In Re Rylee L.

                                                                                           12/14/2023
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                         November 7, 2023 Session

                               IN RE RYLEE L. ET AL.

                 Appeal from the Juvenile Court for Warren County
                      No. JV2794      Brandon J. Cox, Judge


                             No. M2023-00487-COA-R3-PT


In the course of two separate dependency and neglect proceedings, a mother and father
were found to have committed severe child abuse on their two children. In this termination
proceeding, the trial court found that the grounds for termination of (1) severe child abuse,
and (2) failure to manifest an ability and willingness to personally assume custody or
financial responsibility of the children had been proven and that it was in the children’s
best interest to terminate their parents’ parental rights. The parents appealed. We affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which W. NEAL MCBRAYER
and JEFFREY USMAN, JJ., joined.

Walter Alan Rose, Tullahoma, Tennessee, for the appellants, Cassie L. and Austin L.

Jonathan Skrmetti, Attorney General and Reporter, and Jordan Keith Crews, Senior
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.

                                        OPINION

       Cassie L. (“Mother”) and Austin L. (“Father”) (collectively “the appellants”) are
married and are the biological parents of Rylee L. (born in 2019) and Stormy L. (born in
2021). On August 2, 2020, Father was involved in a single-car accident. Blood taken from
Father at the scene of the accident tested positive for methamphetamine, fentanyl,
amphetamine, and ketamine. As a result, police arrested Father and charged him with
driving under the influence, and the Department of Children’s Services (“the Department”
or “DCS”) received a report that Rylee was a drug-exposed child.
        On August 7, 2020, DCS filed a petition alleging that Rylee was dependent and
neglected and requesting that she be placed in the sole custody of Mother. That same day,
the juvenile court entered an order placing Rylee in Mother’s sole custody subject to a
protective supervision plan that required Mother to maintain regular contact with DCS,
comply with random drug screens, complete anger management and individual therapy,
submit to a parenting assessment and follow all resulting recommendations, and obtain and
maintain safe and stable housing. When Mother failed to comply with the August 7 order,
the court entered an order on October 12, 2020, placing Rylee in DCS custody. Two days
later, Mother and Rylee submitted to hair follicle drug screens, and both returned positive
for methamphetamine, hydrocodone, and oxycodone. On July 2, 2021, the trial court
entered an order adjudicating Rylee dependent and neglected and finding that she was the
victim of severe child abuse perpetrated by Mother and Father. Neither parent appealed
this order.

       Mother became pregnant with Stormy while the dependency and neglect
proceedings for Rylee were pending. During the third month of the pregnancy, Mother
and Father submitted to hair follicle drug screens. Mother’s screen returned positive for
methamphetamine, and Father’s returned positive for methamphetamine, hydrocodone,
and oxycodone. A little over a month before Stormy was born, both parents again
submitted to hair follicle drug screens. This time both parents were positive for
methamphetamine, hydrocodone, and oxycodone. Thus, when Stormy was born, DCS
received a report alleging that she had been exposed to drugs.

       The Department filed a petition alleging that Stormy was dependent and neglected
and requesting that she be placed in DCS custody. The court entered an order on December
31, 2021, placing Stormy in DCS custody. On May 23, 2022, the trial court entered an
order adjudicating Stormy dependent and neglected and finding that she was a victim of
severe child abuse perpetrated by Mother and Father. Neither parent appealed this order.

       During the custodial period, DCS created four permanency plans for Mother and
Father that were all ratified by the court. The plans’ requirements included the following:
submit to random drug screens; complete an alcohol and drug assessment and follow the
recommendations; refrain from abusing prescription medications and alcohol; complete
domestic violence classes; complete a psychological evaluation and follow the
recommendations; complete a parenting assessment and parenting classes; obtain and
maintain suitable housing; allow DCS to conduct home visits; obtain and provide proof of
legal means of income; maintain contact with DCS; attend scheduled visits with the
children; and attend anger management classes.

       The Department attempted to help the parents complete the requirements of the
permanency plans. Nevertheless, Mother and Father completed very little. Most
importantly, Mother and Father did not comply with the requirements relating to their
substance abuse issues. Both refused to submit to several drug screens for DCS, and they

                                           -2-
failed several of the ones to which they did submit. Mother and Father both completed an
alcohol and drug assessment early on in the custodial period, but DCS required them both
to complete a second alcohol and drug assessment when they continued failing drug
screens. Neither completed a second alcohol and drug assessment. Father was required to
submit to drug screens for the Recovery Court program he was in, and he passed the drug
screens administered through that program. Those drug screens, however, did not include
a test for methamphetamine like the ones administered by DCS, which Father failed.

