In Re William B. ( 2021 )

10/22/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 2, 2021
IN RE WILLIAM B.
Appeal from the Juvenile Court for Rutherford County
No. TC-3799 Donna Scott Davenport, Judge
___________________________________
No. M2020-01187-COA-R3-PT
___________________________________
Mother appeals the termination of her parental rights to one child. In addition to disputing
the grounds for termination and best interest, Mother argues on appeal that she should have
been appointed counsel in the termination proceeding and that the Tennessee Department
of Children’s Services violated Tennessee Code Annotated section 33-6-401. We conclude
that the record demonstrates that Mother expressly waived her right to counsel and failed
to show that the waiver was ineffective. We further hold that section 33-6-401 was
inapplicable in this case. Finally, we conclude that clear and convincing evidence was
presented of both the grounds for termination and that termination is in the child’s best
interest. As such, we affirm the decision of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II and W. NEAL MCBRAYER, JJ., joined.
Carl R. Moore, Murfreesboro, Tennessee, for the appellant, Tesha L. B.
Herbert H. Slatery, III, Attorney General and Reporter; Lexie A. Ward, Assistant Attorney
General, for the appellee, State of Tennessee, Department of Children’s Services.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
On April 15, 2017, Petitioner/Appellee the Tennessee Department of Children’s
Services (“DCS”) received a referral regarding a lack of supervision against
Respondent/Appellant Tesha L.B. (“Mother”).1 The referral stated that Mother called 911
because the child, who was a little over two months old, was having difficulty breathing.
The EMS workers who arrived at the scene reported that Mother did not appear to have
proper infant supplies. While at the hospital, Mother was observed acting in an erratic and
paranoid state. Mother also informed staff that she was “not in the right mind to make
medical decisions” for the child and signed all medical decision-making over to the child’s
doctors.2
Training officer and child protective services assessor, Maya Sanchez, spoke with
Mother on April 15. Mother claimed during this meeting that she could lay her child down
wherever she pleased, even on his stomach. As a result, DCS provided Mother with safe
sleep information. Mother also informed DCS that the child should be able to sit up at two
months old, claimed that the child was vegan, and stated that although she was
supplementing breastfeeding with formula, she was limiting the child to only a certain
number of ounces per day and was not feeding the child after daycare. Still, DCS
determined that removal of the child was not necessary.
Ms. Sanchez and Juliana Potter, another child protective services assessor, met with
Mother on April 17, 2017 at the DCS office. Mother was calm at times during the meeting,
but then quickly transitioned to angry yelling and screaming. During the meeting, DCS
created a noncustodial permanency plan that required, inter alia, that Mother complete a
clinical psychological assessment. According to later testimony, Mother signed the plan
but then put a large “X” over her name. Mother also slammed her hand on the table during
the meeting, which appeared to scare the child.
On April 21, 2017, DCS filed a non-custodial services petition in the Rutherford
County Juvenile Court (“the juvenile court” or “the trial court”) to order Mother to
participate in services with DCS. There is no dispute that Mother was never served with
1
To protect the identity of children in parental rights termination cases, initials are used instead of
last names.
2
In her reply brief, Mother asserts that there was no evidence presented that the events that led to
DCS involvement occurred. Respectfully, we disagree. Here, during the termination trial, DCS workers
testified as to what led to their involvement with Mother and the child. No objection was ever made that
the DCS workers could not testify as to those facts or that this testimony could not be presented for the truth
of the matter asserted, due to a lack of personal knowledge or otherwise. Moreover, Mother did not raise
any argument in her initial brief that this testimony was not properly considered as substantive evidence.
Instead, she raised this issue in a cursory fashion in her reply brief. This is not a proper way to raise this
evidentiary issue. See Tenn. R. Evid. 103 (requiring a timely objection when an error is predicated on the
admission of evidence); Owens v. Owens, 241 S.W.3d 478, 499 (Tenn. Ct. App. 2007) (“A reply brief is a
response to the arguments of the appellee. It is not a vehicle for raising new issues.”). As a result, we
conclude that DCS did submit proof as to what led to their involvement with the child that can be considered
in this appeal. Moreover, as made clear throughout this Opinion, DCS’s decision to remove the child
occurred after a multitude of personal interactions between Mother and various DCS workers, all of whom
testified about their interactions with Mother at trial.
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this petition, and it was ultimately dismissed.
DCS attempted to work with Mother on the noncustodial plan for the two weeks
that followed the filing of the non-custodial services petition. Mother was generally
uncooperative. Mother claimed that she did not need to work services because the child’s
alleged biological father was going to take custody of the child.3 But Mother provided no
documentation to support that claim or her claim that she was married to the child’s father.
Indeed, Mother never provided proof that she and the biological father were married, and
the father’s conduct throughout the course of this case indicated that he did not intend to
take responsibility for the child in any manner. At times, DCS was unable to make any
contact with Mother.
What came next is somewhat difficult to discern from the record. A hearing on the
unserved petition for court-ordered services was held before a juvenile magistrate on May
3, 2017. Mother was unsurprisingly not present. By this time, DCS had apparently come
to believe that the child needed to be placed in DCS custody. An order was later entered
on June 19, 2017,4 from this hearing, which states that the matter presented on that date
was whether there was probable cause to find the child dependent and neglected. As of
May 3, however, no such petition had been filed. The magistrate nevertheless conducted a
hearing in which testimony was heard. The magistrate first noted that Mother had not been
served because she had absconded with the child. The magistrate further found that
Mother has displayed some disturbing mental and emotional instability as
evidenced by not only her behaviors but also her actions; Mother exhibited
very odd behaviors while at the Hospital as alleged in the State’s Petition;
Mother’s reactions to hospital staff is of concern to the Court and a
demonstration of Mother’s mental and emotional instability; Mother’s further
reactions to the DCS Workers to the point where the Mother called 911 on
DCS during a [Child and Family Team Meeting] gives the Court concerns as
to Mother’s emotional and mental stability . . . .
The magistrate also found that Mother failed to comply with any of the requirements and
tasks requested by DCS. The magistrate therefore ruled that there was probable cause to
believe that the child was dependent and neglected and placed the child in DCS custody.
The order was mailed to Mother’s last known address.
In the afternoon following the May 3, 2017 hearing, DCS workers arrived at
Mother’s home, but she did not answer the door. A sign on her door indicated that Mother
3
Only one man has ever been alleged to be the child’s biological father in this case.
4
The order is marked as “lodged” on a date in May. However, the exhibit sticker was placed over
this stamp and nothing more than a partial date of “5-1” is visible. We assume that this order was therefore
“lodged” between May 10th and May 19th.
-3-
was out of town. But the DCS workers observed Mother leaving her apartment on this date
and attempted to flag Mother down. She did not stop, and eventually sped away from the
DCS workers with the child in the car. The DCS workers called 911 for assistance, and a
“be on the lookout” was requested. Mother did not initially answer calls or texts, but did
call Ms. Potter later that afternoon. In that call, Mother called Ms. Potter a “psycho b****”
and directed DCS to stop calling Mother. During this phone call, Mr. Potter informed
Mother that the child had been placed in DCS custody and that Mother needed to present
the child to DCS. Mother refused.
On May 4, 2017, DCS formally filed a petition to declare the child dependent and
neglected and for emergency temporary legal custody. On May 5, 2017, a juvenile
magistrate entered an ex parte custody order and an order for Attachment Pro Corpus
commanding the Sheriff to deliver the child to DCS. Although Mother was informed that
the child had been placed in DCS custody by the juvenile court, she refused to hand the
child over to DCS. Instead, DCS did not obtain physical possession of the child until
August 14, 2017. On that date, DCS located Mother through TennCare and arrived with a
police escort at the listed address to remove the child. Mother called the police on DCS,
attempted to leave with the child, and accused DCS of trying to steal her child. Mother
eventually allowed the child to be removed after being threatened with criminal charges.
The child was placed in the home of a foster family, where he remained at the time of trial.
On August 23, 2017, Mother filed a pro se motion in the dependency and neglect
action for the return of her child. Mother later filed a motion for a court-appointed attorney
on September 1, 2017. Mother was served with the dependency and neglect petition on or
about September 6, 2017. On the same day, a juvenile court magistrate appointed attorney
Richard Roney to represent Mother. Also on that day, Mother, by and through counsel,
waived her right to a probable cause hearing. A juvenile magistrate later entered an order
denying Mother’s pro se motion.
On October 18, 2017, Attorney Roney filed a motion to withdraw on the basis of a
fundamental disagreement as to how the case should be defended and Mother’s efforts in
filing pro se motions.5 In this motion, Attorney Roney stated that Mother “insists” that she
will not complete a psychological assessment requested by DCS. A juvenile magistrate
granted the motion to withdraw on October 25, 2017, and directed Mother to seek “another
appointed counsel if she qualifies.” On November 1, 2017, a second attorney, Kim
Gilleland, was appointed to represent Mother.
5
Mother filed a number of pro se motions in the dependency and neglect action throughout its
pendency. Some motions attacked the entirety of the dependency and neglect action because Mother had
not been served with the noncustodial petition for court-ordered services. Other motions objected to a third-
party supervising visitation despite the court order allowing a third-party to do so. None of the motions
were granted.
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A second permanency plan was created on November 29, 2017.6 This plan, like the
four that followed, contained requirements related to income, housing, drug and alcohol
use, and transportation. The second permanency plan also specifically required that Mother
obtain a psychological evaluation and follow recommendations. Mother was also required
to complete any necessary releases of information concerning her treatment and try to
obtain required services through her insurance. Mother signed this plan at the time that it
was created.7 A Criteria and Procedures for Termination of Parental Rights was also
included with the second permanency plan, but the document indicates that Mother refused
to sign the document.8 The trial court’s later order ratifying this plan, however, specifically
found that Mother was provided a copy of the Criteria.
Funding for the psychological assessment was approved in October 2017; however,
Mother was initially reluctant to participate. According to family services worker
Alexandra Brislin, Mother claimed that because DCS paid for the assessment, they “were
paying for the responses [they] wanted.” Mother also claimed to Ms. Brislin that she had
the credentials to diagnose herself and that she had already completed an assessment;
Mother did not, however, sign any releases or provide records to substantiate that claim.
Despite her reluctance, Mother also began the psychological assessment with
Licensed Psychologist Janie Berryman in December 2017; a report on the assessment was
completed March 13, 2018. Mother’s intelligence functioning was reported as average, but
Dr. Berryman opined that Mother may be suffering from an adjustment disorder “with
mixed emotional features.” The report, however, ruled out “Personality Disorder NOS”
and an anxiety disorder. Overall, however, Dr. Berryman opined that “[t]he test results
were defensive and not considered valid making it difficult to diagnosis for specific
treatment.” Dr. Berryman therefore recommended that Mother complete anger
management, parenting classes, and individual therapy, and that supervised visitation
continue until there was a period of consistent positive interactions with the child. Mother
did complete both anger management and parenting classes in February 2018 and April
2018, respectively.
By and through appointed counsel, Mother entered into an agreed order with DCS
on January 19, 2018, to have a minimum of four hours of supervised visitation with the
child supervised by Omni Vision or another person approved by DCS.
