In Re Seth Mc. ( 2018 )

06/20/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 1, 2018
IN RE SETH MC. ET AL.
Appeal from the Juvenile Court for Dickson County
No. 04-17-051-CC Michael Meise, Judge
No. M2017-02562-COA-R3-PT
A mother of four children had her parental rights terminated based on the grounds of
abandonment by failure to support, abandonment by failure to provide a suitable home,
abandonment by wanton disregard, substantial noncompliance with permanency plans,
severe child abuse, and persistence of conditions. Mother appealed the trial court’s
judgment. We affirm the termination of her rights as to all grounds other than
abandonment by failure to support, abandonment by failure to provide a suitable home,
and persistence of conditions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Reversed in Part, and Vacated in Part
ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and JOHN W. MCCLARTY, J., joined.
Taylor Reigh Luther, Dickson, Tennessee, for the appellant, Ashley R.
Herbert H. Slatery, III, Attorney General and Reporter, and Jordan Keith Crews, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
Ashley R. (“Mother”) is the mother of Seth Mc. (born in 2007), Bentley Mc. (born
in 2012), Kaitlynn R. (born in 2015), and Morgan R. (born in 2016).1 On February 23,
2016, the Department of Children’s Services (“DCS” or “the Department”) received a
1
The children’s fathers have waived their parental rights and are not parties to this appeal.
referral alleging that the older three children were being exposed to methamphetamines.
Mother may have been pregnant with Morgan at this point. DCS subsequently located
the children at their maternal grandmother’s house and arranged for two of them to
undergo a hair follicle test. The children tested positive for methamphetamines and
amphetamines.
The Department filed a petition on March 29, 2016, to adjudicate the dependency
and neglect of Seth, Bentley, and Kaitlynn, and to transfer temporary legal custody of the
children to DCS. The trial court issued an ex parte protective custody order that same
day, finding there was probable cause to believe the children were dependent and
neglected, and DCS placed the children with Mother’s aunt. The Department prepared a
Family Permanency Plan on April 25, 2016. Mother signed the permanency plan and
acknowledged that she had received a copy of the “Criteria and Procedure for
Termination of Parental Rights.”
Mother attended in-patient treatment in April and May 2016 and successfully
completed the program. One of Mother’s discharge recommendations was to attend
ninety sessions of Alcoholics Anonymous in ninety days. Mother testified that she
attended only “a couple” of meetings.
The trial court held a preliminary hearing on June 29, 2016, to consider DCS’s
dependency and neglect petition. Mother’s attorney was present for the hearing, but
Mother was not. The court wrote in its order that Mother “reportedly finished her rehab
in early June, visited with the children one time and has not been heard from since.” The
DCS representative informed the court that Mother was not in contact with DCS and
asked the court to disallow further visitation of the children by Mother at that time. The
trial court ordered that the children would continue to be in the temporary care and
custody of DCS and that Mother would have no contact with the children pending further
orders of the court.
The trial court held an adjudicatory/severe abuse hearing on October 19, 2016.
Mother was present for this hearing and stipulated that the children were dependent and
neglected on March 29 when they were removed from her home. The Department
introduced evidence of severe abuse based on the children’s exposure to
methamphetamine, which DCS alleged Mother was producing in her home when the
children were removed. The Department also indicated that “Mother has done well”
since the earlier hearing and asked that Mother be permitted to have unsupervised
visitation with the children at DCS’s discretion. The court entered a final order that the
children were dependent and neglected when they were removed from Mother’s home
and ordered that DCS would continue to have temporary care and custody of the children.
The court took the issue of severe abuse under advisement and allowed Mother to begin
unsupervised visitation at DCS’s discretion. The court entered an order on December 29,
2016, finding the children were victims of severe abuse pursuant to Tenn. Code Ann.
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§ 37-1-102(b)(22)(D).2 The Department informed the court that Mother admitted that she
had “relapsed,” and the court ordered that Mother have four hours of supervised visitation
weekly with the children.
Mother gave birth to Morgan in November 2016, and the baby tested positive for
amphetamine and methamphetamine. Mother tested positive for amphetamine upon her
admission to the hospital. The Department filed a petition on December 14, 2016, to
adjudicate Morgan dependent and neglected and to transfer her temporary custody to
DCS. DCS asserted that Morgan was a victim of severe child abuse due to her exposure
to methamphetamines and amphetamines in utero. The trial court held an ex parte
hearing and entered a protective custody order that same day. Morgan was placed with
Mother’s great aunt, alongside her three siblings. On December 16, two days after
Morgan was placed into DCS’s custody, Mother tested positive for methamphetamines
based on an oral swab. On December 22, she tested positive for methamphetamines as a
result of a hair follicle test.
The trial court held a preliminary hearing on January 11, 2017, to consider DCS’s
dependency and neglect petition as to Morgan. Mother was notified of the hearing, but
she did not attend. The trial court ordered that Morgan’s temporary custody would
remain with DCS and that Mother would be permitted supervised visitation with Morgan
at DCS’s discretion. Mother was ordered to pay child support of $50 per month for
Morgan. The court found Morgan to be dependent and neglected and a victim of severe
child abuse while in Mother’s care and custody in June 2017.
The Department prepared another permanency plan dated January 5, 2017, that
covered all the children, including Morgan, and identified the goals as “return to parent”
and “exit to kin.” This second permanency plan was very similar to the earlier plan. By
the time the second plan was prepared, Mother’s great aunt’s house had become a “fully
approved home” for the children’s placement. The trial court ratified this permanency
plan on May 3, 2017, finding that the plan was reasonable, it included reasonable goals
for the children, the responsibilities for Mother were reasonably related to achieving the
goals of the plan, and the goals were in the children’s best interest.