        On October 20, 2022, DCS filed a petition to terminate Mother’s and Father’s
parental rights. After a one-day trial, the trial court entered an order terminating Mother’s
and Father’s parental rights on the grounds of severe child abuse and failure to manifest an
ability and willingness to personally assume custody or financial responsibility of the
children. In the order, the court further determined that termination of Mother’s and
Father’s parental rights was in the best interest of the children.

                                    STANDARD OF REVIEW

       A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 

 (1972); In re Angela E., 

 (Tenn.
2010) (citing Troxel v. Granville, 

 (2000)); Nash-Putnam v. McCloud, 

 (Tenn. 1996) (citing Nale v. Robertson, 

 (Tenn.
1994)). This right is not absolute. In re Angela E., 

. The Tennessee
General Assembly has, by statute, established “‘those situations in which the state’s interest
in the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.’” In re Jacobe M.J., 

 (Tenn. Ct. App. 2013) (quoting In re W.B., IV., Nos. M2004-00999-COA-
R3-PT, M2004-01572-COA-R3-PT, 

, at *7 (Tenn. Ct. App. Apr. 29,
2005)).

        Tennessee Code Annotated section 36-1-113 establishes the grounds and
proceedings by which parental rights may be terminated. Initially, a petitioner must prove
that at least one termination ground exists. 

(c)(1); In re Angela
E., 

. The petitioner must then prove that it is in the child’s best interest
to terminate the parents’ rights. 

(c)(2); In re Valentine, 

 (Tenn. 2002). “In light of the interests and consequences at stake, parents
are constitutionally entitled to fundamentally fair procedures [] in termination
proceedings.” In re Carrington H., 

 (Tenn. 2016) (citing Santosky v.
Kramer, 

 (1982)).

       As our Supreme Court has stated:

               Among the constitutionally mandated fundamentally fair procedures[]
       is a heightened standard of proof—clear and convincing evidence. Santosky,

                                              -3-
       

, 

. This standard minimizes the risk of
       unnecessary or erroneous governmental interference with fundamental
       parental rights. Id.; In re Bernard T., 

 (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
       Bernard T., 

 (citations omitted). The clear-and-
       convincing-evidence standard ensures that the facts are established as highly
       probable, rather than as simply more probable than not. In re Audrey S., 

 (Tenn. Ct. App. 2005); In re M.A.R., 

       (Tenn. Ct. App. 2005).

 Thus, on appeal, we apply the following principles:

       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). In re
       Bernard T., 

; In re Angela E., 

. 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 re Bernard T., 

; In re M.L.P.,
       

 (Tenn. 2009); In re Adoption of A.M.H., 

 (Tenn. 2007). 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.
       In re Bernard T., 

. 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. In re M.L.P., 

 (quoting In re Adoption of
       A.M.H., 

). Additionally, all other questions of law in
       parental termination appeals, as in other appeals, are reviewed de novo with
       no presumption of correctness. In re Angela E., 

.

Id. at 523-24.

                                           ANALYSIS

I. Termination grounds.

       In their brief, the appellants state that they “do not dispute the grounds for
termination of their parental rights. . . .” Indeed, they did not raise as error the determination
that grounds for termination exist. Instead, they argued that the children’s best interest does

                                              -4-
not require termination of Mother’s and Father’s parental rights. Yet, “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 interests, regardless of whether the parent challenges these findings on appeal.” Id. at
525-26. The appellants’ attorney knew of this requirement; he cited the Carrington case in
his brief. He did not, however, seek to aid this court by bestowing upon us his thoughts
about the grounds beyond saying they were not contested.1 Failing to raise an issue in the
listing of issues in an appellate brief would ordinarily be considered a waiver of the issue.
See Augustin v. Bradley Cnty. Sheriff’s Off., 

, 226 (Tenn. Ct. App. 2019)
(stating that “issues that are not properly designated are generally waived even when
argued in the body of the brief”); see also Newcomb v. Kohler Co., 

(Tenn. Ct. App. 2006) (noting that a party’s failure “to cite to any authority or to construct
an argument regarding [a] position on appeal constitutes waiver of that issue”). Under the
requirements of Carrington, though, we must dive into the cold words of the record to
ascertain the validity of the grounds.

                                     Severe Child Abuse

       The trial court terminated both parents’ parental rights pursuant to 

(g)(4), which states that a parent’s rights may be terminated when:

       The parent . . . has been found to have committed severe child abuse, as
       defined in § 37-1-102, under any prior order of a court or is found by the
       court hearing the petition to terminate parental rights or the petition for
       adoption to have committed severe child abuse against any child[.]

