In Re Payton G.

08/16/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 1, 2021
IN RE PAYTON G.1 ET AL.
Appeal from the Juvenile Court for Hamilton County
No. 289100, 289101 Robert D. Philyaw, Judge
___________________________________
No. E2020-00992-COA-R3-PT
___________________________________
The mother of two minor children appeals the termination of her parental rights. The trial
court terminated the mother’s parental rights upon finding that the Department of
Children’s Services established three grounds for termination: (1) abandonment prior to
incarceration that exhibits wanton disregard for the welfare of the children; (2) substantial
noncompliance with a permanency plan; and (3) failure to manifest an ability or willingness
to assume custody, and that termination was in the best interest of the children. This appeal
followed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.
Rex V. Sparks, Chattanooga, Tennessee, for the appellant, Dana G.
Herbert H. Slatery, III, Attorney General and Reporter, and Lexie A. Ward, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
OPINION
FACTUAL AND PROCEDURAL HISTORY
This case concerns the parental rights of Dana G. (“Mother”) to her children Payton
G. (born in 2005) and Aidan G. (born in 2007) (collectively, “the Children”). Mother
divorced the Children’s father, Michael G. (“Father”), on May 14, 2008. The Order of
Divorce and the incorporated agreed Permanent Parenting Plan, named Father the primary
1
This Court has a policy of protecting the identity of children by initializing the last names of the
parties.
residential parent of the Children, awarded 80 days of visitation to Mother and stipulated,
“Parenting time supervised until mother has a place for the children to have their own room.
No alcohol while mother is exercising visitation with children.” As a consequence, Payton
and Aidan resided with Father following their parents’ divorce in 2008.
Payton and Aidan had a half-sister, a daughter of Father, who was born within six
months of Payton. The half-sister’s mother died in 2010, following which she resided with
Payton, Aidan, and Father. They resided together until March 2, 2017, when the three
children were removed pursuant to an ex parte protective custody order issued by the
Hamilton County Juvenile Court at the request of the Tennessee Department of Children’s
Services (“DCS”). Their removal resulted from a referral DCS received on February 22,
2017, with allegations of sexual and physical abuse by Father. Following an investigation,
DCS filed a dependency and neglect petition, and the ex parte protective custody order was
issued and served on March 2, 2017.2
At the adjudicatory hearing on May 11, 2017, evidence was introduced which
established that Father had sexually abused Payton’s and Aidan’s half-sister. Additionally,
Mother testified that she had been emotionally and physically abused by Father and stated
that Payton had told her that he did not want to return to Father’s home. The court found
“that it [wa]s unclear why [Mother] was not extremely fearful for her children’s safety in
their father’s care, knowing his history of abuse towards her . . . [and] why she was unable
to take effective action to protect her children.” The trial court did not place the Children
with Mother because she “ha[d] a history of drug use, including prior arrests related to
illegal drug use…” and she had “prior CPS history with [DCS],” citing Mother’s 2015
arrest on drug-related charges while at a motel with Payton present. Cassandra Leonor,
DCS Case Manager, testified that Mother stated that she had not used any drugs recently
but refused to submit to a drug screen. The court ordered Mother to submit to a random
drug screen and hair follicle test through DCS and that she “accept[] some responsibility
for what has happened to her children prior to entering DCS custody.”
Following the conclusion of the adjudicatory hearing, Payton, Aidan, and their half-
sister were adjudicated dependent and neglected based on Father’s abuse of the half-sister,
and DCS was awarded legal custody of all three children. Payton and Aidan were placed
in a foster home because DCS determined that Mother was not a suitable placement due to
prior substantiated allegations of a drug-exposed child and lack of supervision related to
Payton. Because the mother of the half-sister was deceased, the half-sister was also placed
in foster care at the same foster home with Payton and Aidan.
2
DCS filed an amended petition on April 11, asking the court to find all three children dependent
and neglected and to award temporary legal custody to DCS, and Father did not contest DCS’s petition for
temporary custody of his three children.
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The court approved two Permanency Plans: the first on March 22, 2017, and the
second on October 18, 2018.3 Each set forth the responsibilities between Mother, the
agency and the caseworkers, with a goal of, inter alia, attaining a safe, suitable and
permanent living situation for Payton and Aidan. See Tenn. Code Ann. § 37-2-403(2)(A).
Pursuant to each plan, Mother was required to do the following: participate in family
therapy if requested; attend and complete a parenting assessment and follow all
recommendations; participate in an alcohol and drug assessment and follow all
recommendations; submit to random drug screens; obtain a sober sponsor; avoid
association with those known to use or abuse illegal substances, alcohol, or non-prescribed
medications; obtain a mental health assessment and follow all recommendations; provide
DCS with proof of housing and maintain residential stability; provide DCS a copy of a
valid driver’s license, proof of car insurance, and vehicle registration, or a transportation
plan; provide proof of legal income; pay child support as ordered; maintain contact with
case workers and notify them of any changes of circumstances within twenty-four hours;
sign all required releases for DCS to ensure proper case management; attend Child and
Family Team Meetings (“CFTM”) and court hearings as requested; attend educational
meetings and medical appointments for the Children; participate in visitation in a positive
manner to aid in the reunification process; and contact DCS regarding any visitation issues
that arise.