The Department filed a petition to terminate Mother’s parental rights to Seth,
Bentley, Kaitlynn, and Morgan on April 27, 2017. The grounds for termination included
abandonment by willful failure to support, abandonment by willful failure to provide a
suitable home, abandonment by wanton disregard, substantial noncompliance with the
permanency plan, severe child abuse, and persistent conditions.
2
The trial court mistakenly referred to Tenn. Code Ann. § 37-1-1-3(22)(d) rather than § 37-1-
102(b)(22)(D).
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A trial took place on August 24, 2017, during which Mother, a DCS case worker,
and Mother’s great aunt (the foster mother) testified. The trial court filed an order
terminating Mother’s rights to the children on December 5, 2017. In its order, the court
wrote that it had adjudicated Seth, Bentley, and Kaitlynn dependent and neglected in
October 2016 based on Mother’s stipulation that the children were dependent and
neglected and that it subsequently found the children were victims of severe child abuse
due to exposure to illegal drugs while in Mother’s care and custody. The court then
found that there was clear and convincing evidence to support the grounds DCS included
in its petition and that terminating Mother’s parental rights was in the children’s best
interest.
Mother appealed the trial court’s order, arguing that the trial court erred in finding
(1) there was clear and convincing evidence to support the grounds for terminating her
parental rights and (2) that terminating her rights was in the children’s best interest.3
II. ANALYSIS
A. Standard of Review
The Tennessee Supreme Court has described the appellate review of parental
termination cases as follows:
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). 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 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.
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. Additionally, all other questions
of law in parental termination appeals, as in other appeals, are reviewed de
novo with no presumption of correctness.
3
DCS does not defend the ground of persistence of conditions on appeal, explaining that it failed to wait
the requisite six-month period after Morgan was removed from Mother’s care before filing its termination
petition. See Tenn. Code Ann. § 36-1-113(g)(3). A review of the record reveals that DCS is correct in its
assertion. Thus, we conclude that the trial court erred in terminating Mother’s parental rights based on
this ground.
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In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also
In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).
The termination of a parent’s rights is one of the most serious decisions courts
make. As the United States Supreme Court has said, “[f]ew consequences of judicial
action are so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S.
745, 787 (1982). Terminating 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.” Tenn. Code Ann. § 36-1-113(l)(1).
A parent has a fundamental right, based in both the federal and state constitutions,
to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d
674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn.
1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right “is 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
at 521 (citing U.S. CONST. amend. XIV, § 1; TENN. CONST. art. 1, § 8). While this right
is fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights
only in certain circumstances. Id.; In re Angela E., 303 S.W.3d at 250. Our legislature
has listed the grounds upon which termination proceedings may be brought. See Tenn.
Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303
S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent’s rights
may be terminated only where a statutory basis exists, Jones v. Garrett, 92 S.W.3d 835,
838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App.
1998).
To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah
S., 455 S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
“Clear and convincing evidence enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, and eliminates any serious or substantial doubt about the
correctness of these factual findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn.
2010) (citations omitted). “Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable.” In re Audrey
S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
Once a ground for termination is established by clear and convincing evidence, the
trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303
S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005); White v.
Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). “The best interests analysis is
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separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
B. Grounds for Termination
1. Abandonment by Failure to Support
One of the grounds the legislature has determined constitutes a basis for
terminating an individual’s parental rights is “abandonment,” as that term is defined in
Tenn. Code Ann. § 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). Section 36-1-
102(1)(A)(i) defines abandonment, in part, as a parent’s willful failure to support or make
reasonable payments towards the support of a child for a period of four consecutive
months immediately preceding the filing of a termination petition. If a parent is
incarcerated when the petition is filed, or if a parent is incarcerated during all or a part of
the four months immediately preceding the initiation of the termination proceeding,
abandonment by failure to support occurs if the parent willfully fails to support or make
reasonable payments towards the support of a child for four consecutive months
immediately prior to the parent’s incarceration. Tenn. Code Ann. § 36-1-102(1)(A)(iv).
“Willful conduct consists of acts or failures to act that are intentional or voluntary rather
than accidental or inadvertent.” In re Audrey S., 182 S.W.3d at 863. A parent’s failure to
support is “willful” if he or she has ‘“the capacity to provide the support, makes no
attempt to provide support, and has no justifiable excuse for not providing the support.”’
Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004)
(quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524,
at *5 (Tenn. Ct. App. Nov. 25, 2003)). If a parent’s failure to support is out of his or her
control, that parent’s failure will not be termed “willful.” In re Adoption of Angela E.,
402 S.W.3d 636, 640 (Tenn. 2013). Whether a parent failed to support a child is a
question of fact, but whether a parent’s failure to support a child was willful is a question
of law. Id.
The legislature presumes a parent who is at least eighteen years old is aware of his
or her legal obligation to support his or her child(ren), even if there is no court order
requiring the parent do so. Tenn. Code Ann. § 36-1-102(1)(H); David A. v. Wand T., No.
M2013-01327-COA-R3-PT, 2014 WL 644721, at *8 (Tenn. Ct. App. Feb. 18, 2014). A
parent’s failure to support his or her child(ren) during the relevant four-month period
cannot be cured by providing support after the termination petition is filed. Tenn. Code
Ann. § 36-1-102(1)(F).
The Department filed the termination petition on April 27, 2017. Mother was in
jail from sometime in March until the end of May 2017. Because Mother was in jail
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when the petition was filed, the relevant four-month period for purposes of Tenn. Code
Ann. § 36-1-102(1)(A)(iv) was four months prior to the day Mother went to jail in March
2017.4 Mother testified at trial that she had no medical or physical conditions that
prevented her from working. She testified that she earned money cleaning houses for a
few weeks while she was in Arkansas, but the record does not reflect how much Mother
earned in that pursuit. Mother also testified that she worked at the Holiday Inn part-time
earning $8 an hour for about three weeks before she was incarcerated in March 2017.
