Session January 24, 2017
from the Juvenile Court for Knox County No. 148322 Timothy E.
termination of parental rights case, the Department of
Children's Services filed a petition to terminate the
parental rights of T.W.B. (mother) with respect to her child,
P.T.F. The trial court found clear and convincing
evidence of two grounds supporting termination. By the same
quantum of proof, the trial court held that termination of
mother's parental rights is in the best interest of the
child. Mother appeals. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded.
Guindi, Knoxville, Tennessee, for the appellant, T.W.B.
Herbert H. Slatery III, Attorney General and Reporter, and
Brian A. Pierce, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which John W. McClarty and Thomas R. Frierson, II,
CHARLES D. SUSANO, JR., JUDGE
mother's pregnancy, mother failed three drug screens,
testing positive for marijuana on two occasions and twice for
opiates. Mother admitted at trial that she used oxycodone
without a prescription several times a week during the first
three months of her pregnancy. On July 3, 2014, DCS sent an
investigator for the Office of Child Safety to the hospital
to observe the child and interview mother. Following the
investigation, DCS had concerns about the safety of the
child. It determined that she needed to be placed with a
care-provider. On July 4, 2014, the trial court entered a
protective custody order finding the child to be dependent
and neglected. The court awarded temporary custody to DCS.
The child has remained in foster care since that date.
October 15, 2014, the trial court entered a child support
order requiring mother to pay child support in the amount of
$100 per month. The court also found that mother owed a child
support arrearage of $225, which included retroactive support
to July 3, 2014. The court ordered mother to pay $10 per
month toward the arrearage for a total monthly child support
obligation of $110.
October 13, 2015, DCS filed a petition to terminate
mother's parental rights. In the petition, DCS alleged
the following grounds for termination: (1) severe child abuse
pursuant to Tenn. Code Ann. §§ 36-1-113(g)(4) and
37-1-102(b)(22); (2) abandonment by willful failure to
support pursuant to Tenn. Code Ann. §§
36-1-113(g)(1) and 36-1-102(1)(A)(i); (3) abandonment by
failure to provide a suitable home pursuant to Tenn. Code
Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (4)
persistence of conditions pursuant to Tenn. Code Ann.
§§ 36-1-113(g)(3); and (5) substantial
noncompliance with a permanency plan pursuant to Tenn. Code
Ann. § 36-1-113(g)(2). DCS also asserted that
termination of mother's parental rights is in the best
interest of the child.
August 31, 2016, the trial court entered its final judgment
terminating mother's parental rights, finding that there
was clear and convincing evidence of severe child abuse and
abandonment by mother's willful failure to support.
However, the court determined that DCS had not met its burden
of proving abandonment by failure to provide a suitable home,
persistence of conditions, or substantial noncompliance with
a permanency plan. The court found clear and convincing
evidence that termination is in the child's best
interest. Mother appeals.
raises the following issues on appeal, as taken verbatim from
Did the [trial] court err in finding that the termination of
parental rights ground of severe child abuse has been
Did the [trial] court err in finding that the termination of
parental rights ground of abandonment by failure to support
has been established?
Did the [trial] court err in finding that termination of
[mother's] parental rights is in the best interest of her
parent has a fundamental right, based on both the federal and
state constitutions, to the care, custody, and control of his
or her child. Stanley v. Ill., 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). While this right is fundamental, it is
not absolute. The State may interfere with a parent's
rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds
upon which termination proceedings may be brought. Tenn. Code
Ann. § 36-1-113(g). Termination proceedings are
statutory, In re Angela E., 303 S.W.3d at 250;
Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004),
and a parent's rights may be terminated only where a
statutory basis exists. Jones v. Garrett, 92 S.W.3d
835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr.,
980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).
terminate parental rights, a court must determine by clear
and convincing evidence the existence of at least one of the
statutory grounds for termination and that termination is in
the child's best interest. Tenn. Code Ann. §
36-1-113(c); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). "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 Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)
(citations omitted). Unlike the preponderance of the evidence
standard, "[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts
asserted is highly probable." In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
ground for termination is established by clear and convincing
evidence, the trial court conducts a best interest analysis.