After attempting to assist Mother for eight months, DCS filed a petition in the
Hamilton County Juvenile Court on July 1, 2019, to terminate Mother’s parental rights to
the Children, citing the grounds of substantial noncompliance with the permanency plan,
abandonment by incarcerated parent, and failure to manifest an ability and willingness to
personally assume legal and physical custody of the children.4
The court held a trial on the petition on November 14, 2019, January 29, 2020, and
July 17, 2020.5 The evidence presented at trial revealed that Mother has a history of illegal
3
The permanency plans only pertained to Payton and Aidan, not their half-sister, because Mother
was neither a parent or custodian of their half-sister. For the same reason, the petition to terminate Mother’s
parental rights only pertained to Payton and Aidan. DCS filed a separate petition to terminate the parental
rights of Father to their half-sister.
4
The petition also sought to terminate Father’s parental rights to Payton and Aidan. Father
surrendered his parental rights to Payton and Aidan on July 31, 2018; thus, Father is not a party to this
appeal.
5
Mother attended and testified the first day of trial; however, she expressed anxiety and stated that
she could not continue, so the court paused her testimony and moved on to another witness. Mother did
not attend the second day of trial and sent an email to her counsel informing him she had the flu. On the
third day of trial, Mother appeared via video call due to COVID-19 protocol; however, after a few questions,
Mother disconnected from the video call and did not respond to any contact numbers. The court was unable
to reach her through email or through 32 phone calls.
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drug use, which was substantiated by both drug screenings and Mother’s statements during
drug and alcohol assessments. It was also established that Mother’s drug use led to arrests
and criminal convictions, including an arrest in February 2019 in the presence of the
Children while at the juvenile court awaiting a hearing. Mother pled guilty to two
misdemeanor offenses—possession of a schedule VI drug and possession of drug
paraphernalia—and was incarcerated from April 15 to June 6, 2019, with the remainder of
the 11-month, 29-day sentence on supervised probation.
Mother tested positive for illicit substances multiple times. She tested positive for
THC (marijuana) on June 27, 2017; for methamphetamine, amphetamine, and THC on
March 1, 2018, and on October 25, 2018; and for THC on October 7, 2019. On other
occasions, Mother refused to comply with drug screening. She completed an alcohol and
drug assessment at Health Connect on July 24, 2017, which resulted in a diagnosis of severe
cannabis use disorder, generalized anxiety disorder with panic attacks, and unspecified
trauma and stressor-related disorder. The assessor recommended that Mother participate in
intensive outpatient treatment to address both mental health issues and substance abuse, as
well as parenting classes “to increase her awareness of the impacts of substance use and
trauma on childhood development.” This assessment did not address methamphetamine
use, and because Mother tested positive for methamphetamines in March and October of
2018, DCS asked for a second alcohol and drug assessment.6
Mother completed the second drug and alcohol assessment at Susannah’s House on
July 25, 2019. The assessment report noted that Mother had a history of “ongoing use of
sedatives, hypnotics, or tranquilizers for a period of one year,” “ongoing or problematic
cocaine use for a period of one year,” “a 20-year history of ongoing, regular cannabis use,”
“a one-year history of using multiple substances on an ongoing basis,” and a history of
serious problems with depression and anxiety. The report further stated that “[Mother]
admits marijuana being her current [drug of choice] with periods of use of cocaine, molly,
and alcohol to intoxication.” The recommendations section stated Mother has “a profound
drug problem,” “a profound legal problem,” and “a profound psychological or emotional
problem,” and that for all of these, “help obtaining appropriate treatment is absolutely
necessary and should be prioritized.” Based on this assessment, Mother was to return to
Susannah’s House for the orientation and to participate in the treatment program. Stacey
Ridgell, the Children’s DCS case worker, received texts from Mother stating she was
participating in the intensive outpatient program there. However, when Ms. Ridgell
followed up with Susannah’s House, she was informed that Mother had only completed
the original intake and had not returned for orientation or treatment. Moreover, Mother
6
Notwithstanding her positive methamphetamine screens, Mother denied using the substance.
Mother appeared to believe that DCS tampered with her drug screening tests; she told Ms. Ridgell, “If it’s
positive for meth, you guys did it.” She also interrupted Ms. Ridgell’s testimony at the permanency hearing
to say, “I don’t use meth.”
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did not attend AA or NA meetings and did not have a sober sponsor, as required by the
permanency plan.7 Mother repeatedly told Ms. Ridgell she was getting treatment, but DCS
was unable to confirm it, and Mother provided no documentation to substantiate her claims.
