One Day, Two Termination-Of-Parental-Rights Cases, Two Best-Interest Factors, Two Reversals: In re Autumn L. and In re Serenity W.

To terminate parental rights in Tennessee, courts must first find at least one of the statutory grounds for termination. If that finding is made, then the court must determine whether termination of parental rights is in the child’s best interest. Both findings must be made by the clear-and-convincing-evidence standard.

Tennessee Code Annotated § 36-1-113(i) lists nine nonexclusive factors courts must consider in the best-interest analysis. The first two factors are:

  1. Whether the parent has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent;
  2. Whether the parent has failed to effect a lasting adjustment after reasonable efforts by available social services agencies or such duration of time that lasting adjustment does not reasonably appear possible.

In two opinions issued by the Court of Appeals on February 8, 2019, these two factors were analyzed at length.

In re Autumn L. involved an effort to terminate Mother’s parental rights so the children, ages 9 and 11, could be adopted by their foster parents.

downloadBoth children were removed from Mother’s custody at an early age and have little or no memory of living with her. They do not have a meaningful relationship with her.

Mother has a lengthy history of drug use and criminal activity, particularly involving methamphetamine and marijuana.

Two months before the trial, Mother entered a rehabilitation program. She was attending four Narcotics Anonymous meetings a week, along with counseling and therapy. By the time of trial, she was on Step 2 of her 12-step program and had passed all drug tests administered as part of her recovery program.

The trial court found termination was not in the children’s best interests largely because Mother “appears [to be] on the road to recovery” and “has been taking steps to adjust her circumstances in order to be able to provide a safe and suitable living situation for the children.”

The Court of Appeals disagreed:

Best-interest factors one and two are written as faits accomplis, i.e., things that have been accomplished and are presumably irreversible. Specifically, these statutory factors asked the court to consider whether the parent “has made such an adjustment . . .” And whether the adjustment is permanent. . . . [I]t appears that the trial court focused its best-interest analysis on Mother’s recent attempt at sobriety but did not weigh her past behaviors, relapses, and recidivism. Mother has been given ample opportunity to change her destructive patterns. Despite these opportunities, the record shows that Mother’s decision to enter the drug treatment facility was made only after [the foster parents] filed their petition to terminate her parental rights and only two months before the hearing thereon. . . . [T]here is no evidence that any recovery she may achieve in the program will be permanent; this is especially so in view of her admitted relapses after previous attempts at sobriety.

* * * * *

While Mother has relapsed and accrued more criminal charges, the children have been moved from home to home. Now, in [the foster parents’] home, they have found stability and safety. . . . To make any change to that situation would clearly cause them emotional and psychological damage.

The trial court’s judgment was reversed, and Mother’s parental rights were terminated.

In re Serenity W. presents a somewhat similar history. Mother was addicted to methamphetamine and had a history of failed attempts at sobriety. Even after DCS petitioned to terminate her parental rights, she continued to use illegal drugs.

Five months before the trial, Mother entered an inpatient rehabilitation program and began intensive outpatient alcohol and drug treatment four days a week. Three months before trial, she began addressing her mental-health issues, began taking appropriate medication, enrolled in medication management, and began individual therapy. One month before trial, Mother obtained full-time employment at a fast-food restaurant.

Finding that termination of Mother’s parental rights was in the child’s best interests, the trial court terminated Mother’s parental rights.

In a 2-1 decision, a divided Court of Appeals reversed:

The first two statutory factors look at the parent’s current lifestyle and living conditions. The first factor focuses on whether the parent “has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the [parent’s] home.” And the second factor considers the potential for lasting change. Here, the trial court found that Mother’s recent positive changes were insignificant in light of the length of time [Child] has been in foster care and it was too soon to know if her adjustment would last.

We conclude that the evidence preponderates against the trial court’s findings on the first two factors. At the time of trial, Mother was employed, drug-free, and living with her grandparents. DCS presented no evidence that Mother’s current home was unsafe. Mother was also participating in intensive outpatient drug treatment, medication management, and individual mental-health therapy. These changes, albeit late in coming, were significant.

We recognize that Mother’s current sobriety is of short duration. She could relapse; she has done so before. And the relapse would jeopardize all of her recent progress. On the other hand, Mother has a strong support system with her grandparents, who are monitoring her progress in providing her transportation and housing. We cannot say that lasting adjustment did not reasonably appear possible.

* * * * *

The [trial] court focused on Mother’s past behavior and was unconvinced that her recent adjustment would last. Whether a return to the parent’s home is likely in the near future is an important consideration. The best-interest analysis necessarily involves some prediction of future events. Lacking a crystal ball, we cannot be sure that Mother’s positive changes will last. But the mere possibility that Mother could relapse and resume her previous behavior does not amount to clear and convincing evidence that termination is in the child’s best interests.

Mother has made significant positive changes in her lifestyle and living conditions. While she may not be ready to resume her role as a parent today, that is not the issue before us.

Finding that the evidence is less than clear and convincing that termination of Mother’s parental rights is in Child’s best interest, the termination of Mother’s parental rights was reversed.

Judge Susano dissented:

I strongly disagree with the majority.

With all due respect, I believe that the majority has fallen into the error of approaching this inquiry from the standpoint of the mother and not the child. As a human being, and a parent, I can understand how one might make this error; but, as a judge, one must always remember that the issue is what is best for the child, not the mother. This child has languished in limbo for over three years. . . .

Mother has not demonstrated that she is ready to parent the child. For three plus years, the child has had the presence and love of her great-grandparents. Their home is clearly a good place for the child. Mother, for too long, has lived life on the dark side. The relevant four months have come and gone with no change in Mother’s lifestyle. The majority emphasizes Mother’s improvement following the four months at issue. As a number of cases state, her acts are “too little, too late.” I would pave the way for the child to be adopted by these loving family members.

One day. Two opinions. Similar histories. Two statutory factors. Two reversals. Two mothers. One no longer has her parental rights. By one vote on a divided court, one does.

K.O.’s Comment: Note that Judge McBrayer joined the opinion in In re Autumn L. and wrote the majority opinion in In re Serenity W.

In re Autumn L. (Tennessee Court of Appeals, Middle Section, February 8, 2019).

In re Serenity W. (Tennessee Court of Appeals, Eastern Section, February 8, 2019).

Posted by

K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

One thought on “One Day, Two Termination-Of-Parental-Rights Cases, Two Best-Interest Factors, Two Reversals: In re Autumn L. and In re Serenity W.

Leave a Comment