The evidence is undisputed that Mother paid nothing towards the support of her
children during the relevant four-month period. The only support Mother paid during the
pendency of this matter was $400 that her mother gave her to purge herself of contempt
in 2017, after the termination petition was filed. The trial court found that DCS proved
the ground of abandonment by failure to support by clear and convincing evidence. We
disagree. Although the record shows that Mother was aware of her responsibility to pay
child support, we find DCS failed to prove by clear and convincing evidence that Mother
had the capacity to pay support during the relevant period. “A parent who fails to support
a child because he or she is financially unable to do so is not willfully failing to support
the child.” In re Audrey S., 182 S.W.3d at 864 n.33; see In re M.J.B. & M.W.S., 140
S.W.3d 643, 655 (Tenn. Ct. App. 2004) (finding record lacked evidence that parent “had
any disposable resources that she could have used to support her children”).
The only evidence in the record regarding Mother’s income during the relevant
period is that she worked part-time at the Holiday Inn making $8 an hour and that she
cleaned houses in Arkansas for a few weeks. We don’t know how much she earned
cleaning houses. Mother testified that she lived in a tent and in a car following her in-
patient treatment and that she lived with family members in Arkansas at the end of
December 2016 and the first part of 2017. The record does not include firm dates of
when she lived in these various places, and Mother did not testify that she had any money
to pay for her living expenses. Without evidence to establish that Mother had the ability
to pay support for her children during the relevant time period, we conclude that DCS
failed to show by clear and convincing evidence that Mother failed to support or make
reasonable payments toward the support of her children to prove the ground of
abandonment set forth in Tenn. Code Ann. § 36-1-102(1)(A)(iv). Therefore, we reverse
the trial court’s termination on this ground.
2. Abandonment by Failure to Establish a Suitable Home
Tennessee Code Annotated section 36-1-102(1)(A)(ii) provides that a parent has
abandoned his or her child(ren) by failing to provide a suitable home when:
4
The record does not include the exact dates when Mother entered jail in March 2017 or when she left jail
in May 2017.
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The child has been removed from the home of the parent or parents or the
guardian or guardians as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as defined
in § 37-1-102, and the child was placed in the custody of the department or
a licensed child-placing agency, that 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 for a period of four (4) months following the removal, the
department or agency has 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 made
no 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 may be found to be reasonable if
such efforts 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.
This statute explicitly requires DCS to make reasonable efforts to help a parent
whose children have been removed to establish a suitable home for the children for a
period of four months following the children’s removal. This Court has found that this
statute requires DCS employees to ‘“use their superior insight and training to assist
parents with the problems the Department has identified in the permanency plan, whether
the parents ask for assistance or not.”’ In re Matthew T., No. M2015-00486-COA-R3-
PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016) (quoting Dep’t of
Children’s Servs. v. Estes, 284 S.W.3d 790, 800-01 (Tenn. Ct. App. 2008)); see also In re
Jamel H., No. E2014-02539-COA-R3-PT, 2015 WL 4197220, at *6 n.4 (Tenn. Ct. App.
July 13, 2015). A home is not suitable within the meaning of the statute if it is not free
from drugs. In re Matthew T., 2016 WL 1621076, at *7 (citing In re Hannah H., No.
E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014)).
The trial court adjudicated Mother’s three older children dependent and neglected
on March 29, 2016, and they entered the custody of DCS that same day. Thus, the
relevant four-month period for the three older children runs from March 29 through July
29, 2016. Morgan was adjudicated dependent and neglected on December 14, 2016, and
she was placed in DCS’s custody that same day. Thus, the relevant four-month period
for Morgan runs from December 14, 2016, through April 14, 2017.
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Mother testified about the different places she lived from the time the children
were removed from her house in March 2016 until trial. She continued living in the same
apartment where the children were living when they were removed until April 25, 2016,
when Mother started in-patient treatment, which continued for forty-five days. Once she
completed her in-patient treatment, Mother lived in a tent in a friend’s front yard for a
few weeks. Then Mother lived out of a vehicle for a week or two. Mother testified that
she got pulled over while she was living in the vehicle and was sent to jail for driving on
a suspended license. Mother testified that she moved to Arkansas in January 2017, where
her family stole her things, and then she was incarcerated from March until the end of
May 2017. When she was released, Mother moved into a residence with a friend, but she
moved out two or three weeks later because the arrangement was not working out.
Mother testified that she began living in a house with a friend shortly before trial and that
she was paying $45 a week for rent.
Tammy Lawler is the case worker DCS assigned to Mother’s case, and DCS relies
on testimony by Ms. Lawler to prove it complied with the requirements of the statute to
assist Mother establish suitable housing. Ms. Lawler testified that she “offered to help
[Mother] with housing, help her find housing, and she can get that on her own.” Ms.
Lawler’s testimony does not include a timeframe or description of any particular actions
she took to assist Mother in this endeavor, however. When Mother was asked whether
anyone from DCS helped her obtain housing, she replied that “Miss Mona” told her she
was going to speak with someone named Billy Reed, but that Miss Mona never got back
to Mother to tell her if she was able to work anything out with Mr. Reed.