Ms. Ridgell provided Mother with a list of resources to participate in parenting
classes, but there is no evidence that she ever completed this task. On October 18, 2019,
Mother emailed enrollment information for an online parenting course and a 12-week
online alcohol and drug course to Ms. Ridgell. When Ms. Ridgell followed up on Mother’s
progress one month later, Mother had completed 30 minutes of the alcohol and drug
component and none of the parenting course. When Ms. Ridgell transferred the case to
another case worker in January 2020, she had not received any documentation either from
Mother or the online provider that Mother had actually completed the programs. The
subsequent case worker, TaQuesha Brandon, testified that she likewise received no
verification that Mother completed either program.
Mother failed to maintain suitable housing for the Children. In March 2018, Mother
provided DCS with a lease she signed on an apartment in Knoxville. When Ms. Ridgell
visited the home, she found it in an unsuitable condition for the children because there were
no beds for the Children, and there was debris and little food. On some subsequent visits,
Mother did not permit Ms. Ridgell to enter the home. On July 19, 2018, Mother did not
permit Ms. Ridgell to go beyond the living room, and on July 28, 2019, when Ms. Ridgell
went to the home to pick Mother up for a court hearing, Mother said, “I can’t let you in.”
When Ms. Ridgell was able to enter the home in October of 2019, she determined that the
home was “not quite ready yet for the [Children], but it was much improved.” Mother
testified that she lived in that apartment in Knoxville for four years but had recently moved
to Maryville, where she was living with her boyfriend of ten years, Tyler M. Mother
acknowledged that she had not provided DCS with notice of her change in living
arrangements, as required by the permanency plan. When asked whether Tyler M. used
drugs, she testified that he had been sober since 2015 and that he is drug tested often for
his job.
Mother missed or was late to scheduled visits on several occasions, which she
claimed was due to difficulty with transportation. She claimed she was unable to visit the
children regularly because she did not have a driver’s license and the Children were in
foster care an hour away from where she lived. Ms. Ridgell offered to give Mother bus
passes and gas cards, but Mother was required to produce evidence that she still lived at
her reported address to acquire the cards, and Mother never provided that information.
Mother’s last visit with the Children was in January 2019. In early March 2019,
7
Mother asserts in her brief that she “had . . . a [sober] sponsor and reported it to the DCS case
manager November 21, 2017.” However, Mother testified on the last day of trial, “I don’t have a sober
sponsor.”
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Omni Community Health workers—who were serving as both resource coordinators and
clinical therapists in this case—received a text message from Mother, who had just been
released from jail, stating she would no longer visit the children because she believed DCS
was using visitation as an opportunity to arrest her again. Yet, Mother contacted Ms.
Ridgell in April asking why visitation was suspended. Ms. Ridgell informed Mother that
she could, according to the court’s instructions, resume visitation if she met with and
gained the approval of the Guardian ad Litem, but Mother never committed to a meeting,
citing conflicts with her work and other reasons. In October, Mother participated in a
CFTM in which it was unanimously decided that visitation would not be reinstated
considering the pending termination hearings to avoid a traumatic experience for the
children.
Mother did not maintain regular communication with DCS case workers. DCS has
three phone numbers for Mother but often could not reach or get a response from her. In
August of 2018, Mother told Ms. Ridgell that she wanted to communicate only via text
message or email for her “personal safety.” Even so, when Ms. Ridgell texted or emailed
Mother the dates and times of CFTM meetings, Mother usually did not reply or attend the
meetings.
With regard to financially supporting her children, the divorce decree issued by the
Hamilton County Circuit Court required Mother to pay $100 per month in child support,
representing $50 per month for each child. On May 1, 2018, the circuit court determined
that Mother had failed to pay child support as required from February 2017 through April
2018 and entered an arrearage judgment against her for $1,400, representing $700 for each
child. When the termination petition went to trial, the evidence established that since May
1, 2018, Mother had made only two support payments, both by garnishment: $1,150.00 on
March 8, 2019, and $25.38 on April 5, 2019. Mother disputed this fact claiming she was
“caught up” due to garnishment of her wages; however, she provided no documentary
evidence to support her claim. Contrary to Mother’s claims, the evidence revealed that she
had an arrearage of more than $1,800, representing a year and a half of unpaid child
support.
As for Mother’s employment history, Ms. Ridgell stated that Mother would get jobs
but “has . . . no history of maintaining the job.” For example, Mother reported working at
a Tennessee Tavern, but “within a matter of a couple of months,” Ms. Ridgell was informed
that Mother was no longer employed there and was not eligible for rehire. Mother also
informed Ms. Ridgell she was employed at a liquor store in Knoxville, but when Ms.
Ridgell visited, she was informed that Mother did not work there. At the time of trial,
Mother was employed at Applebee’s and Moe’s Southwest Grill, although her job at Moe’s
was unstable because she had already been terminated and then reinstated by Moe’s.
Two Omni Community Health professionals testified regarding the Children’s
mental and physical health and needs. Ami McPherson, a clinical therapist with Omni
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Community Health, testified that Payton, who was diagnosed with autism, was initially
placed in a foster home but was moved to Norris Academy, a residential treatment center
that focuses on autism care. She further testified that just before entering the Academy,
Payton made threats of harm to his foster parents and their toddler son, and he required
constant supervision as he was predisposed to run away in the middle of the night.
