whether the mental or emotional fitness of the parent would be detrimental to the child or prevent the parent from consistently and effectively providing safe and stable care and supervision of the child.
ision (i)(1),
The statute further provides: "When considering the factors set forth in subdiv ned to be
the prompt and permanent placement of the child in a safe environment is presur in the child's best interest." Tenn. Code Ann. § 36-1-113(g)(i)(2).
As our Supreme Court has instructed regarding the best interest analysis:
the
These statutory factors are illustrative, not exclusive, and any party to nt to
termination proceeding is free to offer proof of any other factoi• releva In
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing ered
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts consid ndera nce of the
in the best interests analysis must be proven by "a prepo 455
evidence, not by clear and convincing evidence." In re Kaliyah S., d at 861).
S.W.3d [533,] 555 [(Tenn. 2015)] (citing In re Audrey S., 182 S.W.3 then
"After making the underlying factual findings, the trial court should er they
consider the combined weight of those facts to determine wheth in the child's
amount to clear and convincing evidence that termination is must
best interest[s]." Id. When considering these statutory factors, courts the child' s,
remember that "[t]he child's best interests [are] viewed from d at 878.
rather than the parent's, perspective." In re Audrey S., 182 S.W.3 on theme"
Indeed, "[a] focus on the perspective of the child is the comm sts of the
evident in all of the statutory factors. Id. "[W]hen the best intere always be
child and those of the adults are in conflict, such conflict shall . . ." Tenn.
resolved to favor the rights and the best interests of the child. Code Ann. § 36-1-101(d) (2017).
"rote
Ascertaining a child's best interests involves more than a d at 878.
examination" of the statutory factors. In re Audrey S., 182 S.W.3 g the numb er of
And the best interests analysis consists of more than tallyin White v.
statutory factors weighing in favor of or against termination.
the facts and
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, relevant each
circumstances of each unique case dictate how weighty and 182 S.W.3d
statutory factor is in the context of the case. See In re Audrey S., n a factually
at 878. Simply put, the best interests analysis is and must rernai t receives
intensive undertaking, so as to ensure that every paren rights are
individualized consideration before fundamental parental ng upon the
terminated. In re CalTington H., 483 S.W.3d at 523. "[D]ependi
15
circumstances of a particular child and a particular parent, the consideration of one factor may very well dictate the outcome of the analysis." In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194). But this does not mean that a court is relieved of the obligation of considering all the factors and all the proof. Even if the circumstances of a particular case ultimately result in the court ascribing more weight—even outcome determinative weight—to a particular statutory factor, the court must consider all of the statutory factors, as well as any other relevant proof any party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
st factors in
ln its final judgment, the trial court weighed several of the best intere thorough review of
favor of terminating Mother's and Father's parental rights. Upon our regarding the best
the evidence presented, we determine that the trial court's findings interest factors are supported by a preponderance of the evidence.
ined that
The trial court considered each factor individually and initially determ were not applicable
factors (A), (B), (D), (E), (F), (G), (H), (I), (K), (L), (M), (S), and (T)
Concerning factors
to this case and therefore did not weigh in favor or against teimination.
presented related to
(D), (E), (F), (G), (I), (K), (M), (S), and (T) there was no evidence s determination that
these factors during trial; therefore, we will not disturb the trial court'
ation. However, we
these factors are not applicable and do not weigh for or against termin (H), and (L) do not apply disagree with the trial court's determination that factors (A), (B), to this case, and we will address each in turn.
will have on the
Concerning factor (A)—the effect a termination of parental rights and factor (B)—the effect child's critical need for stability and continuity of placement—
on the child's emotional, a change of caretakers and physical environrnent is likely to have ed that a termination of
psychological, and inedical condition—the evidence demonstrat 's critical need for stability parental rights would likely have a positive effect on the Child above, DCS presented
and his emotional and psychological well-being. As discussed drugs, loaded firearrns,
evidence that Mother's and Father's home was filled with illicit iting a physical environment and extreme clutter and disarray at the time of removal, exhib the DCS caseworker, also
that was unstable and unsafe for the Child. Mr. Rowland, y, he had not yet been potty testified that when the Child was removed into DCS custod tor that the Child suffered trained although he was nearly five years old. This is an indica ding to Mr. Rowland,
developmental delay while in the care of Mother and Father. Accor s after he had been taken the Child had subsequently become potty trained in the few month delays in other areas, Mr.
into DCS custody. Concerning the Child's developmental into protective custody, he Rowland explained that at the tiine the Child was removed had been specifically
"struggle[d] with social interaction with any age level" and (B) pertain to Father
"physically combative" at doctor visits. As factors (A) and
16
y,
specifically, Father had been incarcerated since the Child was removed into DCS custod such that placing the Child with Father was not possible.
the
On the other hand, testimony during trial revealed that in the four months that first foster
Child had been in DCS custody, DCS had already removed the Child from his had "phys ically
horne placement. Mr. Rowland testified that the first foster parents d to remove
disciplined" the Child by "spanking him on the bottom" such that DCS decide d by the
the Child frorn that home "immediately." The instability and alleged abuse suffere Child into
Child at the first foster home and the fact that DCS had already had to place the weigh against
a second foster home only a month after removal could, in some instances, termination relative to factors (A) and (B).
testified
However, despite the difficulty with the first foster family, Mr. Rowland rnonths leading
that the Child had been "doing great" in his second foster placement in the trained, had been
up to the trial. Mr. Rowland testified that the Child had become potty improved in his
enrolled "in a Pre-K program where he [was] doing excellent," and had been at the tirne of
behavior such that he was no longer "physically cornbative" as he had to these factors, we
removal. After carefully considering the evidence as it pertains termination as to both
determine that factors (A) and (B) do apply and weigh in favor of parents.
al attachmcnt
Regarding factor (H)—whether the child has created a healthy parent Rowland's testimony
with another person or persons in the absence of the parent—Mr.