The trial court found that Mother had not made efforts to provide a suitable home
for her children but that “DCS did make reasonable efforts to assist [Mother] in
establishing a suitable home for the children.” We disagree with the trial court’s
determination on this issue and conclude that the evidence does not establish by clear and
convincing evidence that DCS proved this ground. Although we agree that Mother was
unsuccessful in establishing a suitable home for the children, DCS failed to show that it
made reasonable efforts during the relevant four-month periods to assist Mother in
obtaining suitable housing, as it must, to prevail on the ground of abandonment by failure
to provide a suitable home. “Termination for failure to provide a suitable home requires
a finding, supported by clear and convincing evidence, that a parent failed to provide a
suitable home for his or her child even after DCS assisted that parent in his or her attempt
to establish a suitable home.” In re Jamel H., 2015 WL 4197220, at *6. Because DCS
did not present sufficient evidence that it assisted Mother to obtain a suitable home, we
reverse the trial court’s judgment on this issue.
3. Abandonment by Wanton Disregard
A parent who was incarcerated when the termination petition was filed can also
abandon his or her children, within the meaning of the parental termination statute, by
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engaging in conduct that shows a “wanton disregard” for the children’s welfare preceding
the incarceration. Tenn. Code Ann. § 36-1-102(1)(A)(iv). The statute provides as
follows:
A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and . . . the parent or guardian has engaged in conduct prior to incarceration
that exhibits a wanton disregard for the welfare of the child. If the four-
month period immediately preceding the institution of the action or the
four-month period immediately preceding such parent’s incarceration is
interrupted by a period or periods of incarceration, and there are not four
(4) consecutive months without incarceration immediately preceding either
event, a four-month period shall be created by aggregating the shorter
periods of nonincarceration beginning with the most recent period of
nonincarceration prior to commencement of the action and moving back in
time. . . . A finding that the parent has abandoned the child for a defined
period in excess of four (4) months that would necessarily include the four
(4) months of nonincarceration immediately prior to the institution of the
action, but which does not precisely define the relevant four-month period,
shall be sufficient to establish abandonment.
Tenn. Code Ann. § 36-1-102(1)(A)(iv). The definition of “child” has been extended to
include a developing child in utero for purposes of this ground for termination. In re
F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077, at *3 (Tenn. Ct. App. Apr.
11, 2016); see also Dep’t of Children’s Servs. v. Harville, No. E2008-00475-COA-R3-
PT, 2009 WL 961782, at *8 (Tenn. Ct. App. Apr. 9, 2009); In re S.L.A., 223 S.W.3d 295,
300 (Tenn. Ct. App. 2006). Thus, ‘“[t]he conduct may occur before the birth of the child
whose welfare is thereby put at risk.”’ In re F.N.M., 2016 WL 3126077, at *3 (quoting
In re Jamazin H.M., No. W2013-01986-COA-R3-PT, 2014 WL 2442548, at *9 (Tenn.
Ct. App. May 28, 2014)).
The statute does not define “wanton disregard.” In re H.A.L., No. M2005-00045-
COA-R3-PT, 2005 WL 954866, at *6 (Tenn. Ct. App. Apr. 25, 2005). Tennessee courts
have held that “probation violations, repeated incarceration, criminal behavior, substance
abuse, and the failure to provide adequate support or supervision for a child can, alone or
in combination, constitute conduct that exhibits a wanton disregard for the welfare of a
child.” In re Audrey S., 182 S.W.3d at 867-68. “Our courts have consistently held that
an incarcerated parent who has multiple drug offenses and wastes the opportunity to
rehabilitate themselves by continuing to abuse drugs, resulting in revocation of their
parole and reincarceration, constitutes abandonment of the child, and demonstrates a
wanton disregard for the welfare of the child.” Dep’t of Children’s Servs. v. J.M.F., No.
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E2003-03081-COA-R3-PT, 2005 WL 94465, at *7 (Tenn. Ct. App. Jan. 11, 2005) (citing
In re C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct. App. 2004); Dep’t of Children’s Servs. v. J.S.,
No. M2000-03212-COA-R3-JV, 2001 WL 1285894, at *3 (Tenn. Ct. App. Oct. 25,
2001); In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000); G.M.C. v. A.V.I., No.
E2000-00134-COA-R3-CV, 2000 WL 1195686, at *5-6 (Tenn. Ct. App. Aug. 23, 2000);
Dep’t. of Children’s Servs. v. Wiley, No. 03A01-9903-JV-00091, 1999 WL 1068726, at
*7 (Tenn. Ct. App. Nov. 24, 1999)). “The actions that our courts have commonly found
to constitute wanton disregard reflect a ‘me first’ attitude involving the intentional
performance of illegal or unreasonable acts and indifference to the consequences of the
actions for the child.” In re Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL
3611244, at *3 (Tenn. Ct. App. June 9, 2015).
Courts are not limited to the four-month period preceding a parent’s incarceration
to determine whether the parent has engaged in conduct evidencing a wanton disregard
for his or her children’s welfare. Id. at *2; In re F.N.M., 2016 WL 3126077, at *3.
Incarceration itself is not grounds for a parent’s termination of parental rights, but courts
consider the incarceration a “triggering mechanism that allows the court to take a closer
look at the child’s situation to determine whether the parental behavior that resulted in
incarceration is part of a broader pattern of conduct that renders the parent unfit or poses
a risk of substantial harm to the welfare of the child.” In re Audrey S., 182 S.W.3d at
866.
When DCS filed the termination petition in this case, Mother was incarcerated for
driving on a suspended license and failing to appear in court for a hearing. The record
shows that the initial referral to DCS was based on a neighbor’s report that Mother was
using methamphetamine in front of the children and leaving it within their reach. Two of
the children subsequently tested positive for methamphetamines and amphetamines.