Ms. McPherson testified that she worked with Payton for about six months (until
his transfer to Norris Academy) in therapy to help with impulse control, emotional
regulation, and dealing with trauma. During her time with him, Ms. McPherson did not
see significant improvement with Payton and was focused on getting him stabilized. Payton
continued to receive individual counseling at Norris Academy. By trial, he was ready to
relocate to a less restrictive placement, and DCS was looking for a good foster placement
for him.
With regard to Aidan, Ms. McPherson testified that she worked with him for a year,
with a focus on impulse control, emotional regulation, and dealing with trauma. She
explained that Aidan had made progress and that his strengths were passion, his happy
demeanor, and that he was motivated at school, but he had a lot of grief and trauma related
to this case.
Omni Visions Resource Coordinator Shatera Simmons testified that she had worked
with Aidan since March 2019. She stated that Aidan was diagnosed with ADHD, he has
nightmares that cause him to scream in his sleep, and he takes medication to address both
issues. She stated that he attends Comprehensive Child and Family Treatment (CCFT) two
to three times a week and has the ability to make good grades, is motivated, shows empathy
for others, and is “really, really smart.”
Aidan’s case worker, TaQuesha Brandon, testified that Aidan was in a pre-adoptive
home and doing well in that placement; however, Ms. McPherson and Ms. Simmons noted
recent regression in Aidan’s behavior and stated that he had behavior problems, which
caused him to be expelled from school. At the time of the trial, he was attending an
alternative school. Ms. Simmons believed that the termination proceedings were causing
Aidan to feel anxiety, and she believed that it was in Aidan’s best interest for Mother’s
parental rights to be terminated so that Aidan could have some closure and the opportunity
to be adopted.
The trial concluded on July 17, 2020, and in a written order entered on November
2, 2020, the trial court ruled that DCS proved three grounds for termination of Mother’s
parental rights: (1) substantial noncompliance with the permanency plan, (2) abandonment
by wanton disregard, and (3) failure to manifest a willingness or ability to assume custody.
The trial court also found that termination of Mother’s rights was in the Children’s best
interests because of, inter alia, “her lack of visitation or concern about visitation, . . . her
lack of contact trying to maintain a relationship with these boys, . . . her ongoing criminal
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issues[,] . . . her drug use and her failed follow-through with recommended drug abuse and
mental health treatment.” This appeal followed.
ISSUES
Mother identified eleven issues for our review, six in her “Statement of the Issues”
and five more in a “Statement of Additional Issues.”8 DCS presents three issues for review.
We have determined the dispositive issues are:
1. Whether clear and convincing evidence of any statutory grounds supports the trial
court’s decision to terminate Mother’s parental rights.
2. Whether clear and convincing evidence supports the trial court’s finding that
termination was in the Children’s best interest.
STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Carrington H., 483 S.W.3d 507, 521
(Tenn. 2016). However, that right is not absolute and may be terminated in certain
circumstances. In re Carrington H., 483 S.W.3d at 522. The statutes on termination of
parental rights provide the only authority for a court to terminate a parent’s rights. Osborn
v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004).
In order to terminate parental rights, a trial court must find by clear and convincing
evidence that at least one statutory ground for termination of parental rights has been
established and that termination is in the best interest of the child. Tenn. Code Ann. § 36-
1-113(c). “Clear and convincing evidence is evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence[,]” In
re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (quotation omitted), and which “produces
a firm belief or conviction in the fact-finder’s mind regarding the truth of the facts sought
to be established,” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
8
As a preliminary matter, we note that one of Mother’s “Additional Issues” is not an issue but an
assertion of a post-judgment fact. It reads: “She has completed a welding apprenticeship program in Knox
County and has been working as a welder since December 2020.” This Court “do[es] not customarily
consider evidence that has neither been presented to nor considered by the trial judge unless it has been
made part of the record in accordance with Tenn. R. App. P. 14.” Kinard v. Kinard, 986 S.W.2d 220, 227
(Tenn. Ct. App. 1998). Rule 14 provides that a party may submit a motion requesting this Court to consider
post-judgment facts “capable of ready demonstration, affecting the positions of the parties or the subject
matter of the action,” and that we “may grant or deny the motion in whole or in part and subject to such
conditions as [we] may deem proper.” Tenn. R. App. P. 14(a), (b). As Mother has made no such motion,
we will not consider any post-judgment facts.
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On appeal, we review a trial court’s findings of fact de novo upon the record
“accompanied by a presumption of the correctness of the finding, unless the preponderance
of the evidence is otherwise.” Tenn. R. App. P. 13(d); In re Gabriella D., 531 S.W.3d 662,
680 (Tenn. 2017). However, the heightened burden of proof in termination proceedings
requires this Court to 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
Carrington H., 483 S.W.3d at 524. A trial court’s ruling regarding whether the evidence
sufficiently supports termination is a conclusion of law that we review de novo with no
presumption of correctness. In re Gabriella D., 531 S.W.3d at 680.