On August 13, 2018, an agreed order was entered finding the child dependent and
neglected. Although the order stated that Mother’s superior parental rights were reinstated,
it was agreed that the child would remain in DCS custody due to improper control and that
6
The first plan was created while Mother was on the run with the child.
7
Mother also signed some of the plans that followed.
8
Later permanency plans also indicated that Mother refused to sign the Criteria. The May 2017
permanency plan has a handwritten note that the Criteria was mailed to Mother.
-5-
Mother would participate in an in-depth psychological assessment and individual
counseling on a consistent basis. On November 2, 2018, Mother’s second appointed
attorney filed a motion to withdraw, citing Mother’s increased frustration with the
representation. A juvenile magistrate entered an order allowing the withdrawal on January
8, 2019. It appears that no additional counsel was appointed to represent Mother in the
dependency and neglect proceeding.
On July 30, 2019, DCS filed a notice with the trial court that it had temporarily
suspended Mother’s visitation due to her behavior. DCS asked the juvenile court to find
that its action was appropriate and to order that the suspension remain in effect until Mother
completed the second psychological assessment. A hearing was held on this motion on
September 5, 2019, before a juvenile magistrate. Mother appeared pro se at the hearing.
After hearing the testimony from the Omni supervisor, Megan Bowden, the juvenile
magistrate found that it was in the child’s best interest for visitation to be suspended until
the parties agreed or a motion was filed for visitation to resume. The juvenile magistrate
did not, however, accept the characterization that Mother “has 5 different identities”; but
the magistrate concluded that Mother experiences “grandiose belief or ideas of degrees,
doctorates, competencies and professions” without any evidence in support and is unable
to focus on visiting with the child in a manner that is in the child’s best interest. Nothing
in the record on appeal indicates that Mother appealed any of the orders entered in the
dependency and neglect proceeding, including the order suspending her visitation that was
entered when Mother was not represented by counsel.
In the meantime, on July 19, 2019, DCS filed a petition to terminate Mother’s
parental rights on grounds of abandonment by failure to visit, failure to support, and failure
to establish a suitable home, substantial noncompliance with permanency plans, failure to
manifest a willingness and ability to personally assume custody, and persistent conditions.9
Although the petition was also filed in the Rutherford County Juvenile Court, it was filed
under a different docket number, and is a separate case, from the dependency and neglect
action. A summons in the record indicates that Mother was personally served with the
termination petition on July 19, 2019, in the juvenile court lobby.
DCS, the guardian ad litem for the child, and Mother appeared before a juvenile
magistrate for a first appearance on the petition on September 5, 2019. At that time, the
juvenile magistrate explained Mother’s right to request court appointed counsel. Mother,
however, stated that she wanted to represent herself or hire private counsel. As a result,
Mother and the juvenile magistrate signed a one-page document in which Mother waived
her right to appointed counsel. The juvenile magistrate later entered a written order on
September 17, 2019, noting that Mother had waived her right to appointed counsel
9
The petition also alleged grounds to terminate the parental rights of the child’s biological father.
The trial court terminated the father’s rights in a separate order. He has not appealed, and therefore his
rights are not at issue in this appeal.
-6-
following an explanation of that right and the responsibilities that Mother would assume.
The termination trial as to Mother began on June 8, 2020 and concluded on June 22,
10
2020. At the start of trial, Mother requested that the trial be continued to allow her to
obtain an attorney. The trial court denied that request, citing Mother’s waiver and her
failure to make that request in the eight months that the petition had been pending. DCS
called a variety of DCS employees who had worked with Mother since the start of the case.
Mother raised a multitude of objections, most of which were denied by the trial court as
not being proper. Mother’s objections often related to her contention that the case was void
because she had not been served with the non-custodial services petition or because DCS
had not complied with the mental health provision in Title 33 of the Tennessee Code.11
DCS presented a variety of witnesses, including Ms. Sanchez, Ms. Potter, Ms.
Brislin, other DCS workers who took over the case as the years progressed, Ms. Bowden,
and the child’s foster mother. At trial, there was generally no dispute that Mother had
sufficient income and proper housing for the child. Instead, the issues generally concerned
Mother’s mental health struggles and her refusal to participate in services for that purpose,
and Mother’s conduct during visitation. The proof demonstrated that six permanency plans
were created in this case, on May 15, 2017; November 29, 2017; February 22, 2018;
January 30, 2019; July 17, 2019; and January 7, 2020. Each permanency plan was ratified
by the juvenile court. The permanency plans contained requirements that Mother (1)
maintain safe and stable housing and provide proof of same to DCS; (2) obtain required
services through her insurance or inform DCS of the termination of her insurance; (3)
obtain and maintain stable employment and provide proof to DCS; (4) provide DCS with
updated contact information as necessary; (5) present herself to DCS and to the trial court;
(6) complete a psychological evaluation and follow all recommendations; (7) allow DCS
to complete home visits; (8) sign a release of information form allowing DCS to obtain
records from her physicians and service providers; (9) develop a child care and
transportation plan; (10) submit to and pass drug screens; and (11) complete an alcohol and
drug assessment and follow recommendations. The plans were updated after Mother
completed the first mental health assessment and agreed to take part in a second assessment
to reflect that the second assessment and following the recommendations were among
Mother’s responsibilities.
DCS assisted Mother by setting up counseling with Bowdoin Recovery Services,
LLC. During the more than three years that this case was pending, Mother completed three
individual therapy sessions from April 18, 2018, to May 9, 2018. The therapist found that
Mother “displayed in the counseling session, exaggerated distorted description about
herself and delusional thought patterns. It is very difficult to get her to focus on treatment
and planning with the goal of regaining custody.” As a result, Mother’s therapist
10
The termination of Father’s parental rights occurred following a separate trial in August 2020.
11
This issue is discussed in detail, infra.
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recommended a more in-depth mental health evaluation “to assess for mental health
medication and to assist in the treatment planning process.” Thereafter, it appears that
Mother refused to contact Bowdoin. Mother’s DCS workers testified that Mother provided
them with no documentation to reflect that she had received any additional counseling.
Indeed, Mother’s refusal to sign releases of information as required by the permanency
plans was a consistent issue in this case; Mother either refused to sign the forms or revoked
the form that she did sign. Although Mother was told that DCS would pay for the
assessment if she provided proof that her own insurance would not cover the cost, she never
completed the second assessment.
Ms. Brislin supervised visitation until November 2017, when Omni took over.12 As
discussed in more detail, infra, Mother was fairly consistent in the frequency of her visits,
but her conduct was inconsistent. While in some visits Mother was appropriate, Mother’s
conduct was highly inappropriate in others. In one early visit, Mother intentionally startled
and made loud noises in front of the child so that he would not be a “scaredy-cat” even
though she had been informed that the child was suffering from an ear infection. The child
was less than one-year old at the time.
Even during the later visits, Mother was often unable to display parenting skills and
knowledge. Sometimes, Mother spent more time complaining about the case than
interacting with her child. Other times she yelled at or became angry with the child when
he did not meet her standards.13 Mother’s aggression also took the form of rubbing the
child’s face with the food he refused to eat, holding the child down on the potty when he
had a bowel movement in his diaper, “bonking” her head gently, but repeatedly against the
child’s even though he expressed that he did not like it, and getting into the child’s face to
scold him and threaten to spank him when he did not follow her directions. In yet other
times, she refused to engage with the child, claiming that adults did not play with toys, or
spent the visitation time on her phone. The child at times called both Mother and Ms.
Bowden “mommy.” Both directed the child not to call them that, with Mother telling the
child to call her by her first name.14 At the end of the visits, the child was often happy to
see the DCS worker who transported the child to the visits and had no difficulty leaving
Mother; instead, the child often disengaged from Mother during the visits when she was
too angry or aggressive toward him. Some of the visits ended early due to Mother’s
behavior.
Mother’s erratic behavior was often on full display during the visits. Mother often
12
The delay in using Omni related to Mother’s refusal to sign necessary releases.
13
Examples are where the child did not complete a puzzle, could not reach the sink to help her
wash dishes, could not pull up his own pants or diaper, did not respond to Mother’s statements that they
should “bond,” could not put his own pants or shoes on, and had a bathroom accident. At the time that all
of these events occurred, the child was little over two years old.
14
During a later visit, however, Mother continuously asked the child if he “love[d] Mommy” and
wanted to “bond with Mommy.”
-8-
spoke of her various degrees and credentials, ranging from being a nurse to a doctor to a
psychologist to owning a successful security company that worked with celebrities; Mother
never provided any documentation to support those claims. Despite claiming that she had
a chemistry degree, Mother had to be shown how to make formula for the child. Mother
continued her claims of degrees and credentials at various visitations throughout the
pendency of the case. Often, Mother’s mood vacillated from calm and appropriate to angry
during the visits. At one visit in October 2018, Mother arrived acting “manic” and
attempted to extort DCS into allowing her to leave with the child with the promise that she
would provide them with the results of her purported second psychological evaluation.15
Mother referred to this deal as an “even trade.” When DCS refused, Mother became
enraged, and Mother was eventually escorted out by non-emergency police officers.
Mother chose not to visit with the child in November and December 2018 after this
incident.
In the Spring of 2019, Mother’s eight hours of supervised therapeutic visitation were
limited to four hours due to Mother’s conduct. A court appointed special advocate was also
brought in to provide additional observation of the visitation. But Mother’s conduct during
visitation did not improve in 2019. Rather, nearly every single visit involved some erratic,
aggressive, or indifferent behavior by Mother. For example, at the June 28, 2019 visit,
Mother forced the child to kiss her even after he said no, Mother attempted to force the
child to remain in a chair, and Mother informed the then two-year-old child not to say “yes,
ma’am” or “no, ma’am” because those terms were associated with slavery. According to
Ms. Bowden, Mother then “pulled out her phone and read[] graphic, disturbing details” to
the child that were not appropriate given the child’s age. When Ms. Bowden asked Mother
to stop, Mother became so agitated that Ms. Bowden was forced to end the visit early, as
the child was visibly scared of Mother.
Mother’s last visit with the child occurred on July 25, 2019, after which DCS
determined that visitation was no longer in the child’s best interest. In a later order
suspending the visits, the trial court characterized Mother’s visitation as follows:
[T]he last visit on July 25, 2019 deteriorated to a greater extent than
prior visits wherein an original statement by the Child while in a state of play
was interpreted by [Mother] as a statement of harm, when it was clear from
the state of play and from the testimony that the Child said “Batman and
another superhero were fighting and his imaginary character got hurt” and
the Mother interrupted it as “Badman” and asked the Child where did the
“Badman” hurt you; further the Mother asked where did the “Badman” hurt
you and the Child said on his head referring to “Batman”, but of particular
note is that there was no visible injuries or bruises of any type on the Child’s
15
Mother arrived to the visitation with a raincoat for the child, apparently expecting to leave with
him.
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head to support the Mother’s accusations; further the Court notes the Child
is approximately 2 years of age and is therefore very susceptible to be lead
down the path that Mother was attempting to lead him on by her efforts to
try and convince him that his word “Batman” was actually the word
“Badman”; subsequently [Mother] called 911 and response was made to the
DCS office by law enforcement, EMTs, fire and medical transport;
[O]n [] July 25, 2019, upon law enforcement arriving at the DCS
office the Mother’s interactions with the Police appear to be much like the
interactions the Court has had with [Mother] as evidenced by the testimony
by Ms. Bowden as to the interactions between the Mother and Law
Enforcement on that day, specifically at times the Mother comes across as
incoherent, sort of rambling, interactions wherein the Mother interjects and
represents that she has multiple degrees or expertise that she believes or feels
she holds that she believes give her credence to make decisions to override
or overrule the concerns that everyone has about a certain situation based
upon her asserted level of expertise in a particular field that is related to the
situation that is under discussion at that time; . . . .
