In Re Jordyn H. ( 2021 )

12/21/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2021
IN RE JORDYN H., ET AL.
Appeal from the Juvenile Court for Lauderdale County
No. J9-784 Rachel J. Jackson, Judge
No. W2020-01618-COA-R3-PT
This appeal concerns the termination of a mother’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for
Lauderdale County (“the Juvenile Court”) seeking to terminate the parental rights of Erica
H. (“Mother”) to her minor twin sons, Jordyn and Jadyn H. (“the Children,” collectively).
After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights
on a number of grounds. Mother appeals. We find, by clear and convincing evidence, that
five grounds for termination were proven against Mother and that termination of Mother’s
parental rights is in the Children’s best interest. However, we vacate certain of the grounds
found by the Juvenile Court. We therefore affirm the Juvenile Court’s judgment, as
modified, terminating Mother’s parental rights to the Children.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed as Modified; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Lauren A. Raynor, Covington, Tennessee, for the appellant, Erica H.
Herbert H. Slatery, III, Attorney General and Reporter; and Lexie A. Ward, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
In March 2019, the Children were born prematurely.1 Based upon their in-utero
drug exposure by Mother, the Children entered DCS custody. Protective custody orders
were entered to this effect. Jadyn’s urine and meconium results came back positive for
cocaine. Jordyn did not have enough urine for a drug screen; his meconium results were
negative. Jadyn was discharged from the hospital on May 28, 2019. Jordyn was discharged
on June 4, 2019. The Children then entered their present foster home, where they have
remained throughout the custodial episode.
In March 2020, the Juvenile Court adjudicated the Children victims of severe child
abuse based on Mother’s drug abuse and Jadyn testing positive for cocaine. DCS moved
for, and was granted, relief from having to provide reasonable efforts as it related to the
Children. Mother did not appeal the severe child abuse finding. Mother was incarcerated
from November 4, 2019 through November 14, 2019 on a violation of probation, the
underlying charge for which was severe child abuse. On March 16, 2020, DCS filed a
petition in the Juvenile Court seeking to terminate Mother’s parental rights to the Children.
DCS alleged a host of grounds, to wit: (1) abandonment by failure to visit; (2) abandonment
by failure to support; (3) abandonment by wanton disregard (should the proof show that
Mother was incarcerated during the four months prior to the filing of the petition); (4)
abandonment by failure to establish a suitable home; (5) substantial non-compliance with
the permanency plan; (6) persistent conditions; (7) severe child abuse; and (8) failure to
manifest an ability and willingness to assume custody. DCS also alleged that terminating
Mother’s parental rights would be in the Children’s best interest. Mother filed an answer
in opposition.
This matter was tried in August 2020. Veronica Gooch (“Gooch”), DCS Team
Leader for Foster Care in Lauderdale, Haywood, and Hardeman Counties, testified first.
Gooch supervised DCS worker Angel Ingram (“Ingram”), who had worked on the case but
was then on maternity leave. Gooch had reviewed the casefile before testifying. Gooch
was involved with the Children’s case primarily in a supervisory role. Gooch testified:
The children entered custody due to drug exposure by the mother. From my
understanding, [Jadyn] tested positive in the hospital for cocaine, and
[Jordyn] did not test positive because they didn’t have enough urine to make
1
No father was listed on the birth certificates.
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the screening for him, but it was my understanding that the children entered
due to drug exposure by the mother.
Mother was supposed to go to the Dream Center facility in Jackson, which was to
take in both her and the Children. However, Mother failed to submit the proper paperwork.
DCS attempted to find relatives who could assume custody of the Children. In particular,
DCS reached out to the Children’s maternal grandmother, but she was unable to assume
custody. At the time, the maternal grandmother was living in a one-bedroom residence
while caring for an older child of Mother’s. Gooch then testified to Mother’s
responsibilities under her permanency plan:
The responsibilities for [Mother] was to complete parenting classes.
[Mother] was to complete alcohol -- it was to complete an alcohol and drug
assessment and follow the recommendations. [Mother] was to have financial
and residential stability. [Mother] was to have a mental health assessment,
will maintain her mental health treatment with Dr. Osborne in Dyersburg and
provide verifications. And she was to make the Department aware of the
whereabouts of the father….
Gooch stated that, to her knowledge, Mother had not completed parenting classes.
Gooch stated that Mother did not complete an alcohol and drug assessment. Gooch
acknowledged, however, that Mother went to Buffalo Valley, a drug rehabilitation center.
Mother spent a little less than a month there. Asked whether DCS was able to get any
information regarding Mother’s aftercare requirements, Gooch stated:
No. When we attempted to get the recommendations from Buffalo Valley
after she completed her 30-day program there, we were not able to because
she had not signed a release of information, so when we attempted to call to
get the recommendations, they would not give them to us due to privacy
issues.
Gooch testified that as of that day of trial, she still did not have a release from
Mother to obtain Mother’s aftercare records. Gooch stated that on November 4, 2019,
Mother tested positive for marijuana, cocaine, and morphine. Mother refused DCS’s
requests for drug screens upon her release from Buffalo Valley. Regarding Mother’s
housing situation, Gooch testified:
To my knowledge, she is still homeless. She states that -- we’ll ask her one
time and she’ll say that she lives with her mother. We’ll ask her again, and
she’ll say that she’s homeless. Her mother said she does not live there with
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her because she only has a one bedroom apartment, and she’s not on her
lease, so she cannot stay there with her.
Mother never furnished Gooch with a residential lease or a residence on which to
conduct a home study. Mother never provided any verification that she maintained her
mental health treatment with Dr. Osborne. Gooch stated that pursuant to the Health
Insurance Portability and Accountability Act, or “HIPAA,” a signed release from Mother
was required to access that information. Gooch then testified to the Children’s health.
Gooch stated that the Children suffered from certain developmental delays. Gooch
elaborated:
I know that they were not meeting their developmental milestones on time.
I know they’re over a year old. They just started walking. Only started
babbling or to talk maybe a few months ago. Couldn’t sit up on time like
they were supposed to be able to sit up at 5 or 6 months old. They were not
able to do so without some assistance. Couldn’t roll over when they were
supposed to at the developmental milestone that they were supposed to. So,
[Tennessee Early Intervention System] has been working with them doing
physical therapy, and we were starting speech therapy for them as well
through TEIS.