Mother agreed to undergo rehabilitation in an in-patient facility after the children were
removed and placed in DCS’s custody, but she failed to comply with the recommended
follow-up steps and relapsed after successfully completing her treatment. When Morgan
was born in November 2016, Mother tested positive for amphetamine and Morgan tested
positive for methamphetamine and amphetamine. Morgan was removed from Mother’s
custody less than a month after she was born, and Mother testified that she started using
drugs again before Morgan was removed from her custody. Mother testified that she did
not seek further treatment following her relapse in December 2016. Mother was
incarcerated at different times during the pendency of this action for reasons related to
her driving on a suspended license and failing to pay child support pursuant to the court’s
orders.
The trial court determined that Mother engaged in conduct that exhibited a wanton
disregard for her children’s welfare. We agree that the evidence is clear and convincing
that Mother’s conduct exhibited a wanton disregard for the children’s welfare and affirm
the trial court’s determination as to this ground.
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4. Substantial Noncompliance with Permanency Plan
In addition to the grounds discussed thus far, a parent’s rights can be terminated if
he or she is substantially noncompliant with the statement of responsibilities in a
permanency plan that complies with the requirements of title 37, chapter 2, part 4. Tenn.
Code Ann. § 36-1-113(g)(2). Tennessee Code Annotated section 37-2-403(a)(2) requires
that the permanency plan for each child in foster care include a statement of
responsibilities between the parent(s), the agency, and the caseworker of the agency; the
statements identify each party’s responsibilities in specific terms; and the statements be
reasonably related to remedying the conditions that necessitated foster care placement.
This ground for termination does not require DCS to use reasonable efforts to assist a
parent in complying with the requirements of a permanency plan. See In re Kaliyah S.,
455 S.W.3d at 555 (holding that “proof of reasonable efforts is not a precondition to
termination of the parental rights of the respondent parent”); see also In re Skylar P., No.
E2016-02023-COA-R3-PT, 2017 WL 2684608, at *7 (Tenn. Ct. App. June 21, 2017).
The Department developed two permanency plans for Mother, the first in April
2016 and the second in January 2017, after Morgan was born. The first plan identified
the permanency goal for Seth and Bentley to be returned to Mother. The permanency
goal for Kaitlynn was to exit custody with a relative. The goal target date for all three
children was October 25, 2016. The first plan directed Mother to pay $100 each month
for the support of each of her three children in DCS custody and included the following
concerns: Mother’s erratic behavior at visitation with children, Mother’s admitted use of
pain pills and methamphetamines, Mother’s unemployment, and Mother’s lack of
suitable housing for the children. The plan included a statement of Mother’s
responsibilities for each concern identified. With regard to Mother’s erratic behavior
during her visits with the children, she was required to complete a mental health
assessment by June 20, 2016, sign releases for the assessments, and follow all
recommendations of the mental health assessment. With regard to her admitted use of
pain pills and methamphetamines, Mother was to have negative drug screens, submit to
random drug screens to include hair, nail, urine, or saliva at the request of DCS, provide
medication prescriptions and submit to random pill counts, attend an in-patient treatment
facility, follow all discharge recommendations, and sign releases for records and
recommendations. With regard to her unemployment, DCS required Mother to obtain a
legal source of income, provide proof of income to DCS to establish financial stability,
and complete classes and work towards obtaining her General Equivalency Diploma
(“G.E.D.”). Finally, with regard to her lack of suitable housing, Mother was required to
notify DCS when she obtained adequate housing, resolve all legal issues, and provide
DCS with four consecutive months of paid rent and utility receipts to prove stability.
Mother participated in the development of the first permanency plan and signed
the plan on April 25, 2016. She also signed a statement acknowledging receipt of a copy
of the “Criteria and Procedures for Termination of Parental Rights” that was attached to
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the plan and that she was provided an explanation of its contents. The trial court ratified
the first plan on November 14, 2016. Morgan was included in the second permanency
plan dated January 5, 2017. The second plan was substantially similar to the first plan.
The second plan listed two goals for each child: “return to parent” or “exit to kin,” and
the goal target date for this plan was set at July 15, 2017. The amount of monthly child
support Mother was to pay for each child was lowered from $100 to $50. In addition to
the responsibilities identified in the initial plan, the second plan required Mother to
demonstrate her ability to parent the children in an age-appropriate manner by providing
a meal or snacks during her scheduled visits with the children and to notify DCS twenty-
four hours in advance if she was not able to make it to a scheduled visit. The second
permanency plan was ratified on April 20, 2017.
Mother has not substantially complied with her responsibilities under either of the
permanency plans. She attended an in-patient treatment facility shortly after the three
older children were removed from her custody, but she refused to follow the discharge
recommendations. One of the discharge recommendations was that Mother attend ninety
AA meetings in ninety days, and Mother testified that she only attended “a couple” of
meetings. The record does not reflect that Mother ever had a mental health assessment.
When she was asked about this at trial, Mother testified that she was never in the proper
mind set to have her mental health assessed.5 Despite successfully completing the in-
patient treatment for drugs and alcohol while she was pregnant with Morgan, Mother
tested positive for amphetamine when Morgan was born and she admitted to relapsing
following Morgan’s birth. The record does not reflect that Mother has sought any further
drug and alcohol treatment.
With regard to employment, Mother worked only sporadically and for short
periods from the time the older children were removed from her custody in March 2016
until trial. She was unemployed when the children were removed. Mother testified that
she cleaned houses for a time while she was in Arkansas and that she worked at a
Holiday Inn for about three weeks before she was incarcerated in March 2017 and then
for another couple of weeks following her release. Mother also testified that she worked
for about three weeks at Tice’s Springs in May 2017 and that she worked for a few days
at Thunder Alley in August 2017. Mother testified that she had plans to begin working at
The Dollar Store following trial, but she was unsure of her rate of pay or how many hours
per week she would be working.