The child’s foster mother, Ursula B. (“Foster Mother”) testified that the child came
into her custody in August 2017; he has remained continuously with her family since that
time, a period of nearly three years at the time of trial. The child refers to Foster Mother
and her Husband as “mommy” and “daddy.” Foster Mother testified that the child is
thriving in her care, that the child is bonded to her other child, and that she wishes to adopt
the child should he become available.
Mother testified on her own behalf.16 Mother’s testimony generally focused on the
circumstances surrounding DCS’s initial involvement with the case. Mother claimed that
the DCS workers trespassed in her apartment. Mother further asserted that she took good
care of her son, and that she had done nothing wrong, as she “take[s] medicine to the police.
I’m around the police all day long. So I know good and well that I don’t have no warrants
for the police to be chasing me around.” Mother also took issue with the petition for court-
ordered services, as it was dismissed. Mother also claimed for the first time that she had
not been served with the dependency and neglect petition. Finally, Mother argued that the
proceeding was void because DCS did not present a “certification of need for mental health
services as required by Title 3,—Chapter 3, 4, 5, and 6.”
On August 7, 2020, the trial court entered a fifty-seven-page order terminating
Mother’s parental rights. Therein, the trial court first addressed Mother’s request for
16
Mother often interjected comments during her objections to DCS’s proof. For example, Mother
referred to DCS’s actions as “terrorism” and told a DCS witness that she could “burn in hell.” The trial
court admonished Mother on multiple occasions not to commit these outbursts and not to attempt to testify
during DCS’s case-in-chief.
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counsel, ruling that she had waived her right to appointed counsel months prior to trial.
The trial court then noted that DCS had elected to “drop” its allegation of failure to support.
But the trial court found that DCS had presented clear and convincing evidence of all other
grounds for termination alleged in the petition and that termination was in the child’s best
interest.
An order was later entered terminating the parental rights of the child’s biological
father. Mother thereafter timely appealed to this Court. On September 9, 2020, Mother
filed a motion to proceed as indigent in this appeal. On September 10, 2020, we granted
Mother’s motion and remanded the matter to the trial court for the sole purpose of
appointing counsel to represent Mother in this appeal. On October 5, 2020, the trial court
appointed Mother’s current counsel to represent her in this appeal.
II. ISSUES PRESENTED
Mother raises the following issues for review, which are taken from her appellate
brief:
1. Whether DCS and the juvenile court violated Mother’s rights by
attempting to force her into unwanted medical treatment.
2. Whether the trial court erred in denying Mother’s request for counsel.
3. Whether the trial court properly determined that grounds existed to
terminate Mother’s parental rights.
4. Whether the trial court properly determined that termination of Mother’s
parental rights was in the child’s best interest.
III. STANDARD OF REVIEW
Parental rights are “among the oldest of the judicially recognized fundamental
liberty interests protected by the Due Process Clauses of the federal and state
constitutions.” In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016) (collecting cases).
Therefore, “parents are constitutionally entitled to fundamentally fair procedures in
parental termination proceedings.” Id. at 511. These procedures include “a heightened
standard of proof—clear and convincing evidence.” Id. at 522 (citations and quotations
omitted). “Clear and convincing evidence is evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.” In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (quotation marks and citation omitted).
In Tennessee, termination of parental rights is governed by statute, which identifies
“‘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., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting
In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL
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1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g))).
Thus, a party seeking to terminate a parent’s rights must prove (1) the existence of at least
one of the statutory grounds in section 36-1-113(g), and (2) that termination is in the child’s
best interest. See In re Valentine, 79 S.W.3d at 546. “Considering the fundamental nature
of a parent’s rights, and the serious consequences that stem from termination of those
rights, a higher standard of proof is required in determining termination cases.” In re
Addalyne S., 556 S.W.3d 774, 782 (Tenn. Ct. App. 2018). The clear and convincing
evidence standard applicable here is “more exacting than the ‘preponderance of the
evidence’ standard, although it does not demand the certainty required by the ‘beyond a
reasonable doubt’ standard. To be clear and convincing, the evidence must eliminate any
substantial doubt and produce in the fact-finder's mind a firm conviction as to the truth.”
In re S.R.C., 156 S.W.3d 26, 29 (Tenn. Ct. App. 2004) (internal citation omitted).
In termination cases, appellate courts review a trial court’s factual findings de novo
and accord these findings a presumption of correctness unless the evidence preponderates
otherwise. See Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 523–24
(citations omitted). “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.” Id. at 524 (citation 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 M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v.
England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn.1999)). “Further,
‘[o]n an issue which hinges on the credibility of witnesses, the trial court will not be
reversed unless there is found in the record clear, concrete, and convincing evidence other
than the oral testimony of witnesses which contradict the trial court’s findings.’” Id.(quoting Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn.Ct.App.1990)).
IV. DISCUSSION
A. Counsel
We begin with Mother’s argument concerning the appointment of counsel. As this
Court recently explained,
Although the Due Process Clause of the United States Constitution does not
“require[] the appointment of counsel in every parental termination
proceeding[,]” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452
U.S. 18, 31, 101 S. Ct. 2153, 68 L.Ed.2d 640 (1981), “Tennessee statutorily
provides the right to appointed counsel for indigent parents in every parental
termination proceeding,” In re Carrington H., 483 S.W.3d at 527; see also
Tenn. Code Ann. § 37-1-126(a)(2)(B)(ii) (“A parent is entitled to
representation by legal counsel at all stages of any proceeding under this part
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in proceedings involving . . . [t]ermination of parental rights pursuant to § 36-
1-113.”).
In re Tavarius M., No. M2020-00071-COA-R3-PT, 2020 WL 7479411, at *3 (Tenn. Ct.
App. Dec. 18, 2020). The right to counsel, however, is not absolute, and may be waived by
the parent. Specifically, Rule 13 of the Tennessee Supreme Court Rules provides that
indigent parties are entitled to the appointment of counsel in “[p]roceedings to terminate
parental rights.” Tenn. Sup. Ct. R. 13(d)(2)(D). Rule 13 further provides, however, that
“[u]pon finding a party indigent, the court shall enter an order appointing counsel unless
the indigent party rejects the offer of appointment of counsel with an understanding of the
legal consequences of the rejection.” Tenn. Sup. Ct. R. 13(e)(3). “If an indigent party
refuses to accept the services of appointed counsel, such refusal shall be in writing and
shall be signed by the indigent party in the presence of the court.” Tenn. Sup. Ct. R.
13(f)(1). The rule further provides as follows:
The court shall acknowledge thereon the signature of the indigent party and
make the written refusal a part of the record in the case. In addition, the court
shall satisfy all other applicable constitutional and procedural requirements
relating to waiver of the right to counsel. The indigent party may act pro se
without the assistance or presence of counsel only after the court has fulfilled
all lawful obligations relating to waiver of the right to counsel.
Tenn. Sup. Ct. R. 13(f)(2).
Much of the caselaw concerning the waiver of the right to appointed counsel in the
context of a termination of parental rights trial concerns whether the parent implicitly
waived the right through his or her conduct. See, e.g., In re A.P., No. M2017-00289-COA-
R3-PT, 2019 WL 1422927, at *3 (internal citation removed) (quoting In re Jamie B., No.
M2016-01589-COA-R3-PT, 2017 WL 2829855, at *4 (Tenn. Ct. App. June 30, 2017))
(Tenn. Ct. App. Mar. 29, 2019) (“While a parent’s right to appointed counsel in a
termination of parental rights proceeding is well-established in Tennessee, this Court has
also acknowledged that where a parent fails to adequately cooperate or communicate with
their counsel before trial, the client may have impliedly waived the right to appointed
counsel by his or her conduct.”); In re Elijah B., No. E2010-00387-COA-R3-PT, 2010
WL 5549229, at *5 (Tenn. Ct. App. Dec. 29, 2010) (“The issue becomes whether Father
effectively waived his right to counsel by failing to communicate with Ms. Luther in the
months leading up to the hearing and then leaving her to appear without him.”); In re M.E.,
No. M2003-00859-COA-R3-PT, 2004 WL 1838179, at *12 (Tenn. Ct. App. Aug. 16,
2004) (“Thus, we must determine whether Father’s conduct constituted such a waiver.”).
That is not the situation presented in this case.
Instead, this case involves an express waiver by Mother of her right to appointed
counsel despite her indigency. In particular, the record indicates that the parties appeared
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before a juvenile magistrate on September 5, 2019 for a first appearance in the termination
proceeding. On that date, Mother and the presiding magistrate, Magistrate Adam Dodd,
signed a document entitled “Waiver of Right to Have Appointed Counsel (Termination of
Parental Rights).” The document states as follows:
The undersigned represent to the court, under oath, as follows:
I have been fully informed by the court of the nature of the Petition (Petitioner
seeks to terminate forever parental rights to my child/children pursuant to
T.C.A. §[]36-1113) and the relief sought by Petitioner(s) (to make my
child/children available for adoption) in this case; AND
The legal consequences thereof (loss of my parental rights) should said relief
be granted by the court; AND
The right to appointment of counsel (an attorney) upon my representation to
the court, that I am unable to employ counsel, the reasons therefore, and the
court concurring with my assertion by finding me indigent.
All of which I fully understand.
Having so acknowledged, I, the undersigned, now state to the court that I do
not desire the appointment of counsel, that I expressly waive the same and
that I desire to appear in all respects in this case on my own behalf, unless and
until such time as counsel is employed by me, all [of] which I understand I
have a right to do. Further, by signing below, I appear before the court today
with full knowledge of the consequences of my decision and sign this Waiver
of Appointed Counsel freely and voluntarily believing it to be in my best
interest.
Magistrate Dodd’s September 17, 2019 order related to the September 5 appearance
also contains findings relative to this issue:
Mother was personally served with the State’s Petition on July 19, 2019.
Mother has appeared today and the Court, on the record, explained to the
Mother her right to request court appointed counsel and the process for
requesting the same. Mother stated under oath that she is competent to
understand today’s proceedings. The Court, in great detail, went over the
Mother’s options regarding representation in that she could request court
appointed counsel, represent herself or hire private counsel. Upon being
informed of the same the Mother informed the Court of her desire and intent
to retain her own attorney or to represent herself as a Pro Se Respondent. The
Court explained to the Mother that if she did not retain counsel she would
need to be prepared and ready to go on the trial dates set herein, further the
Court directed the Mother that if she does retain counsel that her counsel
would need to be prepared to go forward on the trial dates set herein and
further that if the dates set herein did not work with her counsel’s calendar
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that such would not be a basis for continuing the trial dates set herein.
The order set a trial date eight months in the future, on June 8, 2020.