Gooch stated that once the Children reach age three, TEIS has to refer them to a
school system or another provider. Returning to the permanency plan, Gooch stated that
Mother signed it. On July 9, 2019, Mother signed the Criteria and Procedures for
Termination of Parental Rights. The document also contained a signature by Ingram
reflecting she explained its contents to Mother. Asked if there were other occasions when
it was explained to Mother that her parental rights could be terminated for failure to comply
with the permanency plan, Gooch testified:
Yes. When we had other permanency plans, she was made aware, via phone.
The last one we just had was February. She was made aware via phone and
when we made home visits to her mother’s home, and she was there, we
made her aware. We went over the permanency plan with her, and we made
her aware that her rights could be terminated for not complying with the
permanency plan.
When Gooch was asked to detail the services DCS provided for the Children and
Mother in this case, Gooch responded:
Q. What services did the Department provide for the children and [Mother]
in this case?
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A. The Department assisted the mother with locating an A&D treatment
facility, provided transportation, and completed the Tennessee Early
Intervention referrals for the children.
Q. Now, when you say, “provided transportation,” what type of
transportation? Was this to visits with the children? Was this to visits to go
to Buffalo Valley? What type of transportation? Would you just state on the
record what you mean by that?
A. I provided transportation to [Mother] to take her to meet the bus to go to
Buffalo Valley on the day that she went to Buffalo Valley. Ms. Angel
transported her to different places that she needed to go to around Ripley.
And she transported her, I do believe, to Here’s Hope to find out about the
counseling at Here’s Hope as well.
Gooch stated that the Children had been in the same foster home since the beginning
of the case. Regarding visitation, Gooch testified that Mother had only visited one of the
Children, Jordyn, once when he was having tubes placed in his ears at the hospital; Mother
was at the hospital to be with her daughter who was giving birth. Gooch stated that Mother
had not contacted DCS seeking any additional visits with the Children. Gooch stated that
Mother never sent the Children any birthday or Christmas cards. Gooch stated further that,
to her knowledge, Mother never inquired as to the well-being of the Children. Gooch
testified that Mother had incurred criminal charges the morning of trial for violation of
probation. With respect to the foster parents, Gooch stated “they take excellent care of the
children.”
On cross-examination, Gooch stated that DCS did not furnish Mother with a bus
ticket to get to Buffalo Valley. Gooch testified, however, that she provided Mother with
transportation to get to the bus stop. Gooch also gave Mother food and waited with her.
Asked if she was aware that Mother lacked transportation, Gooch stated that Mother’s
mother generally provided her with transportation. Gooch stated that if parents need
transportation for a particular occasion, they have to ask for it. Gooch was asked about
Mother’s failure to sign a release for her medical records:
Q. While at Buffalo Valley, did [Mother] receive a psychological
assessment?
A. I’m not aware exactly what she received. I requested myself the results
of the aftercare for her at Buffalo Valley, and I was told that I would not --
they could not send it to me because [Mother] had not signed a release of
information, and it was a violation of their policy.
Q. Okay. [Mother] didn’t have to sign that release for you though, correct?
A. In order for me to get the information from Buffalo Valley, they would
not release it without a release from [Mother].
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Q. I understand that. But she has a personal right to keep her medical records
private, correct?
A. Yes, ma’am; I guess she does.
Q. And then you stated that she was seeing Dr. Osborne in Dyersburg.
A. That’s what she reported to us.
Q. Okay. And you requested information from there, and you also didn’t
receive a release.
A. No release was signed for us to obtain that information. This is --
[Mother] reported to us when she initially -- when the children initially came
into custody, and we were able to make contact with her that she was seeing
Dr. Osborne, but when we tried to obtain those records, there was no release
signed for us to obtain those records.
Q. Your exact words were, “not from Dr. Osborne.” Had she given you a
release for anyone else?
A. Not to my knowledge. I’m not aware of a release that was signed by
[Mother].
Gooch could not remember exactly how many drug screens Mother refused to take.
Gooch stated that Mother refused a drug screen on September 12, 2019. Gooch stated that
Mother also refused a drug screen in November 2019 before she was arrested. Gooch
testified that submitting to random drug screens was one of Mother’s responsibilities under
her permanency plan.
On examination by the guardian ad litem, Gooch was asked whether Mother had
cooperated with DCS. Gooch answered:
No, and when we attempt to discuss the permanency plan with her and try to
get her to advise us the things that she’s done or try to assist her with getting
things to assist her with the permanency plan, she gets upset and hollers and
screams and curses, and we’re not able to assist her with that.
Gooch testified that she believed the Children would be much better served staying in their
present home than ever returning to Mother’s care.
Next to testify was Erin G. (“Foster Mother”), the Children’s foster mother. Foster
Mother was married and had three biological children. The Children had come directly
from the hospital to Foster Mother’s home. Foster Mother testified extensively to the
Children’s medical conditions. Foster Mother stated that things were difficult at first,
“[b]ut [the Children] have grown so much. Always gaining weight and good reports from
their doctors.” Foster Mother stated that her older children “really do love [the Children]
and help out and so, they’re definitely a part of our family.” Foster Mother stated that
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Mother visited Jadyn in the hospital when he was having tubes put in, not Jordyn as Gooch
testified. Foster Mother testified to Mother’s visitation:
When the babies first came into our home, at that time, there was no visitation
set and so, we had been asked if we would be willing to speak with [Mother]
once a week on -- by phone, that she could just call and talk and so, we talked
once a week, and we would share photographs with her of the twins and also,
that it came to my attention later that we were -- there were so many doctor’s
visits, but that to start making her aware of doctor’s visits because she was
permitted to come to those and so, I tried then to make sure to make her aware
of doctor’s visits that were coming up, if she would choose to come to those,
but as that November date approached, I believe it was November the 3rd,
right prior to that, perhaps in the week before, we were instructed by DCS to
not have any more communication with [Mother] because that was just of
our -- that wasn’t a court mandated order. That was just something that we
agreed to but that DCS was having difficulty having contact with her and so,
they wanted the contact from their [sic] on to go through DCS between us
and [Mother], but I had already made her aware of the visit or the
appointment for the tubes to be put in in November. So, she already knew
about that….
Foster Mother, describing her home, testified she has four bedrooms and three
bathrooms. Foster Mother stated: “We truly feel that [the Children] are our children, and
they’re a part of our family, and we want what’s best for them.”
On cross-examination, Foster Mother stated that during her phone conversations
with Mother, the latter would ask how the Children were doing. Foster Mother then
elaborated on her earlier testimony that she was instructed by DCS not to speak with
Mother:
Q. Okay. And then you said prior to this or November 3rd, DCS instructed
you not to speak with [Mother]?