In re Angela E., 303 S.W.3d at 251 (citing In re
Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)).
"The best interest[ ] analysis is separate from and
subsequent to the determination that there is clear and
convincing evidence of grounds for termination."
Id. at 254. The existence of a ground for
termination "does not inexorably lead to the conclusion
that termination of a parent's rights is in the best
interest of the child." In re C.B.W., No.
M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct.
App., filed June 26, 2006).
required to review all of the trial court's findings with
respect to grounds and best interest. In re
Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016)
("[W]e hold that in an appeal from an order terminating
parental rights the Court of Appeals must review the trial
court's findings as to each ground for termination and as
to whether termination is in the child's best interest[
], regardless of whether the parent challenges these findings
Supreme Court has stated our standard of review:
An appellate court reviews a trial court's findings of
fact in termination proceedings using the standard of review
in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts
review factual findings de novo on the record and accord
these findings a presumption of correctness unless the
evidence preponderates otherwise. In light of the heightened
burden of proof in termination proceedings, however, the
reviewing court must make its own determination as to whether
the facts, either as found by the trial court or as supported
by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate
parental rights. The trial court's ruling that the
evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo
with no presumption of correctness. Additionally, all other
questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of
Id. at 523-24 (internal citations omitted).
"When a trial court has seen and heard witnesses,
especially where issues of credibility and weight of oral
testimony are involved, considerable deference must be
accorded to . . . the trial court's factual
findings." In re Adoption of S.T.D., No.
E2007-01240-COA-R3-PT, 2007 WL 3171034, at *4 (Tenn. Ct.
App., filed Oct. 30, 2007) (citing Seals v.
England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d
912, 915 (Tenn. 1999)).
previously noted, DCS sought to terminate mother's
parental rights based upon severe child abuse. In its
petition, DSC alleged that
[t]his child was removed from the parents' custody due to
unresolved substance abuse issues, domestic violence in the
home, and mental health issues. During the pregnancy [mother]
had taken opiates, without a prescription, despite knowing
that such use was dangerous and could cause harm to her baby.
trial court found clear and convincing evidence that mother
had taken drugs during her pregnancy, despite knowing the
adverse effects that it could have on the child. In making
its ruling, the trial court stated the following:
[T]aking drugs in six months of pregnancy knowing the adverse
effects that it could have[.] It doesn't have to have
[adverse effects], it just could have. You got lucky here.
You stopped it, sounds like, which is great. But is that
still severe child abuse? Yeah it is. Absolutely severe
abuse. . . . [T]he questions that were posed to the doctor,
she's trying to answer from a scientific basis. She
doesn't even know or understand the legal ramifications
or issues. She doesn't know about the precedence . . .; a
year, and it's April 9th, and full term for using July,
and you still tested positive for opiates? In this court,
trial court's final decree of termination explained that
[the expert] testified that opiates or marijuana by
themselves are not dangerous, but that there are potential
long-term neurological consequences and the possibility of
growth retardation from the use of opiates during pregnancy.
. . . She also testified that, in her experience, among the
population of drug abusing women that she sees in her
practice, other risks attend the drug use, including not
knowing what you are putting in your body when you buy drugs
off the street; risking overdose when not taking medication
under a doctor's care; short of overdose, risking
impairment that could cause accidental injury to the fetus if
the mother falls or drives impaired; and risks associated
with taking the drugs in a manner not prescribed such as
snorting or IV use. Nothing in [the expert's] testimony
causes this [c]ourt to deviate from the long history of
appellate cases in Tennessee that set forth the requirements
for making a finding that the mother severely abused her
child by her abuse of drugs in pregnancy, knowing that such
abuse presented a risk of harm to her child.
The mother's own testimony revealed that she used drugs
during the first trimester of her pregnancy, and taking her
testimony in the most favorable light to the mother, she used
during the first month following her knowledge that she was
pregnant. She used Oxycodone and marijuana during that time
The mother knew the risk of harm associated with her abuse of
drugs during this pregnancy and continued to use such drugs
exposing her child to the risk of serious bodily injury or
(Paragraph numbering in original omitted.) The court
concluded that mother committed severe child abuse ...