ANALYSIS
I. GROUNDS FOR TERMINATION
The trial court determined that the evidence clearly and convincingly established
three statutory grounds upon which Mother’s parental rights could be terminated. This
court is required to review, inter alia, the trial court’s findings as to each ground. See In re
Carrington H., 483 S.W.3d at 525. Thus, we will address each ground in turn.
A. Substantial Noncompliance with the Permanency Plan
Permanency plans are developed for each child in foster care and set forth the
“responsibilities between the parents, the agency and the caseworker[s,]” with the goal of
attaining a permanent living situation for the child. Tenn. Code Ann. § 37-2-403(2)(A). A
parent’s rights may be terminated if “[t]here has been substantial noncompliance by the
parent . . . with the statement of responsibilities in a permanency plan.” Id. § 36-1-
113(g)(2). In order to terminate a parent’s parental rights under this ground, the plan’s
requirements must be “reasonable and related to remedying the conditions which
necessitate[d] foster care placement.” In re Valentine, 79 S.W.3d at 547 (quoting Tenn.
Code Ann. § 37-2-403(a)(2)(C)).
In the order terminating Mother’s parental rights, the trial court found that Mother’s
responsibilities under the plans “were all reasonably related to the reasons that necessitated
foster care and in the best interests of the children” and Mother does not challenge this
finding. Thus, it has been established that the plan’s requirements are “reasonable and
related to remedying the conditions which necessitate[d] foster care placement.” Id.Mother contends the permanency plans should be considered “void by operation of
law” because the juvenile court did not ratify the permanency plan created on March 22,
2017, within 60 calendar days. We disagree. As we have explained:
[T]he requirement contained in Tennessee Code Annotated § 37-2-
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403[(a)(2)(A)], directing the juvenile court to ratify the permanency plan
within sixty days, is “directory and not mandatory.” In re A.W., 114 S.W.3d
541, 546 (Tenn. Ct. App. 2003). Ergo, a permanency plan that is not ratified
within this timeframe is not considered a nullity. Id.In re Dustin L., No. E2015-02265-COA-R3-PT, 2016 WL 5416333, at *1 n.2 (Tenn. Ct.
App. Sept. 28, 2016); e.g. In re K.S., No. E2018-02274-COA-R3-PT, 2019 WL 3526384,
at *8 (Tenn. Ct. App. Aug. 2, 2019); In re Dravyn L.D., No. M2009-00357-COA-R3-PT,
2010 WL 681344, at *4 (Tenn. Ct. App. Feb. 25, 2010); In re B.D., No. M2008-01174-
COA-R3-PT, 2009 WL 528922, at *17 (Tenn. Ct. App. Mar. 2, 2009). Accordingly, we
shall proceed to consider whether Mother failed to substantially comply with the
permanency plan.
We note that Mother does not argue that she was unaware of the conditions placed
upon her. In fact, Mother reviewed the requirements with Ms. Ridgell, her DCS
caseworker, on June 22, 2018, and Mother was represented by counsel throughout these
proceedings and never objected to the applicability or reasonableness of the plans.
Mother did not maintain contact with DCS case workers as the plan required, and
she did not inform DCS of her move from Knoxville to Maryville. Though Mother had
asked that Ms. Ridgell communicate with her by email or text message (for her “personal
safety”) rather than by a phone call, when Ms. Ridgell emailed and texted Mother, as
requested, she often received no reply to her emails or text messages.
Mother attended few CFTMs and no Foster Care Review Board meetings.
Moreover, Mother participated in only two of six meetings scheduled with DCS between
May 2019 and trial. When Mother did participate, Ms. Ridgell described Mother as
combative, which made it difficult to do case management with her.
Mother failed to complete any mental health requirements. Mother participated in
alcohol and drug assessments but did not follow through with the required intensive
outpatient treatment to address her mental health issues and substance abuse, nor did she
attend parenting classes. Additionally, she did not obtain a sober sponsor, she continued to
test positive for illegal substances, sometimes she refused drug testing altogether, and
continued to deny using methamphetamine even after a having a hair follicle test positive
for the substance. Mother misrepresented to DCS that she attended treatment at Susannah’s
House, when she, in fact, had failed to return for orientation and treatment following the
initial intake assessment. Indeed, Mother provided no documentation that she completed
any treatment at all for mental health or drug issues, and DCS was unable to substantiate
her claims. Mother also failed to complete a parenting course.
Mother had a history of substance and alcohol abuse and for these reasons she was
required to participate in an alcohol and drug assessment and follow all recommendations.
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She testified that she had smoked marijuana since she was 14 years old, and that she “chose
to medicate [her]self.” She had multiple positive drug screens for methamphetamine,
amphetamine, and THC while the Children were in foster care. Mother recognized that she
made poor choices. That recognition, however, did not result in Mother completing drug
treatment or complying with the other requirements that would enable her to regain custody
of the Children.
Mother failed to obtain and maintain adequate or appropriate housing. For example,
Mother’s apartment in Knoxville was deemed inappropriate for the Children due to the
lack of food and lack of an appropriate area for the Children to sleep.
Although Mother was employed at the time of trial, she failed to maintain
employment as required by the permanency plan. Moreover, when she was employed, she
did not pay child support and was 18 months in arrears at the time of trial.
