Facts

The child involved in this case was born in February 2000. The child’s Father is deceased, and the child and two of her siblings were removed from her Mother’s custody by the Department of Children’s Services (“DCS”) in February 2010. This occurred after the Mother entered an agreed order of dependency and neglect. The basis of the court’s finding that the children were dependent and neglected was the “unsatisfactory living conditions” in the Mother’s home. Mother was permitted supervised visitation with the children.

In March 2010, DCS put together a permanency plan for the child, with the goal of returning her to her Mother or placing her with a relative. This plan required the Mother to comply with the terms of her current probation, not to obtain new criminal charges, to complete a parenting assessment and follow all recommendations, to continue to search for appropriate housing, and to have a legal income. Mother agreed to these terms. A second plan was developed in December 2010 to add the requirement that Mother obtain and maintain housing for at lease six months. A third plan was put together in March 2012, and this required Mother to maintain housing and employment for at least three months after she was released from jail.

On July 25, 2012, DCS filed a petition to terminate the Mother’s parental rights, alleging the following grounds: 1) abandonment for willful failure to visit; 2) abandonment by willful failure to pay support; 3) substantial non-compliance with the permanency plan; and 4) persistence of the conditions that caused the removal of the child.

The trial court found clear and convincing evidence to support all four grounds for termination, and the Mother’s parental rights were terminated.

Appeal

Pursuant to Tenn. Code Ann. §36-1-113(1)(1), an order that terminates parental rights “shall have the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian.” To obtain a termination of parental rights, DCS had to prove the existence of one of the statutory grounds for termination and also that termination is in the child’s best interest.

Abandonment: Abandonment for the purposes of terminating parental rights means that the parent has willfully failed to visit or willfully failed to support the child for a period of four consecutive months immediately preceding the filing of the petition.

Willfulness is an essential element to have a determination that a parent has abandoned the child. A person’s failure to support a child is willful when the parent is aware of his or her duty to support the child, has the ability to provide support, makes no attempt to support, and has no justifiable excuse for not supporting the child. When a parent is not financially able to provide support, that parent is not willfully failing to provide support.

Mother was required to pay $430.00 per month for support of her children. The trial court found that the Mother did not use any of her employment income to support her child. Mother stated only that she might have provided some clothes for the child. The court found that this was mere “token” support.

The court did not address whether the other grounds were properly proven, as a parent’s rights can be terminated on the basis of one statutory ground.

Best Interest Analysis: This analysis is a fact-intensive inquiry that requires the court to consider the facts of the case from the child’s perspective rather than the parent’s perspective.

The court found that the Mother had not made such an adjustment in her circumstances, conduct or conditions that would provide a safe environment for her child.

The Mother failed to affect a lasting adjustment after reasonable efforts were made on the part of DCS, and these efforts were made for such a length of time that it does not appear reasonably possible for the Mother to make necessary changes in her situation. The Mother had missed many visitations and phone communications with the child, even though she had been provided with gas cards and a means to contact the child. The court also found that there was no meaningful relationship between the Mother and the child.

A change in caretakers and environment would have been detrimental to the child’s emotional, psychological and medical condition.

The physical environment in Mother’s home was unhealthy and unsafe for the child. Mother was incarcerated at the time of the hearing. There was ongoing criminal activity in the Mother’s home, the Mother had previously tested positive for drugs while on probation, and she had been incarcerated several times during the child’s life.

Finally, Mother had not paid child support for the care and support of her child, and she showed little interest in the welfare of the child. She did not take advantage of the services offered to her by DCS, and she willfully failed to visit and support the child, demonstrating her lack of interest in the child’s welfare and safety.

The appellate court found that the trial court was correct in finding that termination of the Mother’s parental rights was in the child’s best interest.

In re Aspyn S.J. – Filed August 27, 2013; No. M2013-00855-COA-R3-PT.

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