Mother failed to maintain contact with DCS during the pendency of her case, as
she was required to do. Mother did not inform Ms. Lawler when she moved from place
to place in Tennessee or when she relocated to Arkansas following Morgan’s birth. She
also did not let DCS know when she was working or provide any proof of her income.
5
Mother testified that she went in for a mental health evaluation shortly before trial but was unable to
retrieve the results in time for trial.
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Mother admitted at trial that she had not paid any amount of child support other
than $400 that her mother lent her for the purpose of purging herself of contempt. The
record is not clear about when this $400 was paid, but the record suggests Mother paid
this amount shortly before the trial, after the termination petition was filed.
Mother failed to comply with her responsibilities related to establishing and
maintaining suitable housing for the children. She testified that prior to July 2017, which
was one month before trial, she did not have an address. As discussed above, Mother
was living in an apartment when the three older children were removed from her custody.
Shortly thereafter, Mother began the 45-day in-patient treatment. After leaving the in-
patient facility, Mother lived in a tent in a friend’s front yard for a few weeks, and after
that she lived out of a car. Mother moved to Arkansas in January 2017 for five or six
weeks. From March to the end of May 2017, Mother was incarcerated for driving on a
suspended license and failure to appear in court for a hearing. Mother began living in a
three-bedroom house a few weeks before the trial, but Ms. Lawler testified that Mother
did not inform her that she was residing in this house until the day before trial.
Mother’s visitation with the children was not consistent. After the children were
removed from her custody, Mother was allowed weekly visitation with the children. Ms.
Lawler testified about Mother’s visitation:
She had weekly visitations and she was about every three weeks. She
would miss one week out of the month. And then the one time that she was
in [the treatment facility] we brought [the children] up there for 45 days,
and then after that it was like two weeks a month until about September,
October, and then it was kind of like just a little.
When Mother was asked at trial when she last saw her children, she responded, “I
honestly can’t tell you.” Ms. Lawler testified that Mother last saw her children in early
January 2017, before she moved to Arkansas. The trial court allowed Mother to send
letters to her children after it removed her right to visit with them. The evidence showed
that Mother sent only one letter to the children. Ms. Lawler testified that Mother last
spoke with the children in March or April of 2017.
The trial court found there was clear and convincing evidence to support this
ground for termination:
[Mother’s] own testimony makes it clear that in the initial Permanency Plan
and all subsequent plans, there were specific tasks for [Mother] to
complete. The criteria for termination of parental rights were explained to
[Mother] and she signed the criteria stating she was aware of the
requirements and the reasons her parental rights could eventually be
terminated. The testimony showed that even though [Mother] was in and
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out of jail, during the times she was not in jail she failed to follow through
with most of the tasks on the permanency plan. And even though [Mother]
was assisted by DCS in many ways, she was not able to obtain a job or
stable housing or complete her A&D or mental health treatment. The
testimony further showed that DCS used reasonable efforts to try and assist
[Mother]; however she would not stay in contact with her caseworker. The
testimony further showed that the permanency plans were in the children’s
best interests and the requirements for [Mother] were reasonably related to
remedying the reasons the children were in foster care.
Mother argues the trial court erred in concluding the evidence supported this
ground by clear and convincing evidence, pointing out that she had a mental health
evaluation performed prior to trial, she obtained housing by the time of trial, she attended
rehabilitation for forty-five days in 2016, and she had obtained employment at The Dollar
Store. With the exception of the in-patient facility where Mother obtained treatment for
her drug and alcohol use in April and May 2016, Mother does not point to any other steps
she took to comply with her responsibilities under the permanency plans until after the
termination petition was filed. Moreover, Mother relapsed after she completed the in-
patient treatment, and the evidence does not show that she sought additional treatment to
address her continuing issues with drugs and alcohol. We find Mother’s efforts were
“too little too late.” See In re Daymien T., 506 S.W.3d 461, 473 (Tenn. Ct. App. 2016)
(finding father’s progress on requirements under permanency plan were “too little, too
late” because he “largely failed to take any action for nearly two years after the child was
removed from his custody”); see also In re K.M.K., No. E2014-00471-COA-R3-PT, 2015
WL 866730, at *6 (Tenn. Ct. App. Feb. 27, 2015); In re A.W., 114 S.W.3d 541, 546-47
(Tenn. Ct. App. 2003). Our review of the record convinces us that the evidence is clear
and convincing that Mother failed to address or complete many of the requirements in the
permanency plans. In fact, with the exception of the in-patient treatment, she did not
begin to address the requirements until shortly before trial, after the termination petition
was filed. Thus, we affirm the trial court’s determination that termination of Mother’s
rights based on her substantial noncompliance with the permanency plans was established
by clear and convincing evidence.
5. Severe Child Abuse
Parental rights can be terminated upon clear and convincing evidence that a parent
engaged in “severe child abuse,” as that term is defined in Tenn. Code Ann. § 37-1-102.
Tenn. Code Ann. § 36-1-113(g)(4). “Severe child abuse” is defined as:
The knowing exposure of a child to or the knowing failure to protect a child
from abuse or neglect that is likely to cause serious bodily injury or death
and the knowing use of force on a child that is likely to cause serious bodily
injury or death; [or]
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....
Knowingly allowing a child to be present within a structure where the act
of creating methamphetamine . . . is occurring.
Tenn. Code Ann. § 37-1-102(b)(22)(A)(i), (D).
Seth, Bentley, and Kaitlynn
The trial court (which was a juvenile court) entered an order on December 29,
2016, finding that Seth, Bentley, and Kaitlynn were victims of severe child abuse
pursuant to Tenn. Code Ann. § 37-1-102(b)(22)(D). Mother participated in the
dependency and neglect proceedings that preceded the court’s determination that the
children were victims of severe child abuse, and the court noted that Mother stipulated in
those earlier proceedings that the children were dependent and neglected.