(Emphasis added). Thus, a petitioner may establish this ground by showing that the parent
was found to have committed severe child abuse in “any prior order of a court.” Nothing
more need be proved.

       “Dependency and neglect proceedings are separate and distinct from proceedings to
terminate parental rights.” In re Carrington H., 

. We have “repeatedly
applied the doctrine of res judicata to prevent a parent from re-litigating whether he or she
committed severe child abuse in a termination of parental rights proceeding when such a
finding has already been made in a previous dependency and neglect action.” In re Kylea
K., No. E2017-02097-COA-R3-PT, 

, at *4 (Tenn. Ct. App. June 21,
2018); see also, e.g., In re Dakota C.R., 

 (Tenn. Ct. App. 2012); In re
Heaven L.F., 

 (Tenn. Ct. App. Feb. 19, 2010). Pursuant to the doctrine
of res judicata, “‘an existing final judgment rendered upon the merits, without fraud or

   1
     We commend the attorneys for the Department of Children’s Services for noting Carrington and
addressing the grounds for termination in their brief.


                                              -5-
collusion, by a court of competent jurisdiction, is conclusive of the rights, questions and
facts in issue as to the parties and their privies, in all other actions in the fraud or collusion,
by a court of competent jurisdiction, is conclusive of the rights, questions and facts in issue
as to the parties and their privies, in all other actions in the same or any other judicial
tribunal of concurrent jurisdiction.’” In re Heaven L.F., 

 (quoting
Galbreath v. Harris, 

 (Tenn. Ct. App. 1990)).

       All the requirements of res judicata are met in this case. In the Warren County
Juvenile Court’s July 1, 2021 order adjudicating Rylee dependent and neglected, the court
found that both parents committed severe child abuse on Rylee2 under 

(b)(27)(E) (“Knowingly or with gross negligence allowing a child under eight (8)
years of age to ingest an illegal substance or a controlled substance that results in the child
testing positive on a drug screen, except as legally prescribed to the child[.]”). Similarly,
in the Warren County Juvenile Court’s May 24, 2022 order adjudicating Stormy dependent
and neglected, the court found that both parents committed severe child abuse on Stormy
under 

(b)(27)(E). Neither order has been appealed. The orders
are final.

       We affirm the termination of both parents’ parental rights based on the ground of
severe child abuse.

        Failure to Manifest an Ability and Willingness to Personally Assume Custody
                         or Financial Responsibility of the Children

         Under 

(g)(14), parental rights may be terminated when:

         A parent or guardian has failed to manifest, by act or omission, an ability and
         willingness to personally assume legal and physical custody or financial
         responsibility of the child, and placing the child in the person’s legal and
         physical custody would pose a risk of substantial harm to the physical or
         psychological welfare of the child[.]

        “If a person seeking to terminate parental rights proves by clear and convincing
proof that a parent or guardian has failed to manifest either ability or willingness, then the
first prong of the statute is satisfied.” In re Neveah M., 

, 677 (Tenn. 2020)
(emphasis in original). Here, DCS showed that ability and willingness was lacking in both
parents. Neither parent could remain consistently employed. Both Mother and Father have
thwarted most of the Department’s efforts to inspect their home, but the one inspection
they permitted did not reveal a home that was safe, clean, and ready for two young children.
Rather, the home was “noticeably dirty,” with boxes of “stuff” laying around, and food on
the kitchen counter. One could see through the kitchen floor in places, and “[y]ou could

   2
       The order mistakenly spells her name “Riley.”
                                                  -6-
practically fall through it” in other spots. Both parents failed to cooperate with drug tests,
and the proof gives this Court little confidence that they have overcome their addictions.
Mother even failed a drug screen two months before trial.

        These facts also support a finding that neither parent has manifested a willingness
to assume custody or financial responsibility for the children, a finding that requires
concrete actions, not mere words. Furthermore, over two years after DCS took custody of
Rylee, both parents are nowhere near completing their permanency plan tasks. Father is
farther along than Mother, but his efforts are recent. These parents have not shown any real
interest in the children. They have not inquired about the children or their needs. The
parents’ attendance at scheduled visitations was poor. Mother was late for approximately
20 visits, on time for approximately 6, and missed approximately 14. Father was late for
20 visits, on time for approximately 8, and missed approximately 12. Neither parent has
made more than token payments for child support unless compelled by jail placement or
IRS intercept.