Mother did not maintain regular visitation with the Children.9 She told DCS that she
would no longer visit the Children due to her fear of being arrested. The last time Mother
visited the Children was in January 2019. Ms. Ridgell attempted to set up a meeting with
Mother and the Children’s Guardian ad Litem to work toward reinstatement of visitation,
but Mother never committed to a time.
The evidence in the record preponderates in favor of the trial court’s findings of fact
and those facts amount to clear and convincing evidence that Mother was substantially
noncompliant with her responsibilities under the permanency plans. Accordingly, we
affirm the trial court’s finding with respect to this ground.
B. Abandonment by Incarcerated Parent—Wanton Disregard
Abandonment by conduct exhibiting wanton disregard is designated as a ground for
terminating parental rights and is defined 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 . . . 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 wanton disregard for the welfare of the
9
Mother asserts in her brief that “[DCS] blocked [her] from being able to see her children, then
claim[ed] she failed to visit her children[.]” Mother does not cite to the record in support of this assertion,
see Tenn. R. App. P. 27(a)(7)(A), and “[i]t is not incumbent upon this Court to sift through the record in
order to find proof to substantiate the positions of the parties,” Roberts v. Blount Mem’l Hosp., 963 S.W.2d
744, 748 (Tenn. Ct. App. 1997), abrogated on other grounds by Limbaugh v. Coffee Med. Ctr., 59 S.W.3d
73 (Tenn. 2001). Nonetheless, we have reviewed the record and find no support for Mother’s assertion that
DCS “blocked” her from visitation.
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child.
Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2019). “[A]ctions 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). “[P]robation 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 at867–68.10
In her brief, Mother argues:
[Mother] was incarcerated by Bradley County on February 7, 2019[,] for
failure to appear. . . . The charge was not for any criminal behavior but was
simply for failure to appear in Bradley County, TN. . . . [T]his does not rise
to the level of wanton disregard for the care and maintenance of her children.
Mother misapprehends this statutory ground. At issue is not whether the particular offense
for which Mother was incarcerated is itself one that shows wanton disregard for the
Children’s welfare, but, rather, whether her pre-incarceration conduct exhibited such
wanton disregard. See id. at 866; Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2019). The
incarceration itself—or the reason for it—is not dispositive of the issue; instead, it is “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 (emphasis added).
Mother was arrested on April 15, 2019, in Bradley County and remained
incarcerated until June 3, 2019. Because Mother was incarcerated during part of the four
months immediately preceding DCS’s filing of the action on July 1, 2019, we proceed to
take a closer look to determine whether the behavior that resulted in incarceration is part
of a broader pattern of conduct that renders the Mother unfit or poses a risk of substantial
harm to Payton and Aidan’s welfare.
Mother has had repeated run-ins with law enforcement since the birth of the
Children. She has had multiple arrests for public intoxication, DUI, possession of drugs
and drug paraphernalia, and probation violations. In 2008, she pled guilty to two separate
charges of assault. She was found guilty of DUI, possession of marijuana, and public
10
Evidence relevant to this ground is not limited to the period immediately before the parent’s
incarceration. In re Audrey S., 182 S.W.3d at 871.
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intoxication in 2013. She was arrested in March of 2018 for possession of a schedule VI
drug and possession of drug paraphernalia; she later pled guilty to those charges following
her February 2019 arrest on those outstanding warrants, violation of her probation, and
failure to appear in court. To make things worse, the Children witnessed that arrest.
Furthermore, Ms. Ridgell testified that Payton was angry at Mother and told Aidan that he
“knew this was happening because he could see the wear and tear on her teeth” and that
the experience left Aidan “heartbroken, crying, very hard to console.”
With respect to this ground, the trial court concluded:
Since the children’s births, [Mother]’s criminal activities have resulted in
numerous arrests, convictions, violations of probation, and periods of
incarceration, as evidenced by her certified criminal judgments and
incarceration records, which were admitted into evidence. . . . Almost all
indications are that she abandoned these children presumably because of
drug use and her addictions, even though she was informed and knew it could
lead to the termination of her parental rights.
The evidence in the record preponderates in favor of the trial court’s findings of fact
and supports the trial court’s conclusions. Simply put, Mother’s conduct, particularly her
continued substance use and failure to get adequate treatment for it, reflects a
“me first” attitude and exhibits indifference to the consequences of her actions to Payton
and Aidan. See In re Anthony R., 2015 WL 3611244, at *3.
For the foregoing reasons, we affirm the trial court’s determination that DCS proved
by clear and convincing evidence that Mother exhibited a wanton disregard for the
Children. Accordingly, we affirm the trial court’s ruling on this ground.
C. Failure to Manifest a Willingness and Ability to Assume Custody
Tennessee Code Annotated § 36-1-113(g)(14) provides another ground for
termination of parental rights. To establish this ground, two elements must be proven by
clear and convincing evidence:
(1) the parent or legal guardian failed to manifest an ability and willingness
to personally assume legal and physical custody or financial responsibility of
the child; and (2) placing the child in the parent’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological welfare
of the child.