A. Well, like I said, the phone calls were never -- that was just if we were
willing to do that, you know, in the time that I think there was hope that
visitation eventually would be requested, but that never happened, and so,
we were just talking with her, but my understanding was that she was not
being compliant with DCS or working with them and so, they wanted her to
communicate through them so that they could know what was going on and
communicate because we were having regular communication but they were
not able to have the communication that they were desiring with her.
Q. And once again, who told you to stop communicating with the mother?
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A. I honestly don’t remember. I would think that it was Ms. Angel, but I
couldn’t say 100 percent, but I think it was probably Ms. Angel.
Q. Okay. And did they ever show you a no contact order or anything like
that?
A. No. There was no, to my knowledge, there wasn’t a no contact order, but
my understanding, even from the beginning, was that we weren’t required to
do the phone calls because that wasn’t a court -- that wasn’t court ordered,
that we were just willing to do that.
Q. Right. Okay. Would you have been willing to continue the phone calls,
if DCS had told you -- had not told you to stop doing it?
A. Yeah, I mean, we were fine with doing that, but we understood why they
were asking us not to, that made sense to us, that they were trying to have
contact, and they were not able to establish that while we were having regular
contact so.
Foster Mother testified that on Mother’s one visit with Jadyn, Mother held him;
changed his diaper; talked with Foster Mother; and was “very helpful and attentive.”
On examination by the guardian ad litem, Foster Mother stated that on one occasion,
Mother asked her if she were willing to meet some of Mother’s family members. Foster
Mother declined because “that wasn’t through DCS….” Foster Mother stated that, to her
knowledge, Mother never asked for visitation rights with the Children.
Mother was the final witness to testify. Mother stated that she did not go to the
Dream Center to submit her information because she did not have transportation. Mother
stated she asked for transportation, but she was told “they can’t just drop everything they
doing to do what I have to do.” Mother testified she found out she was pregnant three
months into her pregnancy with the Children. Mother had been using cocaine during that
time. Mother stated that she stopped using cocaine after she found out she was pregnant.
Mother stated that she then “slipped up” after giving birth. Mother went to visit the
Children while they were in the hospital. Mother testified:
I went two or three times a week. Sometimes my transportation van would
get messed up, but they would call up there and let them know it was they
fault that, you know, and then I have to sign papers to go in there. I did a lot
of visits. I even done spent the night in the waiting room.
After the Children were released from the hospital, Mother went to Buffalo Valley
for a 28-day program. Mother said that after leaving Buffalo Valley in July 2019, she paid
out-of-pocket for more rehabilitation in Nashville at a place called Footprints of Recovery.
Mother stayed there for two weeks. Mother testified:
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And I tried to get funding to stay, and I would call Ms. Angel or one of them.
They wouldn’t help me do nothing. They wouldn’t even tell me like places
I could get funding because I was paying out of my pocket. Wouldn’t nobody
give me no information or nothing like that. So, I had to go.
According to Mother, she started having phone calls with the foster parents around
April of 2019. Mother called every Wednesday at 7:00 until she went to jail that
November. Mother was incarcerated from November 4th through November 14th, 2019.
Asked if she had requested visitation with the Children, Mother replied:
Yes, ma’am. And every time I asked, they would either send me to the next
person or try to tell me to come to you or just tell me I have to talk to the
judge. I don’t -- what I supposed to come in and I don’t know how to come
in and ask for the judge. I didn’t know how to do it, so but I did ask for
visitation. Every time I talked to Ms. Angel or Ms. Gooch, or anybody, I
asked about my, and when I was in rehab, [I] tried to get them to get my kids
to see each other. That’s what I meant when I -- when she said family. My
family wanted to see. I wanted my kids to know they brothers. And I was
in Nashville. And they didn’t even do that.
Mother stated that she lives in an apartment with her son and her mother. Mother
sometimes stays at her daughter’s house, which is a two-bedroom house. Mother testified
that she has a room large enough for toddler beds. Mother had stayed with her daughter
for around one month. Mother receives $750 per month in Social Security disability
income. According to Mother, she could have her name put on an apartment lease within
a month’s time. Asked why she did not complete parenting classes, Mother stated she was
given the wrong date and then the COVID-19 pandemic began. Mother testified she
underwent a drug and alcohol assessment at Buffalo Valley, and the only recommendation
was to “go to group and read my big book.” The “big book” was “like a alcoholic
anonymous book.” Mother stated she did not sign a release for DCS because she did not
have one to sign and DCS never gave her one. Mother testified she completed a mental
health assessment. Mother stated that she did not provide information regarding this
mental health assessment to DCS because she did not know she had to. Mother testified,
however, that she gave DCS her “rehab papers and stuff.” Mother stated that she received
a copy of her permanency plan only two months before trial and only after begging for it.
Mother stated she no longer uses cocaine. DCS tried giving Mother random screens on
three occasions. Mother stated that she submitted to two drug screens and refused one.
Concluding this portion of her testimony, Mother stated that she loves the Children.
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On cross-examination, Mother admitted that she was told she failed a drug test for
morphine and marijuana in November. Asked if she refused any drug tests after that,
Mother responded: “It wasn’t really refusal. It was more of me being mad because they
tried to trick me, and I wanted my lawyer around for any time they did that anymore, and
I told her that.” Mother testified that Foster Mother is a “real nice lady.” Nevertheless,
Mother testified that the Children would be better off with her rather than Foster Mother.
Mother acknowledged that she lacked proper housing. Mother acknowledged that she had
not completed parenting classes. Mother acknowledged not providing DCS with an alcohol
and drug or mental health assessment. Mother stated: “I didn’t know I was supposed to.”
Mother acknowledged further that the apartment she testified she lived in part of the time
was a one-bedroom apartment and actually was her mother’s address. Mother’s mother
lived there with one of Mother’s older sons. Continuing her testimony, Mother stated that
she had been arrested some time before trial for domestic assault. Mother was arrested on
the day of trial for violation of probation in connection with this domestic assault charge.
Mother stated that the domestic assault was with her daughter— specifically, the daughter
Mother had stated she could live with after trial.
On re-direct examination, Mother testified that she had been prescribed and was
taking Depakote, Doxin, and Hydroxyzine, all in accordance with the recommendations of
her mental health assessment. Asked why she never told DCS about this, Mother stated:
“I didn’t know I was supposed to. I would have been glad to tell them. That would have
been good on my part.” Mother testified further that she had passed all of the drug screens
administered through her probation services. After testifying, Mother submitted to a drug
screen at the termination hearing. Mother tested positive for marijuana, opiates, and
Tramadol. It was noted, however, that Mother stated she was prescribed Doxin,
Hydroxyzine, Trileptal, and Lortab.