       As for the second prong of 

(g)(14), “placing the child
in the person’s legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child,” the DCS social worker testified that Mother
had not maintained sobriety and that “the department cannot see sobriety” in Father. The
social worker also noted the parents’ failures to complete the requirements of their
permanency plans. These facts establish a situation where there was a risk of substantial
harm.

       We affirm the termination of both parents’ parental rights based on the ground of
failure to manifest an ability and willingness to personally assume custody or financial
responsibility of the children.

II. Best Interest of the Children

        When examining the best interest of the children in the termination of parental rights
context, we are directed by statute to consider the nonexclusive factors listed in 

(i)(1). The statute enumerates factors that the court “shall consider,” In re
Angela E., 

, but a court is not required to find that each of the enumerated
factors exists before concluding that it is in the best interest of the child to terminate a
parent’s rights. In re M.A.R., 

 (Tenn. Ct. App. 2005). The statute
similarly does not call for a mechanical determination of each of the statute’s factors, but
rather the relevancy and weight of each factor will be unique to each case. In re Marr, 

 (Tenn. Ct. App. 2005). Therefore, in certain circumstances, the
consideration of one factor may be determinative. 

 (citing In re Audrey S., 

 (Tenn. Ct. App. 2005)). However, this does not relieve a court of its duty to
consider each factor and, even in cases where one factor is outcome determinative, the


                                            -7-
court must consider all factors and relevant proof that a party offers. In re Gabriella D.,

 (Tenn. 2017).

       In the best interest analysis, the facts considered must be proven by “‘a
preponderance of the evidence, not by clear and convincing evidence.’” 

 at 681 (quoting
In re Kaliyah S., 

 (Tenn. 2015)). “‘After making the underlying factual
findings, the trial court should then consider the combined weight of those facts to
determine whether they amount to clear and convincing evidence that termination is in the
child’s best interest[s].’” 

 (quoting In re Kaliyah S., 

). We will
examine each factor in turn.

       Factor A concerns “[t]he 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.” 

(i)(1)(A). Rylee has flourished in the pre-adoptive
foster home. Stormy has never lived with her parents. They live in a safe and stable
environment.

        Factor B considers “[t]he effect a change of caretakers and physical environment is
likely to have on the child’s emotional, psychological, and medical condition.” 

 36-1-
113(i)(1)(B). The social worker testified that Rylee would backslide after seeing her
parents and told of a highly negative reaction Rylee had when she thought she was going
to see her parents. The social worker testified that a change in caretakers would also be
detrimental to Stormy, who has never lived with her parents and is bonded with the foster
parents. Furthermore, Stormy has several medical conditions that require treatment and
vigilance. Neither parent has shown an interest in her condition.

       Next, under Factors C and D, neither parent knows the needs of the children. As the
social worker testified, a bond “just does not exist,” and she did not believe it would
develop. See 

 36-1-113(i)(1)(C), (D) (“Whether the parent has demonstrated continuity
and stability in meeting the child’s basic material, educational, housing, and safety needs;”
and “[w]hether 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.”).

       Factor E regards “[w]hether 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.” 

 § 36-1-113(i)(1)(E). As noted previously, the parents had
poor attendance at scheduled visitations. Mother was late for approximately 20 visits, on
time for approximately 6, and missed approximately 14. Father was late for 20 visits, on
time for approximately 8, and missed approximately 12. There were some visits where the
children were upset. At least one visit ended early because the parents could not handle
Stormy.



                                            -8-
       Factor F considers “[w]hether the child is fearful of living in the parent’s home.” Id.
§ 36-1-113(i)(1)(F). The record contains no evidence regarding this factor.

       Next, Factor G looks at “[w]hether the parent, parent’s home, or others in the
parent’s household trigger or exacerbate the child’s experience of trauma or post-traumatic
symptoms.” Id. § 36-1-113(i)(1)(G). The social worker believed that putting Rylee back in
the home from which she was removed “would create a trauma trigger for her.”

       Factor H concerns “[w]hether the child has created a healthy parental attachment
with another person or persons in the absence of the parent.” Id. § 36-1-113(i)(1)(H). The
social worker testified that Rylee had a very strong parental attachment to her foster
parents, and Rylee refers to them as Mommy and Daddy. Foster mother testified that “we
do everything as a family together. We’re a unit.” Stormy is also bonded with the foster
parents and to Rylee.

        Factor I considers “[w]hether the child has emotionally significant relationships
with persons other than parents and caregivers, including biological or foster siblings, and
the likely impact of various available outcomes on these relationships and the child’s access
to information about the child’s heritage.” Id. § 36-1-113(i)(1)(I). Rylee enjoys ballet. She
has many friends at church and daycare, and she has lots of cousins who are also friends.
She has two sets of grandparents who love her. Rylee and Stormy are closely bonded.
Stormy is also close to members of foster mother’s family.