Mother did not appeal the trial court’s judgment finding the children were victims
of severe child abuse, as she had the statutory right to do. See Tenn. Code Ann. § 37-1-
159(a) (“Any appeal from any final order or judgment in a[] . . . dependent and neglect
proceeding, filed under this chapter, may be made to the circuit court . . . [and] shall be
perfected within ten (10) days . . . following the entry of the juvenile court’s order.”).
The doctrine of res judicata applies to bar the re-litigation of an issue under the following
circumstances:
an existing final judgment rendered upon the merits, without fraud or
collusion, by a court of competent jurisdiction, is conclusive of rights,
questions and facts in issue as to the parties and their privies, in all other
actions in the same or any other judicial tribunal of concurrent jurisdiction.
Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn. Ct. App. 1990). Because Mother did not
appeal the trial court’s earlier order regarding severe child abuse of the older three
children, the issue of whether Mother’s parental rights can be terminated as to Seth,
Bentley, and Kaitlynn on the ground of severe child abuse is res judicata. See In re
Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App. 2010) (holding that doctrine of res
judicata precludes parent from re-litigating issue of severe child abuse in termination
proceeding when court has found child to be victim of severe child abuse in earlier
dependency and neglect proceeding); see also Dep’t of Human Servs. v. Tate, No. 01-A-
01-9409-CV-00444, 1995 WL 138858, at *5 (Tenn. Ct. App. Mar. 31, 1995).
Morgan
The trial court filed an order finding Morgan was a victim of severe child abuse on
August 23, 2017, just one day before the trial to determine whether Mother’s parental
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rights should be terminated. It is unclear whether Mother appealed that order. In its
order terminating Mother’s rights, the trial court again concluded that Mother committed
severe child abuse against Morgan. The record shows that Mother tested positive for
amphetamine and Morgan tested positive for methamphetamine and amphetamine when
she was born. We have held in prior cases that “a mother’s prenatal drug use constitutes
severe child abuse ‘whether or not the child actually sustains harm.”’ In re Douglas H.,
No. M2016-02400-COA-R3-PT, 2017 WL 4349449, at *9 (Tenn. Ct. App. Sept. 29,
2017) (quoting In re Shannon P., No. E2012-00445-COA-R3-PT, 2013 WL 3777174, at
*5 (Tenn. Ct. App. July 16, 2013)); see also In re M.J.J., No. M2004-02759-COA-R3-
PT, 2005 WL 873305, at *8 (Tenn. Ct. App. Apr. 14, 2005) (affirming trial court’s
finding that Mother’s drug use while pregnant constituted severe child abuse for purposes
of terminating her parental rights).
In its order terminating Mother’s parental rights, the trial court found the evidence
showed that Mother knowingly exposed her children to drugs and that the children tested
positive for methamphetamines and amphetamines. Thus, the trial court concluded, clear
and convincing evidence supported terminating Mother’s parental rights based on the
ground of severe child abuse. Mother does not contest this ground as a basis for
terminating her parental rights. We find the trial court properly determined that the
evidence was clear and convincing that Mother committed severe child abuse against
Morgan before Morgan was born and that the issue of whether Mother committed severe
child abuse against Seth, Bentley, and Kaitlynn is res judicata.
C. Best Interests Analysis
Having found clear and convincing evidence exists to terminate Mother’s parental
rights, we next consider whether the trial court properly determined that termination is in
the children’s best interest. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182
S.W.3d at 860. “Facts relevant to a child’s best interests need only be established by a
preponderance of the evidence, although DCS must establish that the combined weight of
the proven facts amounts to clear and convincing evidence that termination is in the
child’s best interests.” In re Carrington H., 483 S.W.3d at 535 (citing In re Kaliyah S.,
455 S.W.3d at 555).
The factors a trial court is to consider in determining whether terminating a
parent’s rights to a child is in the child’s best interests are set forth in Tenn. Code Ann.
§ 36-1-113(i) and include 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;
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(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.
The Tennessee Supreme Court has addressed the steps DCS must take to reunify a
family before a court will terminate a parent’s rights, explaining:
[I]n a termination proceeding, the extent of DCS’s efforts to reunify the
family is weighed in the court’s best-interest analysis, but proof of
reasonable efforts is not a precondition to termination of the parental rights
of the respondent parent. As with other factual findings made in
connection with the best-interest analysis, reasonable efforts must be
proven by a preponderance of the evidence, not by clear and convincing
evidence. In re Audrey S., 182 S.W.3d at 861. After making the
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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. See
In re Adoption of Kleshinski, No. M2004-00986-COA-R3-CV, 2005 WL
1046796, at *17 (Tenn. Ct. App. May 4, 2005) (citing In re M.J.B., 140
S.W.3d 643, 654 (Tenn. Ct. App. 2004)); see also In re Giorgianna H., 205
S.W.3d at 516; Tenn. Dep’t of Children’s Servs. v. T.M.B.K., 197 S.W.3d
282, 288 (Tenn. Ct. App. 2006).
In re Kaliyah S., 455 S.W.3d at 555-56.
The trial court in this case concluded that after considering all of the testimony and
statutory factors set forth in Tenn. Code Ann. § 36-1-113(i), the evidence was clear and
convincing that terminating Mother’s parental rights was in the children’s best interest.
The court wrote:
[Mother] has not made such an adjustment of circumstances,
conduct or conditions to make it safe and in the children’s best interest to
be in the home of the parent as she has not obtained and maintained a
suitable home for the children; has not obtained mental health treatment;
has not completed A&D treatment; and has continued to test positive for
illegal drugs. She is not in a position to assume care or custody of the
children and will not be for a long time. [Mother] was late to Court for this
hearing, not just the morning session, but the afternoon session as well,
which speaks volumes as to her concern and disregard for this case.