In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020). The Tennessee Supreme Court
recently explained that “section 36-1-113(g)(14) places a conjunctive obligation on a
parent or guardian,” and thus, the statute is satisfied when the petitioner establishes “by
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clear and convincing proof that a parent or guardian has failed to manifest either ability or
willingness[.]” Id. at 677.
Mother attributes this ground to “personal animosity” and “spite” on the part of
11
DCS. She states in her brief:
The Department of Children’s Services alleged [Mother] failed to
manifest the ability to parent her children, so that they could out of personal
animosity, assume the legal and physical custody of the children. There was
a predetermined decision to block her from seeing and obtaining the custody
of her children so that [DCS] could achieve a victory over her because she
continued to assert her [c]onstitutional [r]ights to the end. . . . In this case
they made no effort to assist the Mother with her transportation problems,
except for giving her gas cards, that did not help her with the 2-hour drive
one way to visit with her children. Nor did they offer any assistance with her
communication problems. Her phone was dependent on wi-fi service and
not reliable. There was obviously more they could have done to support this
Mother, but refused to do so out of spite.
The record does not support Mother’s assertion that DCS refused to help her out of spite.
Moreover, whether DCS “could have done [more]” to help Mother than it did is not
determinative to this ground.
Mother failed to “demonstrate[] [her] willingness by attempting to overcome the
obstacles that prevent[ed] [her] from assuming custody or financial responsibility for the
[Children].” In re Jonathan M., No. E2018-00484-COA-R3-PT, 2018 WL 5310750, at *5
(Tenn. Ct. App. Oct. 26, 2018). She also failed to complete most of her steps of the
permanency plan. She failed to visit the Children consistently and then stopped visiting
altogether due to her fear of being arrested. She continued using illegal substances, as
evidenced by DCS drug screenings, and has not made any significant progress toward
treatment either for her drug use or mental health issues. She struggled to remain employed
and has failed to provide for the Children financially. She is behind on her required child
support payments that collectively amounted to $100 per month, a small amount in
comparison to the actual real cost of raising children. Taken together, it is evident that
Mother failed to manifest an ability or willingness to assume custody or financial
responsibility of the children. Therefore, DCS satisfied the first requirement in Tennessee
Code Annotated § 36-1-113(g)(14).
11
She also cites Tennessee Code Annotated § 36-1-102(1)(A), the statute on abandonment, which
is inapplicable to this ground.
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With regard to the second prong of § 36-1-113(g)(14), whether returning the
children to Mother’s custody “would pose a risk of substantial harm” to the children, the
trial court held:
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. [Mother] has continued to struggle with substance abuse and
mental health issues throughout this custodial episode. She has not provided
[DCS] with proof of completion of any treatment program to date. She has
not visited the children since January 2019, and has taken no steps to have
her visitation and contact with the children reinstated by the Court. The
children are making progress in their respective placements and are working
towards stabilization. It would be detrimental to reintroduce Ms. Gervais
into their lives at this time, considering she has done very little to remedy the
conditions that caused the children to enter foster care.
The evidence preponderates in favor of the trial court’s findings and clearly and
convincingly proves that Mother has failed to show an ability to provide a stable home life
or necessary care for the children over a sustained period of time, and her continued
substance abuse would put the Children at substantial risk of both physical and
psychological harm.
Because, DCS established both prongs of Tennessee Code Annotated § 36-1-
113(g)(14) by clear and convincing evidence, we affirm the trial court’s determination that
this ground was proven.
Having found that grounds exist for terminating Mother’s parental rights, we will
consider the Children’s best interests pursuant to the relevant factors in Tennessee Code
Annotated § 36-1-113(i).
II. THE CHILDREN’S BEST INTERESTS
When at least one ground for termination of parental rights has been established, the
petitioner must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the child’s best interest. In re Bernard T., 319 S.W.3d 586, 606 (Tenn.
2010); Tenn. Code Ann. § 36-1-113(c). While the combined weight of the evidence must
meet the clear and convincing standard, facts considered in the best-interest analysis need
be proven only “by a preponderance of the evidence, not by clear and convincing
evidence.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). “The child’s best interests
must be viewed from the child’s, rather than the parent’s, perspective.” In re Audrey S.,
182 S.W.3d at 878. “In all cases, when 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). Tennessee Code Annotated § 36-
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1-113(i) sets forth nine factors for the court to consider in determining whether termination
is in the best interest of a child.12 “[T]his list [of factors] is not exhaustive, and the statute
does not require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s rights is in the best interest of a child.” In re M.A.R.,
183 S.W.3d 652, 667 (Tenn. Ct. App. Aug. 11, 2005).
The trial court made specific findings regarding seven of the nine best interest
factors, which we discuss below.13
(1) Whether the parent . . . has made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the child’s best interest to be
in the home of the parent . . . [.] Tenn. Code Ann. § 36-1-113(i)(1) (2019).