In October 2020, the Juvenile Court entered its final judgment. The Juvenile Court
found, by clear and convincing evidence, that multiple grounds for termination of parental
rights were proven against Mother, to wit: (1) abandonment by failure to visit;2 (2)
abandonment by failure to establish a suitable home; (3) abandonment by wanton
disregard; (4) persistent conditions; (5) severe child abuse; and (6) failure to manifest an
ability and willingness to assume custody. The Juvenile Court also found by clear and
convincing evidence that termination of Mother’s parental rights is in the Children’s best
interest. In its final judgment, the Juvenile Court found and held, in pertinent part:
2
As we discuss further herein, there was some ambiguity as to whether the Juvenile Court found the ground
of failure to visit, failure to visit by incarcerated parent, or both.
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6. Per testimony and stipulated documentary evidence, admitted into the
record (See Exhibits 4(a), (b)[,] (c), (e), and (j)[)], respectively, the Court
finds as follows:
a. [In March 2019], the Department received a report regarding newborn
twins, Jadyn [H.] and Jordyn [H.]. The report indicated that the children
were drug exposed. The twins were born prematurely … at twenty-seven
(27) weeks, four (4) days gestation.
b. The children’s mother, [Mother], admitted to the use of cocaine. The
Mother’s urine drug screens on February 26, 2019 (a prenatal visit), March
… 2019, April 12, 2019, and November 4, 2019 were positive for cocaine.
c. Jadyn’s urine drug screen was positive for cocaine at birth; Jordyn was
unable to be tested due to an insufficient amount of urine. Meconium results
for Jadyn were positive for cocaine; Jordyn’s meconium results were
negative.
d. DCS Investigator Cook finally made contact with the children’s mother,
[Mother], on April 3, 2019. Several previous attempts to contact [Mother]
had been unsuccessful. [Mother] reported that she was homeless, living from
house to house and that she had been using cocaine for seven (7) months,
including during her pregnancy with the twins.
e. However, it was noted on the termination hearing date that [Mother] stated
she did not use cocaine during her pregnancy, but this statement contradicted
[Mother’s] statements to the DCS worker as set out above; as well, as the
medical records which had been previously [entered] into evidence without
objection on February 13, 2020. [Mother’s] statement also was contrary to
the prenatal records. The Court thus finds that [Mother’s] testimony on this
issue [was] not credible.
f. Also, on April 3, 2019, [Mother] declined a urine drug screen, and reported
that the last time she had used cocaine was on March 31, 2019.
g. [Mother] indicated that she wanted help for her substance abuse, including
rehabilitation treatment at an inpatient facility.
h. DCS made reasonable efforts to locate a rehabilitation facility for [Mother]
near the twins, who were in the NICU at a Jackson, Tennessee hospital.
Contact was made with Aspell Manor, Mother’s Love, and The Dream
Center. All these facilities were located in Jackson, Tennessee. The Dream
Center would have accepted [Mother] and the twins upon their discharge;
however, [Mother] failed to complete the necessary paperwork and interview
process with the facility. Numerous attempts to contact [Mother] by phone
for follow-up were unsuccessful. [Mother] indicated that her mother, Gladys
[B.], was the only possible placement option and that she had no other family
members. When Ms. [B.] was contacted, she stated that she indicated that
she could not serve as a placement option for the children.
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i. [Mother] testified that she attended Buffalo Valley rehabilitation program
located in Jackson[,] Tennessee. She received a Psychological assessment
and Alcohol and drug assessment at Buffalo Valley. She also received
mental health treatment with Dr. Osborn in Dyersburg Tennessee and
attended, but did not complete, Parenting classes. It was disputed that
[Mother] made the Department aware of the tasks she had completed which
were requirements of the permanency plan, but even viewed in the light most
favorable to [Mother], she was not compliant with the permanency plan.
j. [Mother] also stated that she lives with her mother and is not homeless, but
the proof at trial did not support this (see subsection “m”, infra).
k. Medical records identified in Exhibit 4(j) without objection, also indicated
that the Mother admitted to using cocaine approximately four (4) hours
before she went into labor with the children.
1. Pursuant to Exhibit 4 (j), both children were assessed by Dr. Lisa Piercy.
Dr. Piercy’s assessment provided that both children were victims of “severe
physical abuse, secondary to drug exposure.”
m. Also, pursuant to Exhibit 4(j), the Mother had previously stated that she
was homeless and did not have the appropriate supplies to care for the twins.
n. At the February 13, 2020 hearing, [the] Court found that the children,
Jordyn and Jadyn [H.], suffered from abuse and/or neglect and therefore
pursuant to T.C.A. § 37-1-129(a)(2) found that the children were victims of
severe child abuse as defined at T.C.A. § 37-1-102(b)(27), perpetrated by
their Mother, [Mother].
***
A. ABANDONMENT: FAILURE TO VISIT AND FAILURE TO SUPPORT
16. The Court finds by clear and convincing evidence that the Respondent
mother, [Mother], abandoned her children.
17. The Court finds, via testimony of the Department’s witness and the
record as a whole, that for a period of four (4) consecutive months
immediately preceding the filing of this petition, the Respondent mother,
[Mother], failed to visit her children.
18. Jadyn entered into the Department’s custody on May 28, 2019. Jordyn
entered the Department’s custody on June 4, 2019.
19. During the fourteen (14) months that the children have been in DCS
custody, other than some telephone calls to the foster parents to inquire about
the children and one visit with one of the children when said child was
receiving a medical treatment, the Respondent mother, [Mother], has not
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visited with the children. The Court finds that [Mother’s] actions amount to
mere token visits.
20. The Court finds that the Respondent mother, [Mother], was aware of her
duty to visit her children, and other than as set out above, she made no
attempts to visit with her children and that she provided no justifiable excuse
for her failure to visit.
21. The Court finds that the Respondent mother, [Mother], had been advised
on July 9, 2019, that abandonment is a ground for the termination of parental
rights. The record revealed that [Mother] signed the criteria of Termination
of Parental Rights on July 9, 2019. [See Exhibit 4(f)].
22. Per documentary proof [Exhibit 4(j)], on February 13, 2020 the
Department was relieved of reasonable efforts after a finding of severe abuse.
Prior to being relieved of reasonable efforts, the Department made reasonable
efforts to assist the Respondent mother, [Mother], in visiting the children
including, but not limited to: attempting to maintain contact with the Mother
and explaining to the Mother that in order to begin visitation with the
children, she needed to make an appearance before the Court to assess her
condition and safety issues for the children.