Nothing in the record indicates that Mother ever again raised the question of
appointed counsel until the morning of June 8, 2020, when she sought a continuance
because she “need[ed] a lawyer” due to the case being “very complex” and her “mental
state.” The trial court responded as follows:
No, ma’am. We have given you every opportunity to get attorneys, have
appointed attorneys, retained attorneys, get appointed attorneys, and I am
going to go ahead and find the record speaks for itself that you’ve had every
opportunity if you wish to retain an attorney yourself to do so. . . .
. . . . So I’m going to note that this case has been set for eight months. You’ve
had that time to come in and ask the Court for an appointed attorney and you
have had plenty of time to retain an attorney. So I’m also going to deny that
motion to appoint you an attorney, and I will note your objection to that.
The trial court noted, however, that Mother was permitted to file an oral motion that Mother
was unable to proceed on the morning of trial due to her mental state. But the trial court
explained that Mother would “have to have the proof” to support such an argument. Mother
responded that “I’m not a lawyer, and I need a lawyer.”
The trial court also addressed this issue in its order terminating Mother’s parental
rights. After reiterating Magistrate Dodd’s findings from the September 5, 2019 hearing,
the trial court stated that
the Mother executed a waiver of her right to have or request appointed counsel
and the same has been admitted as Exhibit 70 in this matter. Mother
throughout the underlying Dependency and Neglect action had a total of 3
different Attorneys appointed to represent her and each Attorney had to
eventually withdraw due to the actions of the Mother. Therefore the Court
believes the Mother raised the issue of wanting an appointed Attorney on the
first day of trial, June 8, 2020, for the sole purpose of delaying this matter
therefore the Mother’s oral motion for counsel is denied and the Mother will
proceed as a Pro Se Respondent. Further based upon the Mother’s statements
to the Court on September 5, 2019, as previously noted, the Mother informed
the Court of her intent to retain private counsel which tells the Court the
Mother had the financial means to do so but has elected to proceed without
counsel.
On appeal, Mother asserts that the trial court erred in denying her request for
counsel. It is somewhat difficult to discern the exact basis for Mother’s objection to the
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trial proceeding. Specifically, Mother asked the trial court to continue the case to allow her
to obtain counsel, pointing to her mental state. This request does not indicate if Mother
wanted to revoke her waiver of appointed counsel or if Mother was merely seeking a
continuance to retain her own counsel. Moreover, Mother did not argue on the morning of
trial that she ever lacked the competency to exercise a waiver of her right to counsel, only
that she was presently incompetent to represent herself. See generally State v. Hester, 324
S.W.3d 1, 29–31 (Tenn. 2010) (discussing the difference between these two questions, as
detailed infra). On appeal, however, Mother’s argument clearly concerns whether the
initial waiver was effective on procedural and substantive grounds, as she does not address
in any manner the trial court’s decision to deny Mother’s request for a continuance.
Although we have serious doubts that this issue was properly raised in the trial court, we
will nevertheless address it on appeal. See Tenn. R. App. P. 13(b) (“Review generally will
extend only to those issues presented for review. The appellate court . . . may in its
discretion consider other issues in order, among other reasons: (1) to prevent needless
litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to
the judicial process.”).
Mother cites no law beyond Rule 13 to support her argument that the magistrate did
not do all that was required of him to effectuate a waiver of counsel. Specifically, she cites
no specific “applicable constitutional or procedural requirement” that was not met in this
case. Generally, arguments made in no more than a skeletal fashion are waived in this
Court. See Sneed v. Bd. of Pro. Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010)
(“It is not the role of the courts, trial or appellate, to research or construct a litigant's case
or arguments for him or her, and where a party fails to develop an argument in support of
his or her contention or merely constructs a skeletal argument, the issue is waived.”).
We do note, however, that the Tennessee Rules of Criminal Procedure contain more
explicit requirements for a waiver of counsel to be effective. See generally Tenn. R. Civ.
P. 44. These include the duty of the trial court to “determine whether there has been a
competent and intelligent waiver” of the right to appointed counsel. Tenn. R. Crim. P.
44(b)(1)(B). Although we have applied this rule where counsel was constitutionally
mandated in the criminal contempt context, see Miller v. Kelk, No. E2003-02180-COA-
R3-JV, 2005 WL 1669849, at *9 (Tenn. Ct. App. July 18, 2005) (citing Tenn. R. Crim. P.
44) (“[I[f Mother was indigent and faced with being held in criminal contempt, then she
would have been entitled to court appointed counsel.”), we have not applied this rule in the
termination of parental rights context. Indeed, this Court has previously held that certain
law applicable in criminal cases that provides for “a far stricter standard” regarding the
forfeiture of appointed counsel through misconduct is not applicable in matters involving
termination of parental rights, which matter is civil in nature and involves a statutory right
to counsel, rather than a constitutional mandate. In re A.P., No. M2017-00289-COA-R3-
PT, 2019 WL 1422927, at *3 n.2 (Tenn. Ct. App. Mar. 29, 2019). Thus, we have previously
recognized that the question of waiver of counsel in a termination matter is not identical to
the question presented in a criminal matter.
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Still, DCS appears to concede in its brief that the waiver of counsel in this case
“must be ‘voluntary knowing, and intelligent’ and usually ‘occurs only after a trial judge
advises a defendant of the dangers and disadvantages of self-representation and determines
that the defendant knows what he is doing and his choice is made with open eyes.’” For
this proposition, however, DCS only cites law from the criminal context. See State v.
Maxwell, No. M2009-00467-CCA-R3-CD, 2011 WL 915670, at *3 (Tenn. Crim. App.
Mar. 16, 2011) (“[W]aiver of the right to counsel must be voluntary, knowing, and
intelligent. In addition, waiver usually occurs only after the trial judge advises a defendant
of the dangers and disadvantages of self-representation and determines that the defendant
‘knows what he is doing and his choice is made with eyes open.”) (internal citations and
quotation marks omitted).
In a similar vein, Mother argues on appeal that there is no evidence in the record to
support Magistrate Dodd’s finding that Mother understood the consequences of the
rejection or that her decision to waive counsel was “free and voluntary.” Mother further
argues that the signature on the waiver form was “not authenticated on the record” because
no witness was asked about this document at the termination trial. Finally, Mother argues
that this case was “founded upon the allegation that Mother has some mental defect or lack
of capacity to care for the child” and that the waiver cannot be effective without “an attempt
to determine whether Mother’s alleged mental deficit impairs her ability to understand the
grave decision of rejecting appointed counsel.”
Respectfully, we disagree. Here, the record contains a waiver of the right to
appointed counsel that bears Mother’s signature. Mother presented no evidence and no
argument at trial that the signature on this waiver was not her own or that she did not
voluntarily sign this document. Indeed, Mother’s brief concedes that this document
“appears to bear Mother’s signature.” This document specifically provides that Mother
signed the waiver “with full knowledge of the consequences of my decision[.]” This
document therefore meets the requirement under Rule 13(f) for a signed waiver of the right
to appointed counsel.
We also disagree with Mother’s assertion that the lack of evidence in the record as
to Mother’s understanding and competence is fatal to this case. As explained by the
Tennessee Supreme Court in the context of a criminal prosecution:
The determination of whether a defendant has exercised his or her right
of self-representation and has concurrently waived his or her right to counsel
is a mixed question of law and fact. United States v. Kimball, 291 F.3d 726,
730 (11th Cir. 2002); United States v. Robinson, 913 F.2d 712, 714 (9th Cir.
1990); Spencer v. Ault, 941 F. Supp. 832, 851 (N.D. Iowa 1996); State v.
Jordan, 118 Conn. App. 628, 984 A.2d 1160, 1166 (2009); 1 Kevin F.
O’Malley et al., Federal Jury Practice & Instructions § 5:6 (6th ed. 2009).
- 17 -
Tennessee appellate courts review “mixed questions of law and fact de novo,
accompanied by a presumption that the trial court’s findings of fact are
correct.” State v. Holmes, 302 S.W.3d 831, 837 (Tenn. 2010).
Hester, 324 S.W.3d at 29–30. Moreover, “‘the competence that is required of a defendant
seeking to waive his right to counsel is the competence to waive the right, not the
competence to represent himself.’” Id. at 31. (quoting Godinez v. Moran, 509 U.S. 389,
399, 113 S. Ct. 2680, 125 L.Ed.2d 321 (1993)). “The United States Supreme Court has
declared that “a criminal defendant’s ability to represent himself [or herself] has no bearing
upon his [or her] competence to choose self-representation.” Godinez, 509 U.S. at 400, 113
S. Ct. 2680. Thus, a litigant’s “lack of capacity to present an effective defense is not a basis
for denying the exercise of the right of self-representation.” Hester, 324 S.W.3d at 32(citing State v. Herrod, 754 S.W.2d 627, 630 (Tenn. Crim. App. 1988)). As our supreme
court has explained:
A trial court may properly conclude that a defendant is likely to be
incompetent and ineffective as an advocate in his or her own defense and that
the defendant lacks important knowledge about substantive and procedural
law; however, these conclusions, without more, do not render the defendant
incompetent or unable to waive the right to counsel. Deficiencies in legal
skills and legal knowledge do not deprive a person of his or her right to self-
representation.
Id. at 32.
In this case, Magistrate Dodd made an explicit finding that he explained Mother’s
options regarding appointed counsel in “great detail.” The magistrate’s order further stated
that he explained the consequences of Mother’s decision, in that she would need to be
prepared to go to trial on the date set by the trial court. Magistrate Dodd further found that
Mother was questioned under oath about her competency “to understand today’s
proceedings.” As a result of Mother’s testimony under oath, Magistrate Dodd ruled that
Mother would be allowed to represent herself going forward.
To the extent that Mother now takes issue with our inability to evaluate these
findings due to the lack of a record as to Mother’s testimony on September 5, 2019, it is
Mother’s own failure to provide this Court with a record that results in the lack of evidence
to evaluate. Here, Mother has filed no transcript or statement of the evidence from the
September 5, 2019 hearing. “When no transcript or statement of the evidence is included
in the record on appeal, we conclusively presume that the findings of fact made by the trial
court are supported by the evidence and are correct.” In re M.L.D., 182 S.W.3d 890, 894
(Tenn. Ct. App. 2005).
Mother cites no law to suggest that this presumption is inapplicable in this context.
- 18 -
Indeed, our research reveals that it is. Specifically, in State v. Hufford, No. E2012-02162-
CCA-R3-CD, 2014 WL 4403831 (Tenn. Crim. App. Sept. 8, 2014), the defendant argued
on appeal that the trial court did not “protect his right to counsel during the proceedings.”
Id. at *7. The State argued that the issue was waived because the defendant failed to provide
a transcript from the hearing in which the issue of counsel was decided. Id. We agreed with
the State:
Appellant had the benefit of appointed counsel prior to his first trial. He filed
a motion to dismiss his attorney and proceed pro se. He executed an
appropriate “Waiver of Counsel” form, which was included in the record.
However, appellant did not include a transcript of the hearing that contained
a colloquy with the trial court. It is appellant’s responsibility to prepare a
record that conveys a fair, accurate, and complete account of what transpired
in the trial court with respect to the issues forming the basis of the appeal.
Tenn. R. App. P. 24(b). We will not presume error from a silent record. We
must conclude that appellant’s first waiver of counsel was not in error.
