Assigned on Briefs February 2, 2017 Session
from the Juvenile Court for Shelby County No. Z2243 David S.
Walker, Special Judge
trial court terminated Mother's parental rights after
finding by clear and convincing evidence that (1) Mother
failed to substantially comply with the requirements of the
permanency plans, (2) Mother's mental incompetence
prevented her from properly caring for the Child, and (3) the
conditions which precipitated removal of the Child from
Mother's custody still persisted. The trial court then
found by clear and convincing evidence that it was in the
child's best interest to terminate Mother's parental
rights. Mother appealed. We affirm the trial court's
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Reginald E. Shelton, Memphis, Tennessee, for the appellant,
Herbert H. Slatery III., Attorney General and Reporter and
Brian A. Pierce, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
Franklin, Jr., Memphis, Tennessee, Guardian Ad Litem.
D. Bennett, J., delivered the opinion of the Court, in which
Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
matter, the Tennessee Department of Children's Services
("the Department" or "DCS") seeks to
terminate the parental rights of Brenda K.A.
("Mother") to Marterrio H. ("the
Child"). DCS became involved with the family on
August 14, 2012 when the Child and his older brother, Micheal
H., were removed from the home because Mother was
incarcerated for educational neglect due to her failure to
comply with the Compulsory School Attendance
The Child reportedly missed more than one hundred days of
school while in Mother's custody. Shortly after removal,
DCS placed the Child in the resource home of Yvonne T., and
he has remained there continuously since the removal. On
November 7, 2013, the juvenile court adjudicated the Child
dependent and neglected due to educational neglect. The court
found that Mother suffered from mental health issues that
prevented her from properly caring for the Child. The court
then ordered that the Child remain in the legal custody of
the removal, DCS developed five permanency plans for the
Child between 2012 and 2015. The initial permanency plan,
developed on August 28, 2012, and ratified on October 11,
2012, listed a dual goal of "Return to Parent" or
"Exit Custody with Relative." The second permanency
plan, developed on July 17, 2013, and ratified on August 8,
2013, included the same goals as the previous plan. In the
third permanency plan, developed on July 8, 2014, and
ratified on August 27, 2014, DCS amended the permanency plan
goals to "Return to Parent" and
"Adoption." The permanency plan developed on
November 10, 2014, and ratified on January 28, 2015, as well
as the final permanency plan developed on June 25, 2015, and
ratified on August 26, 2015, listed the same goals as the
third permanency plan. The permanency plans required Mother
to (1) complete a parenting assessment and follow all
recommendations; (2) complete a mental health assessment and
follow all recommendations; (3) pay her $1, 400 utility bill;
(4) complete a psychological evaluation and comply with
recommendations; (5) obtain stable housing; (6) comply with
case management recommendations; (7) pay child support; and
(8) visit the Child.
assigned Rita Dortch as the case manager in August 2012. At
trial, Ms. Dortch testified that the most important tasks in
the permanency plans were for Mother to provide a stable home
for the Child and pay her utility bill. According to Ms.
Dortch, DCS assisted Mother in complying with the permanency
plans' requirements by transporting her to appointments,
providing bus passes, and referring her for counseling and
case management services. DCS worked with Mother for three
years before filing the petition to terminate Mother's
parental rights. In the nearly four years between the
Child's removal and trial, Mother completed the
psychological evaluation, obtained employment two weeks
before trial, occasionally purchased food or clothing for the
Child, and regularly visited the Child.
Dortch testified that DCS arranged for two service providers
to provide Mother in-home therapy. The first of these service
providers was Camelot, with which Mother complied. As
additional assistance, DCS arranged for Health Connect
America to provide Mother in-home therapy. However, Mother
refused the Health Connect America services.
time of trial, Mother had failed to secure stable housing.
She resided at her mother's house with her mother and
brother. Ms. Dortch testified that this residence initially
failed to meet the requirements of the permanency plans
because Mother's daughter, who had been charged with
severe child abuse, resided in the home. Ms. Dortch
further testified that the home failed to meet the
requirements of the permanency plans because Mother's
brother resided in the home. Ms. Dortch stated that she felt
uncomfortable and "kind of afraid" during a visit
to the home because she observed the brother talking to
himself and laughing. According to Ms. Dortch, Mother
informed her that the brother had been diagnosed with
schizophrenia and "he doesn't take his
medicine." Ms. Dortch testified that she had worked for
DCS for thirty years, and she had never asked that a child be
returned to a parent who resided with someone diagnosed with
schizophrenia unless the person was taking his or her
medicine. However, Ms. Dortch admitted on cross-examination
that she had not conducted an independent investigation of
the brother's mental health.
31, 2014, LaShaunda P. Massey, Ph.D., performed a
psychological evaluation on Mother. At trial, Dr. Massey was
certified as an expert in clinical psychology. Dr. Massey
completed the Minnesota Multiphasic Personality Inventory
("MMPI") test as part of her evaluation of Mother.
Dr. Massey explained that the MMPI is "a personality
assessment that can give information about the person's
clinical disorders and other personality traits that are
relevant for some one and that can give indications of their
function over time." According to Dr. Massey, the test
[Mother] is somewhat narcissistic and self-indulgent. That
she can have a grandiose conception of her own capabilities.