23. The record does not reveal that the Respondent mother, [Mother], ever
made an appearance before the Court to request visitation with her children.
24. The Department pled in its Termination of Parental Rights Petition, that
if the proof showed that the Respondent mother, [Mother], had been
incarcerated for any amount of time during the four (4) months prior to the
filing of the Petition, then the Department pled in the alternative that
[Mother] abandoned the children by willful failure to visit the children for
four (4) months preceding incarceration, and that she engaged in such
conduct prior to incarceration as to exhibit a wanton disregard for the welfare
of the children.
25. Proof at trial revealed that the Respondent mother, [Mother], had, in fact,
been incarcerated from November 4-14, 2019. The Termination Petition was
filed on March 16, 2020, which indicated that [Mother] had been incarcerated
within four (4) months of the filing of said Petition.
26. The Court finds that other than the token visits set out above, the
Respondent mother, [Mother], had not visited her children within four (4)
months preceding her incarceration, and further found that she engaged in
such conduct prior to incarceration as to exhibit a wanton disregard for the
welfare of the children.
27. The Court finds that the Department had by clear and convincing
evidence proven the ground of abandonment by failure to visit the children.
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28. The Department withdrew the ground of abandonment by failure to
support. As a result of withdrawing said ground, the Department did not
prove that ground by clear and convincing evidence.
B. ABANDONMENT: FAILURE TO ESTABLISH A SUITABLE HOME
29. The Court finds that on May 28, 2019 and June 4, 2019, respectively, the
children were removed from the home of the Respondent mother, [Mother],
and were thereafter adjudicated dependent and neglected by the Juvenile
Court. The Juvenile Court found that the Department made reasonable
efforts to prevent the removal of the children or that the circumstances of the
children’s situations prevented reasonable efforts from being made prior to
the children’s removal.
30. The Court finds that for a period of four (4) months following removal,
the Department made reasonable efforts to assist the Respondent mother,
[Mother], in establishing a suitable home for the children, but the Respondent
mother’s failure to make even minimal efforts to improve the home
circumstances and her own personal conditions demonstrates a lack of
concern for the children to such a degree that it appears unlikely that a
suitable home will be provided by the Respondent mother at an early date.
31. The Court finds that the Respondent mother, [Mother], has not had stable
housing during the pendency of this case. In fact, at one period of time, the
Respondent mother acknowledged that she was homeless.
32. Therefore, the Court finds by clear and convincing evidence that the
Respondent mother, [Mother], abandoned her children by the failure to
establish suitable housing.
C. CONDITIONS STILL EXIST THAT PREVENT RETURN
33. As stated earlier, the Court finds that on May 28, 2019 and June 4, 2019,
respectively, that the children were removed from the home of the
Respondent mother, [Mother], and were thereafter adjudicated dependent
and neglected by the Juvenile Court. The Juvenile Court found that the
Department made reasonable efforts to prevent removal of the children or
that the circumstances of the children’s situations prevented reasonable
efforts from being made prior to the children’s removal.
34. The Court finds that the children have been removed from the custody of
the Respondent mother for more than six (6) months;
35. The Court finds that the conditions which led to the removal of the
children from the home of the Respondent mother, [Mother], still exist and
other conditions exist which in all probability would cause the children to be
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subject to further abuse and/or neglect, making it unlikely that the children
could be returned to the Respondent mother in the near future;
36. The Court finds that there is little likelihood that these conditions will be
remedied at an early date so that the children can be returned to the
Respondent mother, [Mother], in the near future; the continuation of the
parent or guardian and child/ren relationship greatly diminishes the
children’s chance of an early integration into a stable and permanent home.
37. The conditions that prevent the children’s return to the Respondent
mother’s home are the following:
a. The Respondent mother does not have residential stability and continues
to reside with various friends and/or relatives.
b. On the hearing date, the Respondent mother stated that she resided at….
However, when cross-examined, the Respondent mother admitted that the …
address was actually the address of her own mother (the children’s maternal
grandmother).
c. Furthermore, the maternal grandmother resides in a one-bedroom
apartment with [Mother’s] oldest son. There is not sufficient space in the
maternal grandmother’s home for the Respondent mother and the children
who are the subject of this proceeding.
d. The Respondent mother then testified that she resided with her adult
daughter, but was unable to provide the address of that residence. However,
when cross examined, [Mother] admitted that she is not included on her
daughter’s lease as a resident. In fact, [Mother] and her adult daughter had
been involved in a very recent altercation and that the Respondent mother
had been arrested as a result of the altercation.
e. The Court does not find the Respondent mother, [Mother], credible on the
issue of her residency.
f. The Respondent mother’s only source of income is her disability check.
g. The Respondent mother did not complete parenting classes.
h. The Respondent mother did complete A&D treatment at Buffalo Valley;
however, following treatment, tested positive for cocaine, opiates, and THC
on November 4, 2019.
i. The Mother did not complete a mental health assessment.
j. The Respondent mother did not make her whereabouts regularly known or
make herself available for drug screens.
k. The Respondent mother continues to test positive for illegal drugs and
tested positive for THC and opiates on the termination hearing date.
l. The Respondent mother was arrested on the hearing date and housed at the
Lauderdale County Correctional Facility.
38. The Department made reasonable efforts to assist in complying with the
requirements in the permanency plan by providing and/or assisting with the
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following, including but not limited to; the Respondent mother was provided
information regarding housing and a location to complete parenting classes;
the Respondent mother was provided information as to where to apply for
financial assistance to obtain housing; the Respondent mother was
transported to Here’s Hope to complete an A&D assessment; and the
Department administered random drug screens to the Respondent mother
when she, on occasion, made her whereabouts known.
39. The requirements relative to the Respondent mother’s sobriety and
stability are particularly important in reducing the risk of harm to the children
so that the children could be safely returned to the parent’s care, given the
mother’s history on these issues and the children’s vulnerable health
conditions. The Respondent mother’s compliance with A&D treatment is a
critical step in her ability to demonstrate sobriety.
40. In addition, the Respondent mother continues to test positive for illegal
drugs, having tested positive for marijuana on the hearing date. The
Respondent mother continues to violate the law by engaging in a physical
altercation with her adult child which resulted in her arrest (a short time prior
to the termination hearing); and coupled with another arrest on the actual
termination hearing date.
41. The Respondent mother continues not to have stable housing and is living
from “pillar to post” with one relative after another.
42. As set out in Exhibit 4(j), the Respondent Mother does not have custody
of her two other minor children, ….
43. Prior to being relieved of reasonable efforts, the Court finds that the
Department made reasonable efforts to rectify the conditions that led to the
children’s removal.