Hufford, 2014 WL 4403831, at *7. Other courts have come to similar conclusions under
somewhat similar circumstances. Cf. State v. Jones, No. M2015-00720-CCA-R3-CD,
2016 WL 3621513, at *9 (Tenn. Crim. App. June 29, 2016) (holding that the defendant
could not show reversible error in the trial court’s denial of his purported request to proceed
pro se because “[w]ithout the transcript of the March 1, 2013 hearing, we
must presume that the trial court was correct when it ruled that Defendant’s request, made
three days before the scheduled trial date, was merely a delay tactic”); see also Freels v.
Jones, No. E2002-00895-COA-R3-CV, 2003 WL 104621, at *1 (Tenn. Ct. App. Jan. 13,
2003) (citing Turner v. Turner, 739 S.W.2d 779 (Tenn. Ct. App. 1986)) (holding that the
defendant could not show a reversible error in the failure to have a jury trial because the
trial court “found that defendant had waived her right to a jury trial, and absent
any transcript of evidence to show otherwise, this Court must presume that the evidence
would support the [t]rial [c]ourt’s ruling”). Thus, even in the criminal law context, with its
heightened procedures, a party’s failure to present a proper record upon which this Court
can evaluate the trial court’s decision has proven fatal to his or her argument on appeal.
We certainly agree that Mother’s conduct at trial indicated that she lacked important
knowledge to be an effective legal advocate on her own behalf. And as we have found
infra, Mother’s mental health issues persist in a manner that persuades us that returning the
child to her would be unsafe. But as the Tennessee Supreme Court has made clear, those
conclusions do not necessarily render Mother incompetent to waive the right to counsel;
instead, those are distinct questions. Here, Magistrate Dodd was tasked with making the
determination as to whether Mother could and did waive her right to counsel. After hearing
Mother testify under oath and having Mother complete the required written waiver,
Magistrate Dodd found that Mother had effectively waived her right to appointed counsel.
The record on appeal contains neither a transcript nor a statement of the evidence from the
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September 5, 2017 hearing. We therefore must presume that the trial court’s implicit and
explicit findings that Mother was both competent to execute the waiver and did so
voluntarily are correct on appeal. And at trial, while Mother testified on her own behalf,
she did not present any testimony concerning her mental health diagnoses or anything
remotely relevant to the question of whether she could understand the consequences of her
waiver of appointed counsel that occurred in September 2017.17 While Mother’s ability to
parent due to her mental health issues is squarely at issue in this case, without some
evidence presented to show that Mother could not properly understand the waiver of her
right to counsel or did not do so voluntarily, we cannot disturb the ruling in the trial court.
The trial court therefore did not err in proceeding to hear the termination petition despite
Mother’s pro se status.
B. Grounds for Termination
I. Substantial Noncompliance with Permanency Plans
Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), a ground for
termination exists when “[t]here has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan pursuant to title 37,
chapter 2, part 4[.]” As discussed by this Court in In re M.J.B., 140 S.W.3d 643 (Tenn. Ct.
App. 2004):
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and
tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
113(g)(2), the Department must demonstrate first that the requirements of the
permanency plan are reasonable and related to remedying the conditions that
caused the child to be removed from the parent’s custody in the first place, In
re Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct.
App. 2003), and second that the parent’s noncompliance is substantial in light
of the degree of noncompliance and the importance of the particular
requirement that has not been met. In re Valentine, 79 S.W.3d at 548–49; In
re Z.J.S., 2003 WL 21266854, at *12. Trivial, minor, or technical deviations
from a permanency plan’s requirements will not be deemed to amount to
substantial noncompliance. In re Valentine, 79 S.W.3d at 548; Department
of Children’s Servs. v. C.L., No. M2001-02729-COA-R3-JV, 2003 WL
22037399, at *18 (Tenn. Ct. App. Aug. 29, 2003) (No Tenn. R. App. P. 11
application filed).
Id. at 656–57.
17
Indeed, the evidence presented by DCS indicates that Mother repeatedly refused to sign releases
that would have made Mother’s mental health records available to them.
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Six permanency plans were created following the removal of the child. The plans
generally required that Mother (1) maintain safe and stable housing and provide proof of
same to DCS; (2) obtain required services through her insurance or inform DCS of the
termination of her insurance; (3) obtain and maintain stable employment and provide proof
to DCS; (4) provide DCS with updated contact information as necessary; (5) present herself
to DCS and to the trial court; (6) complete a psychological evaluation and follow all
recommendations; (7) allow DCS to complete home visits; (8) sign a release of information
form allowing DCS to obtain records from her physicians and service providers; (9)
develop a child care and transportation plan; (10) submit to and pass drug screens; and (11)
complete an alcohol and drug assessment and follow recommendations. A fourth
permanency plan included a requirement that Mother complete an additional psychological
evaluation and follow recommendations, maintain a bond with the child, and demonstrate
appropriate parenting behaviors. Two additional permanency plans were created that
included these requirements.
We begin with the question of whether Mother’s responsibilities under the plans
were “reasonable and related to remedying the conditions that caused the child to be
removed from the parent’s custody in the first place[.]” In re M.J.B., 140 S.W.3d at 656.
Here the trial court found that the plans’ requirements were reasonable and related to the
reasons that necessitated removal both at the conclusion of the termination trial. The trial
court further found that Mother’s responsibilities were explained to her in detail. Mother
does not argue that the plans’ requirements were unreasonable or unrelated to the
conditions that led to the removal of the child. Instead, Mother raises as a separate issue
that DCS and the trial court violated Mother’s rights by attempting to force her into
unwanted medical treatment, citing Tennessee Code Annotated section 33-6-401. Section
33-6-401 provides as follows:
IF AND ONLY IF
(1) a person has a mental illness or serious emotional disturbance, AND
(2) the person poses an immediate substantial likelihood of serious harm
under § 33-6-501 because of the mental illness or serious emotional
disturbance,
THEN
(3) the person may be detained under § 33-6-402 to obtain examination for
certification of need for care and treatment.
Tennessee Code Annotated section 33-6-402 further provides as follows:
If an officer authorized to make arrests in the state, a licensed physician, a
psychologist authorized under § 33-6-427(a), or a professional designated by
the commissioner under § 33-6-427(b) has reason to believe that a person is
subject to detention under § 33-6-401, then the officer, physician,
- 21 -
psychologist, or designated professional may take the person into custody
without a civil order or warrant for immediate examination under § 33-6-404
for certification of need for care and treatment.
See also Tenn. Code Ann. § 33-6-404 (involving the situation where a person “is brought
to” a medical provider “for examination under this section” to determine “whether the
person is subject to admission to a hospital or treatment resource under § 33-6-403”); cf.
Tenn. Code Ann. § 33-6-403 (involving the question of whether a person “may be admitted
and detained by a hospital or treatment resource for emergency diagnosis, evaluation, and
treatment under this part”).
To the extent that this argument requires us to engage in statutory construction, we
follow the familiar rules applicable to that inquiry:
“The most basic principle of statutory construction is to ascertain and give
effect to the legislative intent without unduly restricting or expanding a
statute’s coverage beyond its intended scope.” Owens v. State, 908 S.W.2d
923, 926 (Tenn. 1995) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn.
1993)). “The text of the statute is of primary importance.” Mills v.
Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012). A statute should be read
naturally and reasonably, with the presumption that the legislature says what
it means and means what it says. See BellSouth Telecomms., Inc. v.
Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997).
In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015).
Our review of the text of the above statutes persuades us that they are simply
inapposite here. Section 33-6-401 clearly provides that only if its requirements are met can
an individual “be detained” under section 33-6-404. Likewise, section 33-6-404 speaks in
terms of taking an individual “into custody.” In determining the meaning of a statute, we
must determine the Legislature’s intent without “unduly . . .
expanding [the] statute’s coverage beyond its intended scope.” Limbaugh v. Coffee Med.
Ctr., 59 S.W.3d 73, 83 (Tenn. 2001). The statutes cited by Mother clearly involve a
situation wherein an individual is physically detained for purposes of providing treatment.
See Tenn. Code Ann. 33-6-401 (concerning whether an individual may “be detained”);
Tenn. Code Ann. 33-6-402 (concerning the situation where an individual is taken “into
custody” for treatment); Tenn. Code Ann. 33-6-404 (involving an examination to
determine whether to release an individual or if “the person is subject to admission”). In
this case, Mother was never taken into custody for the purposes of mental health treatment,
nor was the question of her admission to any facility ever at issue. Indeed, Mother concedes
in her appellate brief that “Mother was not physically coerced into psychological diagnosis
and treatment[.]” As such, this situation simply is not governed by the cited statutes.
Indeed, our research has indicated that none of the cited statutes have ever been cited in
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the context of a child protective action.
Mother argues, however, that DCS nevertheless sought to coerce Mother to obtain
mental health treatment by making it a condition to exercise her fundamental right to parent
her child. Moreover, Mother contends that these requirements were based on nothing more
than “allegation[s] of psychological problems.” As result, Mother argues that we should
hold that DCS cannot rely on grounds for termination that rely on Mother’s refusal to
participate in mental health treatment in the absence of compliance with Section 33-6-404.
Respectfully, we disagree.
DCS correctly points out in its brief that the State has a compelling interest in
protecting children from harm. See Davis-Kidd Booksellers, Inc. v. McWherter, 866
S.W.2d 520, 524 (Tenn. 1993) (quoting Sable Communications of California, Inc. v.
F.C.C., 492 U.S. 115, 126–27 109 S. Ct. 2829, 106 L.Ed.2d 93 (1989)) (“We have
recognized that there is a compelling interest in protecting the physical and psychological
well-being of minors.”). The right to parent children is therefore not absolute. See In re
S.M., 149 S.W.3d 632, 638–39 (Tenn. Ct. App. 2004) (“While this right is fundamental
and superior to the claims of other persons and the government, it is not absolute. It
continues without interruption only as long as a parent has not relinquished it, abandoned
it, or engaged in conduct requiring its limitation or termination.”). Consequently, the State
may interfere with a parent’s fundamental right when there is a risk of substantial harm to
a child. See Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993) (“In light of this right to
privacy, we believe that when no substantial harm threatens a child’s welfare, the state
lacks a sufficiently compelling justification for the infringement on the fundamental right
of parents to raise their children as they see fit.”).
The Tennessee Legislature has recognized that mental health issues may result in
substantial harm to a child, as a ground for termination exists when the parent’s present
mental condition renders the parent incompetent to adequately parent the child. See Tenn.
Code Ann. § 36-1-113(g)(8). And Tennessee courts have held that mental health issues can
justify interference in the parental-child relationship due to the substantial harm that it can
cause children. See, e.g., State v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990) (“The holding
of the Court of Appeals in this case—that ‘mental disability’ cannot be the basis of
termination of parental rights since the acts of the mentally disabled parent are not willful—
would nullify a significant part of the legislative plan for the welfare of dependent and
neglected children. An obvious result of the holding is to condemn a child, whose parents
are unfit to properly care for the child because of mental illness, to a life in serial foster
homes without any possibility of a stable, permanent home.”).