The trial court found that Mother failed to make any significant progress on the
permanency plan since the Children entered foster care in 2017. Specifically, it found that
although Mother participated in alcohol, drug, and mental health assessments, she did not
complete the prescribed treatment, and she continued to test positive for
methamphetamines, amphetamines, and THC while the Children were in DCS custody.
The trial court further found that Mother “has been unable to obtain the stability necessary
to care for the children and has not demonstrated that she has safe and appropriate housing
for the children.”
Thus, the court found that factor one weighed in favor of termination of Mother’s
parental rights, and the evidence does not preponderate against the trial court’s finding.
(2) Whether the parent . . . 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[.] Tenn.
Code Ann. § 36-1-113(i)(2) (2019).
The trial court found that Mother did not make lasting changes in her lifestyle or
conduct after reasonable efforts were made by DCS to help her. It found that DCS made
multiple referrals on Mother’s behalf and provided her with resources to assist her in
completing her responsibilities under the permanency plan; however, despite its efforts,
Mother continued to struggle with substance abuse, mental health issues, and general
instability. Notably, the trial court found, “she has not followed treatment
12
The Tennessee General Assembly amended the statutory best-interest factors in 2021. See 2021
Tenn. Laws Pub. Ch. 190 (S.B. 205), eff. April 22, 2021. The factors applicable to this appeal are those
identified in Tenn. Code Ann. § 36-1-113(i) (2019), which were in effect when the termination petition
was filed on July 1, 2019.
13
The trial court made no findings regarding factors 5 and 6 and we have concluded they are not
relevant; thus, they are not discussed.
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recommendations to date.” Thus, the court found that factor two weighed in favor of
termination of Mother’s parental rights, and the evidence does not preponderate against the
trial court’s finding.
(3) Whether the parent . . . has maintained regular visitation or other contact with
the child[.] Tenn. Code Ann. § 36-1-113(i)(3) (2019).
The trial court found that Mother had not visited the Children since January of 2019
and that she had taken no steps to have visitation and contact with the Children, and the
evidence does not preponderate against these findings.
(4) Whether a meaningful relationship has otherwise been established between
the parent . . . and the child[.] Tenn. Code Ann. § 36-1-113(i)(4) (2019).
The trial court found “there is no meaningful relationship between Mother and the
children. While there may be a mutual love between the children and [Mother], there does
not appear to be a meaningful parent/child relationship.” The evidence does not
preponderate against this finding.
. . .
(7) Whether the physical environment of the parent’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 . . . consistently unable to care for the child in a safe
and stable manner[.] Tenn. Code Ann. § 36-1-113(i)(7) (2019).
The trial court found “there is crime in [Mother’s] home. [Mother] has continued to
engage in criminal activities throughout this custodial episode, as evidenced by her
criminal judgments and incarceration records.” Although there is no evidence about the
physical environment of Mother’s home in Maryville, where she moved from Knoxville,
the evidence preponderates in favor of the finding that there is criminal activity where
Mother resides due to her use of controlled substances or controlled substance analogues,
which render Mother to be consistently unable to care for the Children in a safe and stable
manner. Thus, the evidence does not preponderate against the trial court’s finding as to
this factor.
(8) Whether the parent’s . . . mental and/or emotional status would be detrimental
to the child or prevent the parent . . . from effectively providing safe and
stable care and supervision for the child[.] Tenn. Code Ann. § 36-1-113(i)(8)
(2019).
The trial court found that “[Mother] continues to struggle with mental health issues
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and has not provided [DCS] with proof of mental health treatment to date.” It also found
that her mental or emotional state would be detrimental to the children and/or would
prevent her from effectively parenting the children,” and the evidence does not
preponderate against these findings.
(9) Whether the parent . . . 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)(9) (2019).
The trial court found that Mother has not paid child support consistently. The record
reveals that Mother has a substantial child support arrearage, that the last two payments
were accomplished by garnishments, and there remains an arrearage that exceeds 18
months of unpaid child support. Thus, the evidence does not preponderate against the trial
court’s finding that factor nine favors termination.
Based on its analysis of the relevant factors, the trial court concluded that it was in
the Children’s best interests for Mother’s parental rights to be terminated. Having
determined the facts as found by the trial court are supported by a preponderance of the
evidence and that the combined weight of the evidence satisfies the clear and convincing
standard of proof, see In re Kaliyah S., 455 S.W.3d at 555, we affirm the trial court’s
determination that it is in the best interests of the Children to terminate Mother’s parental
rights.
III. TERMINATION OF MOTHER’S PARENTAL RIGHTS
“To terminate parental rights, a court must determine that clear and convincing
evidence proves not only that statutory grounds exist but also that termination is in the
child[ren]’s best interest.” In re Valentine, 79 S.W.3d at 546 (citing Tenn. Code Ann. § 36-
1-113(c)). Having affirmed the trial court’s determination that at least one statutory ground
for termination has been proven and that termination of Mother’s parental rights is in the
best interest of the Children, we affirm the termination of Mother’s parental rights as to
Payton and Aidan.
IN CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed against
the appellant, Dana G., for which execution may issue if necessary.
_________________________________
FRANK G. CLEMENT, JR., P.J., M.S.
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