44. The Court finds that the Department had met this ground of conditions
that continue to exist (persistence of conditions) by clear and convincing
evidence.
D. SEVERE CHILD ABUSE
45. The children, Jordyn and Jadyn [H.] were prenatally exposed to cocaine.
46. As set out in Exhibit 4(j), based on the testimony and the exhibits, the
Court found on the basis of clear and convincing evidence that [Mother]
committed severe child abuse as defined by Tennessee Code Annotated § 37-
1-102 against a child/ren who is/are the subject of this Petition or any sibling
or half sibling of such child/ren or any child/ren residing temporarily or
permanently in his/their home.
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47. Pursuant to Exhibit 4 (j), both children were assessed by Dr. Lisa Piercy.
Dr. Piercy’s assessment provided that both children were victims of “severe
physical abuse, secondary to drug exposure.”
48. On February 13, 2020, the Juvenile Court of Lauderdale County,
Tennessee found the above-named children, Jordyn and Jadyn [H.], to be the
victims of severe child abuse as defined by § 37-1-102, perpetrated by the
Mother, [Mother].
49. The Court finds that the prior finding of severe abuse was not appealed
and is res judicata.
50. The Court finds that the Department met this ground of severe abuse by
clear and convincing evidence.
E. FAILURE TO MANIFEST ABILITY AND WILLINGNESS TO ASSUME
CUSTODY
51. The Court finds by clear and convincing evidence that the Respondent
mother, [Mother], the children’s legal parent, failed to manifest, by act or
omission, an ability or willingness to personally assume legal and physical
custody or financial responsibility of the children, and placing the children
in [Mother’s] legal and physical custody would pose a risk of substantial
harm to the physical or psychological welfare of the children.
52. The Court found that [Mother’s] actions during the time that the children
have been in custody were token visits. Specifically, other than some
telephone calls to the foster parents to inquire about the children and one visit
with one of the children, when said child was receiving a medical visit,
[Mother] has not visited with the children.
53. [Mother] is not drug free and has not maintained her sobriety during the
fourteen (14) months that the children have been in DCS custody.
54. [Mother] continues to test positive for cocaine and other illegal services
[sic]. [Mother] tested positive for THC and opiates on the termination
hearing date.
55. [Mother] continues to violate the law and to be incarcerated, so that she
is not available to act as custodian for her children. [Mother] was
incarcerated from November 4-14, 2020 [sic]. A short time prior to the
termination hearing, [Mother] was arrested for a physical altercation with her
adult daughter. Further, on the hearing date, [Mother] was arrested.
56. The Court found that [Mother’s] instability of housing, her history of
illegal drug use and substance abuse and her three (3) recent incarcerations,
are indicators of her failure to manifest an ability or willingness to assume
legal and physical custody or financial ability for these children.
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57. The Court found that placing these children in [Mother’s] legal or
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of these children.
58. The Court found that the Department by clear and convincing [evidence]
proved the ground of failure to manifest an ability and willingness to assume
custody of her children.
F. SUBSTANTIAL NON-COMPLIANCE WITH THE PERMANENCY
PLAN(S):
59. The Department voluntarily dismissed this ground on the hearing date.
Consequently, this ground was not met by clear and convincing evidence.
BEST INTEREST
60. [Mother] has not made an adjustment of circumstances, conduct or
conditions as to make it safe and in the children’s best interest to be in the
home of the parent.
61. [Mother] has not maintained regular visitation or other contact with the
children. [Mother’s] contact/visitation is token at best.
62. A meaningful relationship has not otherwise been established between
the children and the Mother.
63. The Mother has not completed parenting classes.
64. The Mother did complete A&D treatment at Buffalo Valley however,
following treatment, tested positive for cocaine, opiates, and THC on
November 4, 2019.
65. The Mother has not completed a mental health assessment.
66. The Mother has not made her whereabouts regularly known or made
herself available for drug screens.
67. [Mother] continues to test positive for illegal drugs and tested positive
for THC and opiates on the termination hearing date.
68. The children, Jadyn and Jordyn, are victims of severe abuse perpetrated
by [their] Mother. The basis of the severe abuse finding was that the children
tested positive for and/or were exposed prenatally to cocaine.
69. [Mother] continues to violate the law. [Mother] was incarcerated from
November 4-14, 2020 [sic]. A short time prior to the hearing, [Mother] was
arrested for a physical altercation with her adult daughter. Further, on the
hearing date, [Mother] was arrested.
70. The Mother does not have stable housing and continues to live with
various relatives.
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71. [Mother] has not manifested an ability or willingness to assume the legal
and physical custody of the children.
72. The Court found that placing these children in the Mother’s legal or
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of these children.
73. The children are placed in a foster home where the foster parents are
bonded with the children, capable of providing for their physical, mental, and
emotional welfare, and wish to adopt the children.
74. The children have established a strong bond with the foster parents.
75. The foster parent “roomed in” with the children in the NICU prior to their
discharge from the hospital. The children were discharged from the hospital
in the foster parents’ care and have remained continuously in their care since
that time.
76. The foster parents are the only parents that these children know.
77. The record is clear that DCS made reasonable efforts in this case.
78. The Court thus finds by clear and convincing evidence that it is in the
best interests of the above children that the Termination of Parental Rights
Petition is granted/sustained as to the Respondent.
79. The Guardian Ad Litem agreed that the Termination of Parental Rights
is in the children’s best interests.
Mother timely appealed to this Court.
Discussion
Although not stated exactly as such, Mother raises the following issues on appeal:
1) whether the Juvenile Court erred in finding each of the grounds it found for termination
of Mother’s parental rights by the standard of clear and convincing evidence; and 2)
whether the Juvenile Court erred in finding, also by the standard of clear and convincing
evidence, that termination of Mother’s parental rights is in the Children’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clauses of the federal and state constitutions.3 Troxel v.
3
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
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Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136
L.Ed.2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. 1388.
Termination of parental rights has the legal effect of reducing the parent to
the role of a complete stranger and of “severing forever all legal rights and
obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-
113(l)(1); see also Santosky, 455 U.S. at 759, 102 S.Ct. 1388 (recognizing
that a decision terminating parental rights is “final and irrevocable”). In light
of the interests and consequences at stake, parents are constitutionally
entitled to “fundamentally fair procedures” in termination proceedings.
Santosky, 455 U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). “Clear and convincing evidence enables the fact-finder to
form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
the law of the land.”
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factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than not.
In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R.,
183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds4 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is separate
from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
Although several factors relevant to the best interests analysis are statutorily
enumerated,5 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
4
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
5
Tenn. Code Ann. § 36-1-113(i).