In this case, the trial court entered an order on May 5, 2017, finding that the child
was “subject to an immediate threat of harm” and placing the child in DCS custody. Later,
Mother chose to waive her right to the probable cause hearing. And finally, the juvenile
court entered an order, upon Mother’s own stipulation, adjudicating the child as dependent
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and neglected. Thus, it was a judicial finding of substantial harm, not merely an allegation,
that justified DCS’s interference with Mother’s fundamental parental rights. And based on
the removal of the child, DCS had both the right and the responsibility to create
permanency plans with action steps for Mother to complete in order to achieve the goals
of the plans. See generally Tenn. Code Ann. § 37-2-403 (governing the requirement that
DCS create a permanency plan within thirty days of foster care placement).
Moreover, the agreed order of disposition in the dependency and neglect action
provided that Mother “stipulate[d] and consent[ed] to the findings of fact and conclusions
of law contained herein.” One of those findings was that Mother would consistently
participate in counseling and complete an additional mental health assessment. Thus,
Mother, by and through her attorney, voluntarily agreed to complete these tasks. See
Memphis Bd. of Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn. Ct. App. 1989)
(citing Moody v. Moody, 681 S.W.2d 545 (Tenn. 1984)) (“While defendant may have a
grievance against her attorney, as to the other party to the suit she is bound by
the attorney’s knowledge and his actions in her behalf.”).
Finally, we note that Mother’s argument essentially attacks the findings made and
the requirements put in place in the dependency and neglect action. Nothing in the record,
however, indicates that Mother ever appealed any of the rulings from the dependency and
neglect matter, despite the fact that she was represented when the dependency and neglect
order was entered. Thus, the orders from the dependency and neglect action are final and
cannot now be attacked.18 See In re Jimmy B., No. E2015-02070-COA-R3-PT, 2016 WL
2859180, at *6 (Tenn. Ct. App. May 11, 2016) (declining to entertain father’s collateral
attack of the juvenile court’s dependency and neglect order in the termination of father’s
parental rights proceeding because they are “separate proceeding[s]”). Thus, the only
question in this case involved whether the permanency plans’ requirements were
reasonable and related to the issues that caused the child to come into custody; if so, DCS
is entitled to rely on Mother’s substantial noncompliance therewith as a ground for
termination of her parental rights.
We also cannot conclude that it was unreasonable for DCS to insist in its
permanency plans that Mother complete tasks related to her mental health, as those tasks
clearly appear related to the issues that led to DCS involvement in this case. Indeed, the
proof showed that DCS first became involved in this case when Mother reported to the
hospital that she was having trouble making decisions as to the child due to mental health
issues and was acting erratically at the hospital. Although DCS did not initially believe that
18
We note that while Mother asserted in the termination trial that she had not been served with the
dependency and neglect petition, she did not raise this argument on appeal. Moreover, the record on appeal
contains a summons from the dependency and neglect action that was served on Mother on September 6,
2017. Mother also participated in the dependency and neglect action by and through her counsel without
ever objecting to the lack of service of a summons or personal jurisdiction. Thus, even to the extent that
this issue is at all relevant to this action, it lacks merit.
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removal was necessary, Mother’s mental health issues became more pronounced when
DCS met with Mother in the days following the hospital visit. Mother’s behavior gave DCS
serious concerns about her mental health, leading ultimately to the removal of the child and
DCS’s insistence that she complete certain mental health requirements.
We have generally held that expert proof is not required to show “the effect of a
parent’s mental illness on his or her ability to parent a child[.]” In re Shaneeque M., No.
E2014-00795-COA-R3-PT, 2014 WL 6499972, at *9 (Tenn. Ct. App. Nov. 20, 2014)
(concerning the ground for termination related to a present mental condition that prevents
a party from adequately caring for a child). Mother’s own interactions with DCS workers
and visitation supervisors confirmed that her mental health was at issue. Mother was
certainly free to ignore DCS’s recommendations, but she did so at the risk that her refusal
could prevent reunification with the child, so long as her mental health issues continued to
place the child at substantial risk of harm. Simply put, Mother’s fundamental right to refuse
treatment did not mean that DCS had to sit idly by when Mother’s untreated mental health
issues presented a risk of substantial harm to the child. Thus, we hold that DCS was entitled
to rely on grounds for termination that implicate Mother’s mental health and her refusal to
comply with reasonable requests to remedy issues related to that issue, without compliance
with Tennessee Code Annotated section 33-6-401 and its related statutes. Moreover, we
conclude that the evidence does not preponderate against the trial court’s finding that the
plans’ requirements were reasonable and related to the conditions that led to the removal
of the child.
Mother next argues that she did substantially comply with the requirements of the
plans. We agree that Mother did meet many requirements, as there were no concerns with
her housing, her income, or her drug use at the time of trial. The trial court also made no
finding that Mother failed to create a transportation plan or complete an alcohol and drug
assessment.
But as DCS points out, the central focus of this case was Mother’s mental health.
And the requirements related to this issue are where Mother’s compliance was woefully
deficient. For example, while Mother did complete a psychological assessment, the
testimony indicated that she did not follow the recommendations, such as regularly
attending counseling. Instead, throughout the nearly thirty-three months that the child was
in DCS’s physical custody, Mother attended only three counseling sessions, and her
counselor reported that she did not focus on treatment. As a result, another mental health
assessment was recommended; while Mother sometimes agreed that she would complete
this assessment, she ultimately refused to do so. Mother also declined DCS’s offer of
assistance in obtaining this assessment and yet failed to determine whether her insurance
would cover the cost. This refusal to check her insurance coverage was typical of Mother’s
behavior throughout the pendency of this case. Mother also refused on multiple occasions
to sign releases allowing DCS to obtain her medical records, or later revoked the releases
that she did sign.
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Finally, the proof concerning Mother’s conduct at the visitations indicated that
Mother’s mental health issues did not improve over the time that the child was in custody;
indeed, in July 2019, visitations were terminated because of Mother’s erratic and
aggressive behavior. Thus, Mother efforts were deficient in completing the actions steps
related to maintaining a bond with the child and demonstrating appropriate parenting
behaviors during visitation.
As previously discussed, “the real worth and importance of noncompliance should
be measured by both the degree of noncompliance and the weight assigned to that
requirement.” In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002). Thus, a parent’s
completion of many tasks may still constitute substantial noncompliance when the parent
made little effort to complete the tasks that relate to the “central requirements” of the plans
that “are integral to the successful reunification of th[e] family.” In re Aaralyn O., No.
W2017-01411-COA-R3-PT, 2018 WL 468246, at *10 (Tenn. Ct. App. Jan. 18, 2018). In
a similar situation, we explained as follows:
It is quite evident from the record before us that the primary reason for
Mother’s inability to properly care for her children was her ongoing drug
dependency and thus, we agree with the juvenile court’s conclusion that her
failure to comply with her plans’ requirement that she lead a drug free lifestyle
constitutes substantial noncompliance.
In re J.C.D., 254 S.W.3d 432, 442 (Tenn. Ct. App. 2007); see also In re Destiny S., No.
M2016-00098-COA-R3-PT, 2016 WL 4186731, at *9 (Tenn. Ct. App. Aug. 4, 2016)
(affirming the ground of substantial noncompliance where the parent completed some
tasks but failed to complete the tasks related to sobriety, the “primary concern in this case
from the very beginning”). Here, the record reflects that the primary issue preventing
reunification was Mother’s mental health, including her erratic behavior, paranoia, and
aggression toward her own child. Mother made very little effort to complete any of the
requirements that related to her ongoing mental health issues. As a result, we cannot
conclude that the trial court erred in concluding that Mother’s noncompliance with the
permanency plans was substantial under the circumstances. This ground for termination is
therefore affirmed.
2. Abandonment by Failure to Visit
DCS next argues Mother’s parental rights should be terminated on the ground of
abandonment by failure to visit, pursuant to Tennessee Code Annotated sections 36-1-
102(1)(A)(i) and 36-1-113(g)(1). Section 36-1-113(g)(1) states that termination of parental
rights may be based upon “[a]bandonment by the parent or guardian, as defined in § 36-1-
102.” At the time of the filing of the termination petition, section 36-1-102(1)(A)(i), in
turn, defined “abandonment” as follows:
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For a period of four (4) consecutive months immediately preceding the filing
of a proceeding, pleading, petition, or any amended petition to terminate the
parental rights of the parent or parents or the guardian or guardians of the
child who is the subject of the petition for termination of parental rights or
adoption, that the parent or parents or the guardian or guardians either have
failed to visit or have failed to support or have failed to make reasonable
payments toward the support of the child[.]
Failure to visit refers to
the failure, for a period of four (4) consecutive months, to visit or engage in
more than token visitation. That the parent had only the means or ability to
make very occasional visits is not a defense to failure to visit if no visits were
made during the relevant four-month period[.]
Tenn. Code Ann. § 36-1-102(1)(E). Token visitation, in turn, is defined as “visitation,
under the circumstances of the individual case, [which] constitutes nothing more than
perfunctory visitation or visitation of such an infrequent nature or of such short duration as
to merely establish minimal or insubstantial contact with the child[.]” Tenn. Code Ann. §
36-1-102(1)(C). Under Tennessee Code Annotated section 36-1-102(1)(I), as amended,
it shall be a defense to abandonment for failure to visit or failure to support
that a parent or guardian’s failure to visit or support was not willful. The
parent or guardian shall bear the burden of proof that the failure to visit or
support was not willful. Such defense must be established by a
preponderance of evidence. The absence of willfulness is an affirmative
defense pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure[.]
“Proving an allegation by a preponderance of the evidence requires a litigant to convince
the trier-of-fact that the allegation is more likely true than not true.” McEwen v. Tennessee
Dep’t of Safety, 173 S.W.3d 815, 825 (Tenn. Ct. App. 2005) (citing Austin v. City of
Memphis, 684 S.W.2d 624, 634–35 (Tenn. Ct. App. 1984)). “Failure to visit or support a
child is ‘willful’ when a person is aware of his or her duty to visit or support, has the
capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing
so.” In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (citing In re M.J.B., 140
S.W.3d 643, 654 (Tenn. Ct. App. 2004)).
Here, the relevant four-month period is March 19, 2019 to July 18, 2019. There is
no dispute that while Mother was late for some of the visits and some of the visits were cut
short, Mother did in fact attend all of the visits that were provided to her by DCS during
this time. This led the trial court to find that Mother visited the child “on a fairly regular
basis.” The central focus of the trial court’s findings as to this ground for termination was
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not, however, on the quantity of visits exercised by Mother, but the quality of those visits.
Specifically, the trial court made detailed findings as to Mother’s conduct at each visit that
occurred in the four-month period, finding that with the exception of a single visit in the
four-month period, in each and every visit, there were significant issues with Mother’s
conduct. Some of these issues included acting erratically, becoming unreasonably angry
with the child, yelling at the child, frightening the child, threatening to take the child to the
hospital, being aggressive toward the child, acting indifferently toward the child, expecting
behavior beyond the child’s current development, becoming paranoid about the child’s
safety or privacy, refusing to play with the child even when asked, refusing to end the visits
as asked, telling the child that he was coming home tomorrow without basis, holding the
child down, demanding that the child bond with her rather than performing the tasks that
the supervisor asserted would naturally create a bond, playing on her phone rather than
attending to the child, talking with the supervisor about her case instead of interacting with
the child, claiming that she had multiple degrees and professions, bringing in items
smelling of alcohol, showing the child inappropriate pictures of violence on her phone, and
arguing with the child. These issues did not seem to improve as time went on, but actually
appeared to worsen, resulting in the suspension of Mother’s visitation shortly after the
termination petition was filed.