There [were] indications that she can be aggressive at times
and has a tendency to blame others for situations and
problems not seeing her own role in situations. . . . The
testing also suggested that these problems and functioning
were pretty long standing.
Massey's opinion, the major concerns were Mother's
inability to admit her own role in problems and her tendency
to blame others for her problems. Dr. Massey diagnosed Mother
with Personality Disorder, not otherwise specified. Dr.
Massey concluded that this was a long-term diagnosis and it
would be difficult for Mother to effectuate change.
trial, Mother testified about events necessitating the
Child's removal from the home. When asked why the Child
missed more than one hundred days of school, Mother refused
to acknowledge her role in his truancy and blamed the school.
Mother testified as follows:
Q. So, whose fault was it?
A. It wasn't mines.
Q. It wasn't your fault?
A. Because if the parents allowed to have the children
grades, I was denied that. That is discrimination. It's
against the law.
Q. So, they never sent a report card to your house?
A. I'm talking about to - - they brought it home but it
wasn't the right - -they had - - their grades wasn't
right. I couldn't talk to no one at the school.
Q. So, you did get a report card, but the report card was
wrong. Is that what you are saying?
A. Everything was wrong at school.
also testified regarding her efforts to comply with the
requirements of the permanency plans. She stated that she had
not paid her $1, 400 utility bill because she had been
unemployed since 2014. However, she further testified that
she obtained employment two weeks prior to the trial and
planned to pay $200 every two weeks until the bill was paid
in full. Mother stated that she had been attending counseling
services provided by case management "for a couple of
weeks." When asked what case management diagnosed her
with, Mother responded, "Mental health."
Child's foster mother, Yvonne T. ("Foster
Mother"), testified to the progress the Child had made
while in her home. She stated that he was still two years
behind, but his grades were good. Foster Mother explained
that the Child had an Individualized Education Plan
("IEP") because he was "kind of behind other
kids." As a result, she meets with his teachers to
determine the Child's weaknesses and what work is
necessary "to get him where he need[s] to be."
Foster Mother further testified that she assisted the Child
with his homework. According to the foster mother, she and
her husband wished to adopt the Child if he becomes available
Child testified at trial that he wanted to be adopted by his
foster parents because it was "the best place." He
articulated that he understood adoption meant that his birth
parents would no longer be his parents and his foster parents
would become his parents. When asked how that made him feel,
the Child responded, "I'm good."
trial court heard the case on April 19, 2016 with David S.
Walker presiding as a special judge. On May 24, 2016, the
trial court entered a final order terminating Mother's
parental rights to the Child. The trial court found by clear
and convincing evidence that Mother failed to substantially
comply with the requirements of the permanency plans, Mother
was unable to adequately care for the Child due to her mental
incompetence, and that the conditions which precipitated
removal still persisted and other conditions existed which
would likely subject the child to further abuse and neglect.
The trial court also found by clear and convincing evidence
that it was in the best interest of the Child to terminate
Mother's parental rights. Mother appealed.
appeal, Mother presents three issues for our review. First,
Mother argues that the findings of Special Judge David S.
Walker should be set aside for lack of subject matter
jurisdiction because he was not appointed as a special judge
in accordance with statutory requirements and case law.
Second, Mother argues that the trial court erred by finding
by clear and convincing evidence that grounds for the
termination of Mother's parental rights existed. Finally,
Mother argues that the trial court erred by finding by clear
and convincing evidence that termination of Mother's
parental rights was in the best interest of the Child.
both the federal and state constitutions, a parent has a
fundamental right to the care, custody, and control of his or
her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250
(Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174-75 (Tenn. 1996). This right is not absolute,
however. If a compelling state interest exists, the state may
interfere with parental rights. Nash-Putnam, 921
S.W.2d at 174-75 (citing Nate v. Robertson, 871
S.W.2d 674, 678 (Tenn. 1994)). Our legislature has enumerated
the grounds upon which termination proceedings may be
brought. See Tenn. Code Ann. § 36-1-113(g). A
parent's rights may be terminated only where a statutory
ground exists. In re Matter of M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998).
terminating a parent's fundamental parental rights has
severe consequences, termination cases require a court to
apply a higher standard of proof. State Dep't of
Children's Servs. v. A.M.H., 198 S.W.3d 757, 761
(Tenn. Ct. App. 2006). First, a court must determine by clear
and convincing evidence that at least one of the statutory
grounds for termination exists. Tenn. Code Ann. §
36-1-113(c); State Dept. of Children's Servs. v.
Whaley, No. E2001-00765-COA-R3-CV, 2002 WL 1116430, at
*9 (Tenn. Ct. App. May 30, 2002). After a court makes this
determination, a court must find by clear and convincing
evidence that termination is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); Whaley,
2002 WL 1116430 at *9; see also In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002). "Clear and convincing
evidence 'establishes that the truth of the facts
asserted is highly probable, and eliminates any serious or
substantial doubt about the correctness of the conclusions
drawn from the evidence.'" In re Serenity
B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2
(Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B.,
140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations
of the heightened standard of proof required in termination
cases, we must adapt the customary standard of review
established by Tenn. R. App. P. 13(d). Id. In
accordance with Tenn. R. App. P. 13(d), we review the trial
court's findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise.
Id. Next, we must determine whether the facts
establish the ...