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Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n. 15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97. The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion
of law, which appellate courts review de novo with no presumption of
correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
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parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
In her first issue on appeal, Mother ostensibly challenges each of the grounds found
against her. However, in the argument section of her appellate brief, Mother only
specifically challenges the ground of persistent conditions. The Tennessee Supreme Court
has instructed “that in an appeal from an order terminating parental rights the Court of
Appeals must review the trial court’s findings as to each ground for termination and as to
whether termination is in the child’s best interests, regardless of whether the parent
challenges these findings on appeal.” In re Carrington H., 483 S.W.3d at 525-26 (footnote
omitted). Therefore, in accordance with the Tennessee Supreme Court’s holding in In re
Carrington H., we will review each of the grounds found against Mother, whether she
specifically argues them or not. We note further that two grounds originally pled by DCS—
abandonment by failure to support and substantial noncompliance with the permanency
plan—were voluntarily withdrawn by DCS.
On March 16, 2020, when DCS filed its petition against Mother, the relevant
grounds for termination of parental rights were set out by statute as follows:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and nonexclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
***
(3)(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;
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(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;
(4) The parent or guardian has been found to have committed severe child
abuse, as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against any child;
***
(14) A parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or financial
responsibility of the child, and placing the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child;
Tenn. Code Ann. § 36-1-113(g) (West March 6, 2020 to April 21, 2021).
In addition, the applicable definitions of abandonment were set out by statute as
follows:
(1)(A) For purposes of terminating the parental or guardian rights of a parent
or parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
(i) 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;
(ii)(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
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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;
***
(iv) A parent or guardian is incarcerated at the time of the filing of a
proceeding, pleading, petition, or amended petition to terminate the parental
rights of the parent or guardian of the child who is the subject of the petition
for termination of parental rights or adoption, or a parent or guardian has
been incarcerated during all or part of the four (4) consecutive months
immediately preceding the filing of the action and has:
(a) Failed to visit, has failed to support, or has failed to make reasonable
payments toward the support of the child for four (4) consecutive months
immediately preceding the parent’s or guardian’s incarceration;
(b) Failed to visit, has failed to support, or has failed to make reasonable
payments toward the support of the child during an aggregation of the first
one hundred twenty (120) days of non-incarceration immediately preceding
the filing of the action; or
(c) Has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child; …
***
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(C) For purposes of this subdivision (1), “token visitation” means that the
visitation, under the circumstances of the individual case, 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;
***
(E) For purposes of this subdivision (1), “failed to visit” means 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;
***
(I) For purposes of this subdivision (1), 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;
Tenn. Code Ann. § 36-1-102(1) (West March 6, 2020 to June 30, 2021).
We first address whether the Juvenile Court erred in finding the ground of
abandonment by wanton disregard. DCS concedes that this ground was found in error.
DCS filed its petition against Mother on March 16, 2020. Prior to the filing date, Mother
was incarcerated from November 4, 2019 through November 14, 2019. The pertinent
window of time for this ground was November 16, 2019 through March 15, 2020. See In
re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App.
Feb. 20, 2014), no appl. perm. appeal filed (“[T]he applicable four month window ...
includes the four months preceding the day the petition ... is filed but excludes the day the
petition is filed.”). Because Mother was not incarcerated during the four months
immediately preceding the filing of DCS’s petition, the ground of abandonment by wanton
disregard is inapplicable; the Juvenile Court erred in finding it was proven by clear and
convincing evidence. We, therefore, vacate the ground of abandonment by wanton
disregard.
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We next address whether the Juvenile Court erred in finding the ground of
abandonment by failure to visit. In its final judgment, the Juvenile Court appeared to find
both the grounds of failure to visit and failure to visit by an incarcerated parent.6 One or
the other type of failure to visit may apply, but not both. As discussed above in relation to
the ground of abandonment by wanton disregard, Mother was not incarcerated during the
four months immediately preceding the filing of DCS’s petition. The grounds found at
Tenn. Code Ann. § 36-1-102(1)(A)(iv) for incarcerated parents simply do not apply in this
case to Mother. We, therefore, vacate the ground of failure to visit by incarcerated parent.
DCS argues nevertheless that the ground of failure to visit, as found at Tenn. Code
Ann. § 36-1-102(1)(A)(i), should be upheld because the evidence reflects that Mother
failed to visit the Children during the four months preceding the filing of the petition.
Mother’s permanency plan called for supervised visitation. The Juvenile Court found that
Mother never appeared before it to request visitation. While Mother asserts that DCS
unilaterally determined after a point that Mother could not visit the Children, the evidence
reflects instead that Mother failed to take any action to set up a visitation regime. Mother
was not barred outright from visiting the Children; she simply did not pursue visitation. In
addition, the Juvenile Court found that the visitation Mother did engage in amounted to
mere token visitation. The evidence does not preponderate against the Juvenile Court’s
findings relative to this ground. We find, as did the Juvenile Court, that the ground of
failure to visit—as found at Tenn. Code Ann. § 36-1-102(1)(A)(i)—was proven by clear
and convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of
abandonment by failure to establish a suitable home. Jadyn was removed from Mother’s
custody on May 28, 2019; Jordyn was removed on June 4, 2019. The Children entered
DCS custody and were found dependent and neglected. The Juvenile Court found that
DCS made reasonable efforts to prevent removal and to assist Mother in establishing a
suitable home for the Children. The Juvenile Court found that Mother, on the other hand,
failed to make even “minimal efforts” to improve her home circumstances. The Juvenile
Court found further that Mother’s “own personal conditions demonstrates a lack of concern
for the children to such a degree that it appears unlikely that a suitable home will be
provided by the Respondent mother at an early date.” The evidence does not preponderate
against these findings. We find, as did the Juvenile Court, that the ground of abandonment
by failure to establish a suitable home was proven by clear and convincing evidence.
6
The Juvenile Court stated at one point in its final judgment: “For a period of four (4) consecutive months
immediately preceding the filing of this petition, the Mother has failed to visit the children and/or that the
one visit with one of the children during a medical visit was a token visit.” Elsewhere, the Juvenile Court
stated: “[Mother] was incarcerated on November 4-14, 2019, said dates of incarceration are within the four
months preceding filing of this petition. Other than the token visit set out above, [Mother] abandoned the
children by the willful failure to visit the children for four (4) months preceding incarceration….”