[Mother] has not made a lasting adjustment after reasonable efforts
by the Department that lasting change appears possible. The conditions
that led to the removal are not likely to change, and it appears to this Court
that [Mother] is going to continue in those conditions.
[Mother] has had little or no contact or relationship with the
children, even when [she] was not incarcerated. At one time there was a
relationship, but in the past several months [Mother] has [not] been willing
to establish a relationship.
Based on the testimony of the caseworker and the custodian, the
Court finds that the children are in a good home together that is very stable.
When all the factors are evaluated in conjunction with the testimony, the
Court finds by clear and convincing evidence that termination is in the best
interest of the minor children.
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“[A]scertaining a child’s best interests in a termination proceeding is a fact-
intensive inquiry requiring the courts to weigh the evidence regarding the statutory
factors, as well as any other relevant factors.” In re Audrey S., 182 S.W.3d at 878
(footnote omitted); see also White v. Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App.
2004). Conducting a best interest analysis does not call for a “rote examination” of each
of the factors listed in Tenn. Code Ann. § 36-1-113(i) and then determining whether the
sum of the factors weighs in favor of the parent or not. White, 171 S.W.3d at 194.
Rather, “[t]he relevancy and weight to be given each factor depends on the unique facts
of each case.” In re Audrey S., 182 S.W.3d at 878. Courts must view a child’s best
interest from the child’s perspective, not that of the parent. Id.; see also White, 171
S.W.3d at 194.
In this case, Mother testified at trial that she was not then ready for her children to
be returned to her. She explained:
I’m not asking for you all to give them back to me at this time, I’m just
asking for you to let me be a part of their lives. I know they’re completely
stable and living right with Aunt Cathy, but I know in my heart that I can
get myself together and I can get a home for them and bring them home.
It’s going to take a lot of saving up money because I don’t want to bring
four kids over to live with me while I’m struggling. I want to have the
money to take them and get them anything that they ask me for, and at this
time I can’t do that. I probably can’t do that for another six months. But I
can work as hard as I can towards that.
The record shows that by the time of trial, Mother was working towards adjusting her
circumstances, conduct, and conditions to create a safe environment for the children to
live with her, but she was not yet ready for the children to be with her.
Ms. Lawler testified that she encouraged Mother to undergo a mental health
assessment throughout the pendency of this case, but Mother consistently refused to
comply. Mother testified that she went in for a mental health assessment shortly before
trial, but she did not have the results back in time for trial. Mother admitted that after
Morgan was born, DCS encouraged her to “go back to rehab” because she had relapsed
and started using illegal drugs again, but Mother did not seek additional treatment. Ms.
Lawler testified that she transported the children to see Mother when Mother was in the
in-patient treatment facility and that she encouraged Mother to visit the children regularly
following this forty-five-day period. Ms. Lawler also testified that she visited Mother
while she was in jail to boost Mother’s morale and let her know Ms. Lawler was thinking
about her. Mother admitted that she failed to maintain contact with Ms. Lawler, and this
made it difficult for Ms. Lawler to obtain drug screens from Mother during the pendency
of the case.
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Although the evidence shows Mother visited the children about three out of every
four weeks once she left the in-patient treatment facility in May 2016, Ms. Lawler
testified that Mother did not visit the children much after September or October of that
year. Mother could not say at trial when she last saw her children, and Ms. Lawler
testified that she did not believe Mother had seen them since early January 2017, which
was over seven months prior to trial.
We have already addressed Mother’s neglect of the children through her exposure
of them to amphetamines and methamphetamines and her inability to show that she can
provide them with a suitable home or financially take care of them. When the children
were removed from Mother’s custody in March 2016, they were placed with Ms. C., who
is Mother’s aunt. Ms. Lawler testified that the children love Ms. C. “as if . . . she was
their mother.” Ms. Lawler said the younger two children seem to treat Ms. C. as if she
was their mother and that the older boy, Seth, “is angry because he knows he has a
mother, but somebody else is taking care of him.” In response to a question about
whether Seth had indicated whether he wanted to see his mother, Ms. Lawler stated:
He hasn’t brought her up. I have tried talking to him about it, but he doesn’t
want to talk about it and I don’t want to push him. But I have been at the
house a couple of times when she was having phone calls and it was a fight
to get him to talk to her on the phone.
Ms. Lawler explained that Bentley “went through an aggressive spell” but that he has
calmed down with the help of counseling. Ms. Lawler testified that she believed
removing the children from Ms. C.’s home would be detrimental to them.
Ms. C. testified that the children were doing well in her home and that she was
able to transport the children to doctor’s appointments and transport Seth and Bentley to
meet with their counselors. Ms. C. said that the boys were both doing well in school and
that the girls, who were too young for school, were able to stay at home with her. Ms. C.
believed “it would be devastating” if the children were removed from her home. Ms. C.
testified that she was willing to adopt all four of Mother’s children if they became
available for adoption.
We agree with the trial court’s determination that the evidence clearly and
convincingly shows that termination of Mother’s parental rights is in the children’s best
interest. Accordingly, we affirm the trial court’s judgment terminating Mother’s parental
rights to Seth, Bentley, Kaitlynn, and Morgan.
III. CONCLUSION
We reverse the trial court’s judgment that DCS proved by clear and convincing
evidence that Mother abandoned the children by failing to support them or provide a
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suitable home, and we vacate the judgment that DCS proved the ground of persistence of
conditions. We affirm the judgment of the trial court in all other respects. This matter is
remanded with costs of appeal assessed against the appellant, Ashley R., and execution
may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
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