Assigned on Briefs August 1, 2017
from the Juvenile Court for Knox County No. 139836 Timothy E.
termination of parental rights case, the Department of
Children's Services filed a petition to terminate the
parental rights of J.M.F. (father) with respect to L.M.H. and
K.K.F. (the children). DCS alleged the following grounds for
termination: (1) persistence of conditions; and (2)
substantial noncompliance with the permanency plan. DCS also
sought to terminate father's rights with respect to
L.M.H. on the ground of severe child abuse. The trial court
entered an order finding clear and convincing evidence
supporting each ground for termination. By the same quantum
of proof, the trial court found that termination of
father's rights is in the best interest of the children.
Father appeals. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed as Modified; Case Remanded
Houston II, Knoxville, Tennessee, for the appellant, J.M.F.
Herbert H. Slatery III, Attorney General and Reporter, and
Jordan K. Crews, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which W. Neal McBrayer and Arnold B. Goldin, JJ.,
CHARLES D. SUSANO, JR., JUDGE
was born in February 2011. On February 12, 2015, K.K.F.
tested positive for drugs at birth. On March 20, 2015, DCS
filed a petition for a restraining order, asking the court to
find the children dependent and neglected. Following a
hearing on March 30, 2015, the court found the children to be
dependent and neglected due to mother's substance abuse
issues. The trial court also found K.K.F. to be the victim of
severe child abuse by the mother based on her prenatal drug
use. The trial court allowed the children to remain in
father's custody and ordered that mother would have no
contact with the children.
12, 2015, the guardian ad litem filed an emergency motion to
review the children's placement. The GAL alleged that
father had no income to support the children because he had
lost his job; that he was providing inappropriate care to the
children; and that he was not participating in court-ordered
services. On June 16, 2015, the court found probable cause
that the children were dependent and neglected. The court
found that father was not complying with K.K.F.'s need
for physical therapy; that he was not cooperating with the
GAL; and that he was allowing mother to have contact with the
children in violation of the court's order. As a
consequence, the court placed the children in the temporary
custody of DCS for foster care.
the children entered foster care, they had considerable
problems. K.K.F. suffered from torticollis, a condition
affecting her neck and rendering her unable to hold up her
head. She was in need of physical therapy to avoid surgery.
Also, her head was misshaped, and she had an unhealed sore on
her head that left a scar. With respect to L.M.H., the foster
mother testified that he "had a lot of trouble attaching
to anyone really, he had a lot of anger, he had a lot of
behavioral issues." She stated that he "could be
extremely violent and destructive" and was behind
26, 2015, a permanency plan was developed for father. The
plan required father to do the following: (1) complete a
mental health evaluation and provide accurate and thorough
information; (2) cooperate with DCS and all service
providers; (3) provide a stable and safe home environment;
and (4) maintain a legal source of income sufficient to
provide for the family. The court later modified the plan to
add two requirements, i.e., that father complete
basic parenting classes and complete an alcohol and drug
assessment if he fails a drug screen. On September 16, 2015,
the court ratified the permanency plan.
trial court held a permanency hearing and found father to be
noncompliant. The court found that father had failed to
complete a mental health assessment until September 8, 2015,
despite knowing that this had been a requirement since June
2015. Additionally, the court found that father was not
providing an appropriate home for the children because he was
living with mother who suffered from substance abuse issues.
The court ordered that the children would remain in the
temporary custody of DCS.
and his half-brother disclosed to the foster parents that
father had been abusive. L.M.H. reported that father hit him
with a hanger and threw him off a bunk bed. On October 8,
2015, L.M.H. began treatment with a therapist. L.M.H.
reported to the therapist that father was verbally and
physically aggressive with him. L.M.H. and his half-brother
both reported to the therapist that L.M.H. was hit with a
belt, hit in the genitals, kicked, thrown to the floor, and
thrown up against a wall. Early in therapy, the therapist
diagnosed L.M.H. with post-traumatic stress disorder (PTSD).
The therapist testified that "when they came for
therapy, their behavior was very poor, and that's
typically a true reflection of kids who have experienced
trauma." She reported that L.M.H. "will need
therapy for a very long time to address the significant
trauma symptoms he has exhibited." Based on her
treatment of L.M.H., she could not recommend that L.M.H. be
returned to father's home. She found that it "would
be psychologically damaging to remove [L.M.H.] from the
current foster home . . . and would disrupt the progress he
is making and return him to a state of fear and
November 4, 2015, DCS filed a motion to suspend father's
visitation with the children based upon the recommendation of
the therapist. DCS asserted that "it appears that the
children have significantly worse behavior after visits with
their parents and this behavior can last for several days
after visits." DCS asked the court to suspend visitation
until the therapist "is of the opinion that the children
can initiate supervised contact with their parents without
the likely danger of psychological harm which will also
necessitate progress for the parents on their issues as
well." The court entered an order suspending visitation.
father's visitation with the children was suspended, he
failed to maintain contact with DCS. On July 6, 2016, DCS
filed a petition to terminate father's parental rights to
the children. DCS alleged the following grounds to terminate
father's rights: (1) persistence of conditions pursuant
to Tenn. Code Ann. § 36-1-113(g)(3); and (2) substantial
noncompliance with the permanency plan pursuant to Tenn. Code
Ann. § 36-1-112(g)(2). DCS also alleged that L.M.H. is
the victim of severe child abuse pursuant to Tenn. Code Ann.
§§ 36-1-113(g)(4) and 37-l-102(b)(22). The trial
court found clear and convincing evidence supporting each
ground for termination. The court also found that termination
of father's rights is in the best interest of the
children. He appeals.
raises the following issues on appeal as taken verbatim from
Did the trial [c]ourt err by allowing hearsay statements made
by the children into evidence under circumstances that did
not indicate trustworthiness?
Was [DCS] barred by the doctrine of res judicata as
well as by the plain language of Tenn. Code Ann. §
37-1-129(b)(2) from pursuing a case of severe abuse against
Did the trial [c]ourt err by terminating the parental rights
of [f]ather for severe abuse pursuant to Tenn. Code Ann.
§§ 36-1-113(g)(4); 37-l-102(b)(22)(B); and
Did the trial [c]ourt err by terminating the parental rights
of [f]ather for substantial noncompliance with the permanency
plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2)?
Did the trial [c]ourt err by terminating the parental rights
of [f]ather for persisten[ce of] conditions pursuant to Tenn.
Code Ann. §36-1-113(g)(3)?
Did the trial [c]ourt err by finding that . . . termination
of [f]ather's parental rights was in the best interest
of his children . . . ?
(Italics in original; paragraph numbering in original
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 K, 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 maybe 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
The 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)).
brief, father asserts that the trial court erred in allowing
the foster mother to testify about statements that L.M.H.
made to her regarding father's abuse. Father objected to
the testimony on the basis of hearsay, but the court
overruled the objection. The court found that the statements
were a "child's unsolicited statement regarding