's relationship with the
concerning the Child's second foster placement was that the Child vacation with the foster
foster family was positive and that he had been "able to go on asked about the adoptive
parents." Mr. Rowland found it significant that the Child had "not this evidence indicates
parents since entering custody." Upon review, we determine that healthy parental attachments that the Child was beginning to bond with and was creating ation for both parents.
with his second foster family. Factor (H) weighs in favor of termin to assist the
Concerning Factor (L)—whether DCS has made reasonable efforts in the protective custody parent in making a lasting adjustment in cases where the child is with respect to Father
of DCS—we agree with the trial court that this factor does not apply of removal and the
because he had been incarcerated continuously between the time that factor (L) weighs
termination trial. However, upon careful review, we determine demonstrated that Mother
against termination as to Mother. The evidence presented at trial parenting assessments but was compliant with DCS in completing the requisite mental and to determine whether
that DCS did not wait to receive the results of those assessments petition to terminate her Mother could benefit from DCS assistance before filing its did not visit Mother until parental rights. Furthermore, Mr. Rowland testified that he been removed into DCS
September 14, 2024, nearly three months after the Child had nd testified that he had
custody. When he did visit with Mother in her horne, Mr. Rowla he had informed Mother
observed that the house remained "in disarray, chittered" and that
17
form of
about—and she was amenable to—assistance DCS could provide in the not follow
"homemaker services." Despite this, Mr. Rowland acknowledged that he did r services.
up with Mother to have her sign a release to receive a referral for homemake Factor (L) weighs against termination of Mother's parental rights.
ed
The trial court determined that factor (C)—whether the parent has demonstrat , housing, and
continuity and stability in meeting the child's basic material, educational the testimony
safety needs—weighed in favor of termination as to both parents based upon We agree with the
and exhibits presented concerning the ground of severe child abuse.
the trial court that
trial court concerning factor (C). For the same reasons, we agree with stated, the evidence
factors (J) and (P) also weigh in favor of termination. As the trial court criminal activity and
demonstrated that Mother and Father had "continued to engage in not being met in the
alcohol and substance abuse" and that the Child's "basic needs were home[.]"
n residing with or
With respect to factor (N)—whether the parent, or other perso cal, sexual, emotional, or frequenting the home of the parent, has shown brutality or physi determined this factor
psychological abuse or neglect toward the child—the trial court iple firearms" that "were weighed in favor of termination, noting that the parents kept "mult stated that these firearms within reach of the [then] four-year-old [C]hild." The trial court Humphreys' testimony that were "laying out throughout the home" and noted Detective parent has ever provided safe "several were loaded." Respecting factor (0)—whether the similarly found that this and stable care for the child or any other child—the trial court se "the presence of multiple factor weighed in favor of termination as to both parents becau that while "having and owning firearms made the home unsafe." The trial court clarified a risk of harm to a child,"
firearms is not against the law and does not automatically pose reach" of the Child. The
the firearms in this instance "were not put away and were within ms," some loaded and within trial court determined that the presence of "multiple firear rick R., No. E2017-01504-
reach of the Child, constituted a safety hazard. Cf. In re Rode 11, 2018) (describing the COA-R3-PT, 2018 WL 1748000, at *3 (Tenn. Ct. App. Apr.
er's home, the presence of, requirements of a permanency plan that stated that in the moth to be "safety concerns" and inter cdia, unsecured fireanns and "clutter" were deemed in favor of the trial court's "barriers" to reunification). The evidence preponderates findings relative to factors (N) and (0).
t has demonstrated an
The trial court determined that factor (P)—whether the paren child to thrive—and factor understanding of the basic and specific needs required for the commitment to creating and (Q)—whether the parent has demonstrated the ability and needs and in which the child maintaining a home that meets the child's basic and specific both parents. For the reasons can thrive—applied and weighed in favor of termination as to and several of the other factors, stated above concerning the ground of severe child abuse d and weighed in favor of we agree. The trial court found that factor (R) also applie firearms and drugs" within tennination as to both parents because "there were multiple
18
finding
reach of the Child. The evidence preponderates in favor of the trial court's concerning factor (R).
and
For the above-stated reasons, we affirm the trial court's conclusion that clear r's parental
convincing evidence demonstrated that termination of Mother's and Fathe rights was in the best interest of the Child.
VI. Conclusion
ts. This
For the foregoing reasons, we affirm the trial court's judgment in all respec ement of the trial
case is remanded to the trial court, pursuant to applicable law, for enforc rights to the Child and
court's judgment terminating Mother's and Father's parental one-half to appellant,
collection of costs assessed below. Costs on appeal are assessed Arlan P., and one-half to the appellant, Sheila P.
s/Thomas R. Frierson, II
THOMAS R. FRIERSON, II, JUDGE