       Next, under Factor J, we consider “[w]hether 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.” Id. § 36-1-113(i)(1)(J). Neither parent has
demonstrated a lasting adjustment, and they have completed few of the requirements of
their permanency plans. Instead, they have mostly been uncooperative. On October 27,
2021, Father pled guilty to driving on a revoked driver’s license, first offense, and to
violating the financial responsibility law. Mother failed a drug screen two months before
trial.

       Factor K concerns “[w]hether the parent has taken advantage of available programs,
services, or community resources to assist in making a lasting adjustment of circumstances,
conduct, or conditions.” Id. § 36-1-113(i)(1)(K). As noted, neither parent has completed
the requirements of the permanency plans. They were offered a number of ways to receive
various assessments. Mother completed virtually none and lied on the one she did
complete. Father has gone through the drug court program, but he has not completed the
requirements of the permanency plans.


                                            -9-
        Next, Factor L looks at “[w]hether 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.” Id. § 36-1-113(i)(1)(L). The Department created permanency plans,
administered drug screens, arranged supervised visits for the parents, gave the parents
contact information for various providers. and obtained funding for some examinations.

       Factor M concerns “[w]hether 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.” Id. § 36-1-113(i)(1)(M). Neither parent has demonstrated a sense of
urgency. They have completed little to none of the requirements of the permanency plans,
and the social worker testified that they are basically back to square one on them.

       Factor N pertains to “[w]hether the parent, or other person residing with or
frequenting the home of the parent, has shown brutality or physical, sexual, emotional, or
psychological abuse or neglect toward the child or any other child or adult.” Id. § 36-1-
113(i)(1)(N). The juvenile court found that both parents perpetrated severe child abuse on
both children.

        Factor O considers “[w]hether the parent has ever provided safe and stable care for
the child or any other child.” Id. § 36-1-113(i)(1)(O). By court order, Stormy was removed
from her parents’ custody the day after she was born. During Mother’s pregnancy with
Stormy, Mother and Father failed two drug tests. When Rylee was almost a year old, she
failed a drug test. Exposure to drugs is not part of a safe or stable environment.

       Factor P looks at “[w]hether the parent has demonstrated an understanding of the
basic and specific needs required for the child to thrive.” Id. § 36-1-113(i)(1)(P). The social
worker testified that the parents had “a lack of interest in the children and what their needs
are throughout the 28 months of this case.” Neither parent ever reached out to the social
worker, even once, to check on the children. Moreover, the parents have not demonstrated
an understanding of Stormy’s unique medical conditions that require special care and
vigilance.

       Factor Q considers “[w]hether 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.” Id. § 36-1-113(i)(1)(Q). The one home inspection
permitted showed the home to be dirty and dangerous. The social worker has not been
allowed inside since that inspection. The parents have not followed the permanency plans
and have not taken the required parenting classes.

        Factor R considers “[w]hether the physical environment of the parent’s home is
healthy and safe for the child.” Id. § 36-1-113(i)(1)(R). A dirty home with holes in the
floors is neither healthy nor safe.

                                            - 10 -
       As to Factors S and T, the parents occasionally made token payments, but the only
significant payments were due to incarceration for failure to pay child support and an IRS
intercept. Lastly, both parents told the social worker that they were depressed and stated
that their drug usage was linked to their mental health. Absent appropriate treatment, no
reason has been offered in the record that anything would change. See id. § 36-1-
113(i)(1)(S), (T) (“Whether the parent has consistently provided more than token financial
support for the child,” and “[w]hether 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.”).

        During oral argument, the parents’ attorney made a rather strident argument that
drug addicted parents need more time to make the changes necessary to regain custody of
their children. The best interest analysis, however, is intended to ascertain the best interest
of the children, not the parents. Furthermore, “the prompt and permanent placement of the
child in a safe environment is presumed to be in the child’s best interest.” Id. § 36-1-
113(i)(2). No proof in the record rebuts this statutory presumption.

       We agree with the trial court that clear and convincing evidence supports the
determination that termination of the parents’ parental rights is in the best interest of Rylee
and Stormy.

                                        CONCLUSION

       The judgment of the trial court is affirmed. Costs of this appeal are assessed against
the appellants, Austin L. and Cassie L., for which execution may issue if necessary.



                                                     _/s/ Andy D. Bennett________________
                                                      ANDY D. BENNETT, JUDGE




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