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We next address whether the Juvenile Court erred in finding the ground of persistent
conditions. Jadyn and Jordyn were removed from Mother’s custody on May 28, 2019 and
June 4, 2019, respectively. DCS filed its termination petition on March 16, 2020. The
termination hearing was held on August 10, 2020, more than six months after the
Children’s removal. To reiterate, the Children entered DCS custody on the basis of drug
exposure by Mother, specifically cocaine. Regrettably, Mother’s abuse of drugs has
persisted over the custodial episode. Mother continued to abuse drugs after participating
in rehabilitation programs. Mother used cocaine while pregnant with the Children; used
cocaine on the day she gave birth to the Children; and tested positive for cocaine as late as
November of 2019. On the day of the termination hearing, Mother tested positive for THC.
Mother’s drug abuse never abated. In addition, Mother’s lack of suitable housing is another
condition likely to lead to further abuse and neglect of the Children. Mother has no stable
housing. Indeed, Mother was arrested on the day of the termination hearing for violation
of probation based upon an altercation with her daughter, the same daughter she stated she
could live with after the hearing. The record contains no hint that Mother will be in a
position to safely parent the Children any time soon. Meanwhile, the evidence reflects that
the Children are thriving in their foster home, which they have lived in since they were
discharged from the hospital. The evidence does not preponderate against the Juvenile
Court’s findings as to this ground. We find, as did the Juvenile Court, that the ground of
persistent conditions was proven by clear and convincing evidence.
Continuing our review of grounds for termination, we next address whether the
Juvenile Court erred in finding the ground of severe child abuse. We have previously
determined that a prior finding by a juvenile court in dependency and neglect proceedings
can be res judicata in parental rights termination proceedings. See In re Dakota C.R., 404
S.W.3d 484, 497 (Tenn. Ct. App. 2012). In those cases, the doctrine of res judicata
prevents the issue from being re-litigated in the subsequent parental rights termination
proceeding. Id. In March 2020, the Juvenile Court entered an order finding that the
Children were victims of severe child abuse perpetrated by Mother as defined at Tenn.
Code Ann. § 37-1-102(b)(27). The record contains no evidence that Mother ever appealed
the finding of severe child abuse. Mother did not challenge the finality or validity of the
order finding severe child abuse either in the proceedings below or on appeal. Res judicata
thus applies to this ground. In view of these facts, we find, as did the Juvenile Court, that
the ground of severe child abuse was proven by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of failure
to manifest an ability and willingness to assume custody. With respect to this ground, our
Supreme Court has explained that “[i]f 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
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659, 677 (Tenn. 2020) (emphasis in original, citation omitted). The second prong of the
statute requires us to consider whether placing the child in the person’s legal and physical
custody would pose a risk of substantial harm to the physical or psychological welfare of
the child.
Here, the Juvenile Court found that Mother manifested neither the ability nor the
willingness to assume custody of the Children. The record bolsters this finding. Mother
failed to visit the Children or request visitation; continued to abuse drugs; never obtained
suitable housing; and continued to incur criminal charges. Mother’s actions and inactions
show both an unwillingness and inability to assume custody of the Children. The Juvenile
Court found further that placing the Children in Mother’s legal or physical custody would
pose a risk of substantial harm to the physical or psychological welfare of the Children.
This finding, too, is well-supported, as the record reflects that the Children are thriving in
their foster home while Mother continues to struggle with her longstanding issues relating
to drugs and housing. The danger to the Children were they to be removed from their stable
environment and placed in Mother’s care is manifest. The evidence does not preponderate
against the Juvenile Court’s findings with respect to either prong of this ground. We find,
as did the Juvenile Court, that the ground of failure to manifest an ability and willingness
to assume custody was proven against Mother by clear and convincing evidence.
The final issue we address is whether the Juvenile Court erred in finding that
termination of Mother’s parental rights is in the Children’s best interest. When DCS filed
its petition on March 16, 2020, the statutory best interest factors read as follows:
(i) In determining whether termination of parental or guardianship rights is
in the best interest of the child pursuant to this part, the court shall consider,
but is 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
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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) (West March 6, 2020 to April 21, 2021).
With regard to making a determination concerning a child’s best interest, the
Tennessee Supreme Court has instructed:
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at 861). “After making
the underlying factual findings, the trial court should then consider the
combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interest[s].”
Id. When considering these statutory factors, courts must remember that
“[t]he child’s best interests [are] viewed from the child’s, rather than the
parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. Indeed, “[a]
focus on the perspective of the child is the common theme” evident in all of
the statutory factors. Id. “[W]hen the best interests of the child and those of
the adults are in conflict, such conflict shall always be resolved to favor the
rights and the best interests of the child. . . .” Tenn. Code Ann. § 36-1-101(d)
(2017).
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Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the
circumstances of a particular child and a particular parent, the consideration
of one factor may very well dictate the outcome of the analysis.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
Unfortunately, Mother’s circumstances did not materially improve over the course
of the custodial episode. Indeed, Mother was arrested for a violation of probation on the
day of the termination hearing in connection with a violent altercation with her daughter
(whose home Mother had identified as a suitable home for the Children), all the while
testing positive for THC in court. The Juvenile Court made findings corresponding to best
interest factors (1)-(8).7 The evidence does not preponderate against any of the Juvenile
Court’s findings relative to the Children’s best interest. Mother has an unresolved drug
issue; lacks suitable housing; and has continued to incur criminal charges. Mother did not
try to establish visitation with the Children; she has no meaningful relationship with the
Children. Mother effectively is a stranger to the Children. Perhaps most significantly, the
Children are victims of severe child abuse perpetrated by Mother. The Children are now
recovering in their foster home after this inauspicious start to life at the hands of Mother.
7
With respect to factor (9) concerning child support, Mother’s payment or non-payment of child support
consistent with the Guidelines was not made an issue, and DCS withdrew the ground of failure to support.
The evidence reflects that Mother draws a Social Security disability check. At best, this particular factor is
non-applicable; it certainly does not weigh in favor of preserving Mother’s parental rights to the Children.
Nevertheless, we are satisfied the Juvenile Court considered all of the statutory factors and all of the proof
before it as to the Children’s best interest.
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The Children need and deserve permanency. Mother’s ongoing, persistent issues reflect
that it is highly unlikely the Children could achieve that permanency with her. We find by
clear and convincing evidence, as did the Juvenile Court, that termination of Mother’s
parental rights is in the Children’s best interest.
Conclusion
The judgment of the Juvenile Court is affirmed as modified, the result of which
being we affirm the termination of Erica H.’s parental rights. This cause is remanded to
the Juvenile Court for collection of the costs below. The costs on appeal are assessed
against the Appellant, Erica H., and her surety, if any.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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