On appeal, Mother argues that the trial court’s focus on the quality of the visits was
inappropriate. Instead, Mother contends that under the definition of token visitation in
section 36-1-102, the only question is whether Mother’s visits were perfunctory,
infrequent, or of short duration. As Mother states, “[b]ad visits are not the same thing as
infrequent perfunctory visits.” Respectfully, we must disagree.
Whether a visit is token “under the circumstances of the individual case” is a
particularly fact-intensive inquiry. Tenn. Code Ann. § 36-1-102(1)(C); In re Keri C., 384
S.W.3d 731, 748 (Tenn. Ct. App. 2010). In making this determination, courts look at the
“frequency, duration, and quality of the visits that occurred.” In re Keri C., 384 S.W.3d at
750. We also consider any evidence of “the parent’s conduct and the relationship between
the child and the parent up to this point.” Id. at 749. Based on this law, we have previously
affirmed a finding on this ground when the parent appeared at every weekly visitation that
he was able prior to incarceration, but the visitation was nevertheless token in nature
because the parent was physically aggressive and inappropriate with the children. In re
Joseph G., No. E2012-2501-COA-R3-PT, 2013 WL 3964167, at *9 (Tenn. Ct. App. July
31, 2013) (also concluding that the mother’s few visits were perfunctory because the
mother was intoxicated, verbally abusive, and inappropriate with the children). In another
case, the mother attended all but two visitations that were provided during the four-month
period. See State Dep’t of Children’s Servs. v. L.L.T., No. E2003-00501-COA-R3-JV,
2003 WL 23094559, at *4 (Tenn. Ct. App. Dec. 30, 2003). But the DCS caseworker
testified that the mother fell asleep during some of the visits, was intoxicated during some
sessions, and got into an argument with father during some sessions. Id. We therefore
affirmed the trial court’s finding that the mother’s visitation was merely “perfunctory” and
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that the mother had in fact failed to visit the child in more than a token fashion. Id.We cannot deny that this case is unusual. Here, Mother attended every single
visitation that was permitted by DCS in the relevant period. But she did not spend all of
her allotted time with the child, as she was sometimes late and some visits were cut short
due to her own conduct. While quantity may be in Mother’s favor, quality certainly is not.
Here, the evidence supports the trial court’s findings that Mother’s visits were more often
than not, fraught with deplorable conduct by Mother. Indeed, it appears that the visits with
the child were counter-productive, as Mother’s escalating aggression and erratic behavior
caused the child to grow frightened of her. Mother was not able to string together even two
visits in a row that did not suffer from serious issues. As a result, the visits were not helpful
in developing any meaningful bond with the child. As a whole, we cannot conclude that
the evidence preponderates against the trial court’s finding that Mother’s visits were only
token under the circumstances. DCS therefore proved this ground by clear and convincing
evidence.
3. Abandonment by Failure to Establish a Suitable Home
DCS also argues that Mother abandoned the child in another way, by failing to
establish a suitable home for the child. Under Tennessee Code Annotated section 36-1-
102(a)(1)(A)(ii), abandonment may be found under the following circumstances:
(a) The child has been removed from the home or the physical or legal custody
of a parent or parents or guardian or guardians by a court order at any stage
of proceedings in which a petition has been filed in the juvenile court alleging
that a child is a dependent and neglected child, and the child was placed in the
custody of the department or a licensed child-placing agency;
(b) The juvenile court found, or the court where the termination of parental
rights petition is filed finds, that the department or a licensed child-placing
agency made reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable efforts from being
made prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent or parents
or the guardian or guardians to establish a suitable home for the child, but that
the parent or parents or the guardian or guardians have not made reciprocal
reasonable efforts to provide a suitable home and have demonstrated a lack of
concern for the child to such a degree that it appears unlikely that they will be
able to provide a suitable home for the child at an early date. The efforts of
the department or agency to assist a parent or guardian in establishing a
suitable home for the child shall be found to be reasonable if such efforts equal
or exceed the efforts of the parent or guardian toward the same goal, when the
parent or guardian is aware that the child is in the custody of the department;
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....
Providing a suitable home “requires more than providing a proper physical living
location.” In re Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App. 2016) (citations,
quotation marks, and alterations omitted). A parent’s failure to address mental health issues
can also lead to a finding that the parent has failed to establish a suitable home. See, e.g.,
In re Draven K., No. E2019-00768-COA-R3-PT, 2020 WL 91634, at *8 (Tenn. Ct. App.
Jan. 7, 2020) (“Mother’s failure to address her mental health issues renders her unable to
provide a safe and stable environment for the child and shows a lack of concern for the
child and a lack of interest in regaining custody.”); In re Roderick R., No. E2017-01504-
COA-R3-PT, 2018 WL 1748000, at *12 (Tenn. Ct. App. Apr. 11, 2018) (“Mother’s own
failure to comply with her mental health treatment regimen demonstrated her lack of
concern for the Children and resulted in her inability to provide
a suitable home environment.”).
Here, Mother does not dispute that the conditions in subsections (a) and (b) are
satisfied: the children were removed by the juvenile court dependency and neglect orders
and placed in DCS custody, and the trial court found that reasonable efforts were made by
DCS to prevent the removal of the child. Moreover, Mother does not assert that DCS failed
to make reasonable efforts in this case, as the trial court specifically found. We agree that
they did. Here, DCS provided Mother with a variety of services following the removal and
throughout the pendency of this case. Cf. In re Jakob O., No. M2016-00391-COA-R3-PT,
2016 WL 7243674, at *13 (Tenn. Ct. App. Dec. 15, 2016) (“As long as the proof relates to
‘a period of four (4) months following the removal,’ Tenn. Code Ann. § 36-1-102(1)(A)(ii),
the ground may be established. The statute does not limit the court’s inquiry to a period of
four months immediately following the removal.”). This includes assisting Mother with
obtaining assessments and counseling services, setting up supervised visitation, repeatedly
informing Mother of the tasks that she was required to complete, and attempting to assist
her in completing those tasks. Thus, the trial court’s finding that DCS’s efforts were
reasonable is affirmed.
Mother argues, however, that DCS failed to present clear and convincing evidence
that her home was unsuitable. In this case, there is no dispute that Mother’s physical home
is suitable for a child. Instead, the trial court relied again on Mother’s unaddressed mental
health concerns as the basis for this ground, citing “Mother’s failure to participate in
individual counseling, sig[n] releases and complete a more in-depth psychological
evaluation[.]” Thus, the trial court found that “Mother is unable to provide a suitable home
due to her refusal to address her mental/emotional health issues that created barriers to not
only visitation but reunification.” We agree. As previously discussed, Mother failed to
attend more than three individual counseling sessions and failed to complete the
recommended second assessment, even after agreeing to do so. Moreover, Mother’s
conduct at the visitations before they were suspended indicated that her behavior was not
safe for the child, even in that highly supervised situation. Mother vacillated between
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extreme interest, aggression, indifference, and anger. She did not make significant progress
in her parenting skills. Thus, Mother’s own behavior demonstrates a lack of concern for
the child such that it appears unlikely that she will be able to provide a suitable home for
him at an early date. See Tenn. Code Ann. § 36-1-102(1)(A)(ii)(c). This ground for
termination is therefore affirmed.
5. Failure to Manifest an Ability and Willingness to Assume Legal and Physical
Custody
The next ground upon which DCS relies, and which the trial court found, is that
Mother failed “to manifest, by act or omission, an ability and willingness to personally
assume legal and physical custody . . . of the child, and placing the child in [Mother’s] legal
and physical custody would pose a risk of substantial harm to the physical or psychological
welfare of the child.” Tenn. Code Ann. § 36-1-113(g)(14). As the Tennessee Supreme
Court explained,
section 36-1-113(g)(14) places a conjunctive obligation on a parent or
guardian to manifest both an ability and willingness to personally assume
legal and physical custody or financial responsibility for 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., 614 S.W.3d 659, 677 (Tenn. 2020) (citation omitted).
We begin with the willingness and ability prong. “Ability focuses on the parent’s
lifestyle and circumstances.” In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019 WL
1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019) (citing In re Maya R., No. E2017-01634-
COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018)). “When evaluating
willingness, we look for more than mere words.” Id. (citing In re Keilyn O., No. M2017-
02386-COA-R3-PT, 2018 WL 3208151, at *8 (Tenn. Ct. App. June 28, 2018)). “Parents
demonstrate willingness by attempting to overcome the obstacles that prevent them from
assuming custody. . . .” Id. Although we may consider evidence from both before and after
the petition was filed, see In re Maya R., 2018 WL 1629930 at *7, a parent’s ability and
willingness may be measured as of the time the petition is filed. See In re Serenity W., No.
E2018-00460-COA-R3-PT, 2019 WL 511387, at *7 (Tenn. Ct. App. Feb. 8, 2019) (citing
In re M.E.N.J., No. E2017-01074-COA-R3-PT, 2017 WL 6603658, at *7 (Tenn. Ct. App.
Dec. 27, 2017)).
Here, the trial court again based its finding on this ground on Mother’s unaddressed
mental health issues: “Mother has unaddressed emotional and/or mental health issues that
would pose a risk of substantial harm to this Child’s physical and psychological welfare if
the Child was returned to the Mother’s care.” Mother’s only argument in response to this
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ground is that she cannot be forced into psychiatric treatment or testing without compliance
with Tennessee Code Annotated section 33-6-401. As previously discussed, however, DCS
was not required to comply with section 33-6-401, and it was reasonable for DCS to require
Mother to obtain mental health testing and treatment in this case.
We agree with the trial court that Mother has not exhibited the ability or willingness
to personally assume physical custody of the child. As previously discussed, Mother has
refused to participate in the treatment that is clearly necessary to address her mental health
concerns. Thus, Mother has made little effort to overcome the obstacles that prevent
reunification. See In re Cynthia P., 2019 WL 1313237, at *8. Mother also has not
demonstrated the ability to parent the child in a safe and appropriate manner during
supervised visitations. Instead, the visits were suspended due to Mother’s inappropriate
behavior, which caused the child to become frightened of her. Accordingly, DCS has
shown that Mother has manifested neither the ability nor a willingness to assume physical
custody of the child.
The second prong of this ground involves whether the children would suffer
substantial harm if returned to her custody. As we have explained regarding this prong:
The courts have not undertaken to define the circumstances that pose a risk of
substantial harm to a child. These circumstances are not amenable to precise
definition because of the variability of human conduct. However, the use of
the modifier “substantial” indicates two things. First, it connotes a real hazard
or danger that is not minor, trivial, or insignificant. Second, it indicates that
the harm must be more than a theoretical possibility. While the harm need not
be inevitable, it must be sufficiently probable to prompt a reasonable person
to believe that the harm will occur more likely than not.
Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted). Here, we agree
with the trial court that Mother’s unaddressed mental health issues pose serious risk of
substantial harm to the child. Mother has not had unsupervised visitation with the child in
nearly three years. And she has had no visitation with him of any kind in over ten months
by the time of trial. The visits were terminated because Mother’s own behavior was highly
inappropriate; she was at times aggressive, indifferent, or angry with the child. Mother’s
conduct caused the child to become frightened. As a result, we have little difficulty
affirming the trial court’s finding that returning the child to Mother would pose a risk of
substantial harm to the child.
6. Persistence of Conditions
The final ground DCS relies on is persistence of conditions, pursuant to Tennessee
Code Annotated section 36-1-113(g)(3):
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(A) The child has been removed from the home or the physical or legal
custody of a parent or guardian for a period of six (6) months by a court
order entered at any stage of proceedings in which a petition has been
filed in the juvenile court alleging that a child is a dependent and
neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent or guardian,
or other conditions exist that, in all reasonable probability, would
cause the child to be subjected to further abuse or neglect, preventing
the child’s safe return to the care of the parent or guardian;
(ii) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent or
guardian in the near future; and
(iii) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe,
stable, and permanent home;
(B) The six (6) months must accrue on or before the first date the termination
of parental rights petition is set to be heard[.]
There is no dispute in this case that the child was removed from Mother’s custody
for a period of six months by an order entered in a dependency and neglect action. Thus,
the dispositive questions are whether conditions persist that prevent the safe return of the
child, whether the conditions will likely be remedied at an early date, and whether the
continued relationship prevents early integration of the child into a stable, permanent home.
As we have previously explained,
“A parent’s continued inability to provide fundamental care to a child, even
if not willful, . . . constitutes a condition which prevents the safe return of the
child to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008
WL 4613576, at *20 (Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. &
M.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn. Ct.
App. July 13, 2000)). The failure to remedy the conditions which led to the
removal need not be willful. In re T.S. & M.S., 2000 WL 964775, at *6
(citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.
1990)). “Where . . . efforts to provide help to improve the parenting ability,
offered over a long period of time, have proved ineffective, the conclusion []
that there is little likelihood of such improvement as would allow the safe
return of the child to the parent in the near future is justified.” Id. The
purpose behind the “persistence of conditions” ground for terminating
parental rights is “to prevent the child’s lingering in the uncertain status of
foster child if a parent cannot within a reasonable time demonstrate an ability
to provide a safe and caring environment for the child.” In re A.R., No.
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W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn. Ct. App. Oct.
13, 2008) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL
588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)).
In re Navada N., 498 S.W.3d 579, 605–06 (Tenn. Ct. App. 2016).
Mother’s argument as to this ground is sparse. As we perceive it, Mother essentially
argues that the conditions that led to the removal initially, that she lacked appropriate
materials to care for an infant and that she was not in her “right mind to make medical
decisions,” had been remedied.19 Mother further argues that the only significant condition
that arose after the removal was her reluctance to submit to psychological testing and
treatment. As to this condition, Mother again contends that DCS was not permitted to
coerce Mother into mental health treatment, which we will not further address. As
previously discussed, DCS was entitled to require Mother to submit to mental health
treatment and testing prior to reunification under the facts of this case.
Moreover, as we have repeatedly stated, Mother’s mental health issues continued to
persist at the time of trial. Mother’s visits with this child in the Spring and Summer of 2019
provide a clear indication that Mother’s unaddressed mental health issues prevented her
from appropriately parenting her child; not only did Mother never have consistent enough
interactions with the child to progress to unsupervised visitation, her visitation was
terminated due to her own conduct. Thus, these conditions “in all reasonable probability,
would cause the child to be subjected to further abuse or neglect, preventing the child’s
safe return to the care of the parent or guardian[.]” Tenn. Code Ann. § 36-1-113(g)(3).
There was also little likelihood that these conditions would be remedied at an early date,
as Mother repeatedly refused to participate in meaningful mental health treatment or to
listen in any way to DCS’s advice.20 The proof also shows that the child is in a loving pre-
adoptive home. A continued relationship with Mother prevents the child from achieving
permanence with the family that has cared for him for three years. As a result, this ground
for termination is likewise affirmed.
C. Best Interest
19
Mother does not actually state in her brief that these conditions were remedied. In her reply brief,
she asserts that there was no evidence that these conditions even existed, somewhat of a change from her
argument in her initial brief. Regardless, the persistent conditions ground makes clear that it applies to both
conditions that caused the removal and “other conditions” that become apparent following the removal. See
In re Antonio J., No. M2019-00255-COA-R3-PT, 2019 WL 6312951, at *6 (Tenn. Ct. App. Nov. 25, 2019)
(“This ground for termination, however, is not limited only to those conditions that led to the child's
removal, but allows the court to also consider “other conditions that in all reasonable probability would
cause the child to be subjected to further abuse or neglect[.]” Tenn. Code Ann. § 36-1-113(g)(3)(A). Thus,
neither the trial court nor this Court is confined in our review only to those conditions that were expressly
found to support the dependency and neglect findings.”).
20
Even during trial when DCS testified about the advice that they gave Mother about safe parenting,
Mother objected that DCS could not tell her how to parent her child.
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Because we have determined that at least one statutory ground has been proven for
terminating Mother’s parental rights, we must now decide if DCS has proven, by clear and
convincing evidence, that termination of Mother’s rights is in the child’s best interests.
Tenn. Code Ann. § 36-1-113(c)(2); White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). If “the interests of the parent and the child conflict, courts are to resolve the conflict
in favor of the rights and best interest of the child.” In re Navada N., 498 S.W.3d at 607.
The statutory factors that courts should consider in ascertaining the best interest of
the children include, but are not limited to, the following:
(1) Whether the parent or guardian 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 or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other
contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult in
the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to § 36-5-
101.
Tenn. Code Ann. § 36-1-113(i).21 “This list is not exhaustive, and the statute does not
21
This is the version of section 36-1-113(i) that was in effect when the termination petition was
filed. The Tennessee General Assembly amended the statutory best interest factors in 2021. See 2021 Tenn.
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require a trial court to find the existence of each enumerated factor before it may conclude
that terminating a parent’s rights is in the best interest of a child.” In re M.A.R., 183 S.W.3d
652, 667 (Tenn. Ct. App. 2005) (citations omitted).
Again, Mother’s argument here is sparse at best. Although Mother concedes “that
to a great extent the record supports the Juvenile Court’s findings of fact” with regard to
best interest, Mother argues on appeal that the trial court’s order fails to address the nine
factors above. We respectfully disagree. Although the trial court did not explicitly
reference the above factors by number, the trial court’s order contains detailed findings of
fact as to best interest that clearly correspond to each of the above factors. For example, in
subsection (b) of the trial court’s best interest findings, the trial court found that Mother
“failed to make changes in her conduct and she has failed to make an adjustment of her
circumstances and/or conditions as to make it safe for the Child to go back into the
Mother’s home[.]” This clearly references best interest factor (1). Likewise, in subsection
(b), the trial court noted that Mother was unable to make changes despite “herculean”
efforts by DCS. This clearly references best interest factor (2). In our review of the trial
court’s findings, it appears that it properly addressed seven of the nine best interest
findings.22 This is more than sufficient for appellate review in this case. See In re M.A.R.,
183 S.W.3d at 667 (Tenn. Ct. App. 2005) (holding that every single factor need not be
examined).
We further agree with the trial court that the factors favor termination in this case.
The trial court was correct that Mother has been unable to make a lasting adjustment of
circumstances so as to make the return of the child safe, despite the best efforts of DCS.
See Tenn. Code Ann. § 36-1-113(i)(1), (2). The evidence also does not preponderate
against the trial court’s finding that while Mother maintained visitation with the child, it
was “harmful to the Child’s wellbeing and the visits were not constructive toward creating
a bond or relationship with the child.” As a result, the evidence supports the trial court
finding that “there is not a bond between the Mother and the Child” and that other than a
single visit, there was “never any positive interactions between the Mother and the Child
during visits[.]” See Tenn. Code Ann. § 36-1-113(i)(3), (4). The evidence also clearly
shows that the child is thriving with and bonded to his pre-adoptive family and that any
Laws Pub. Ch. 190 (S.B. 205), eff. April 22, 2021. Neither party asserts that the revised version of the
statute is applicable in this case.
22
Mother’s brief correctly points out that the when the trial court reaches the final two best interest
factors, the trial court’s order contains clear omissions and references to individuals that were not part of
the proof in this case. These appear to be mere typographical errors. Moreover, the trial court’s findings of
fact are extremely detailed and responsive to the proof that was presented in this case. Cf. In re Colton B.,
No. M2017-00997-COA-R3-PT, 2017 WL 6550620, at *4 (Tenn. Ct. App. Dec. 22, 2017) (holding that a
trial court’s final termination order was insufficient when the order, inter alia, contained “not a single
mention of any of the proof presented at the termination hearing, such as the testimony of the witnesses or
the depositions submitted as exhibits”). As such, to the extent that these issues are errors, they are harmless.
See Tenn. R. App. P. 36(b).
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change in caretakers would therefore be “extremely detrimental to his emotional well-being
and [] would result in extreme psychological harm to the Child[.]” See Tenn. Code Ann. §
36-1-113(i)(5). The trial court further found that Mother’s behavior during the visitation
rose to the level of psychological abuse, as her conduct was traumatic for the child; the
evidence does not preponderate against this finding. See Tenn. Code Ann. § 36-1-113(i)(6).
And of course, as the trial court found, Mother’s mental health and her refusal to seek help
“created a significant barrier in achieving permanency for the Child.” See Tenn. Code Ann.
§ 36-1-113(i)(7). Thus, all of these above factors support termination in this case.
Therefore, at best, only the two factors that were not specifically addressed by the trial
court weigh against termination. See Tenn. Code Ann. § 36-1-113(i)(8), (9).
In sum, the vast majority of the factors at issue in this case favor termination.
Importantly, while Mother did visit with the child before the visits were terminated, she
was unable to parent effectively or to establish any meaningful bond with the child. “This
Court has held that both the existence of a meaningful relationship and the lack of
meaningful relationship may be considered important factors in the best interest analysis.”
In re P.G., No. M2017-02291-COA-R3-PT, 2018 WL 3954327, at *16 (Tenn. Ct. App.
Aug. 17, 2018) (citing In re Addalyne S., 556 S.W.3d 774, 795 (Tenn. Ct. App. 2018));
see In re Jayvien O., No. W2015-02268-COA-R3-PT, 2016 WL 3268683, at *9 (Tenn. Ct.
App. June 7, 2016) (affirming a trial court’s holding that termination was in the child’s best
interest where the trial court found that “‘most importantly,’ . . . a meaningful relationship
had not been established between” the mother and child); In re Terry S.C., No. M2013-
02381-COA-R3-PT, 2014 WL 3808911, at *18 (holding that termination was in the
children’s best interest including because, “perhaps most importantly, [the mother] has
failed to maintain regular visitation with the children and therefore has no meaningful
relationship with them”). The child is in a safe, loving pre-adoptive home where he is
bonded to his foster parents and siblings. Indeed, the child has spent more of his life with
this family than he did in Mother’s custody. The trial court’s ruling that termination is in
the child’s best interest is therefore affirmed.
V. CONCLUSION
The judgment of the Rutherford County Juvenile Court is affirmed as to both the
grounds for termination and the finding that termination is in the child’s best interest. The
termination of Mother’s parental rights is therefore affirmed. Costs of this appeal are taxed
to Appellant Tesha L.B., for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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