In Re Octavia C.

01/24/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2021
IN RE OCTAVIA C., ET AL.
Appeal from the Juvenile Court for Madison County
No. 59-53260 Christy R. Little, Judge
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No. W2021-00575-COA-R3-PT
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This appeal involves a petition to terminate parental rights. The juvenile court found by
clear and convincing evidence that several grounds for termination as to the mother were
proven: (1) abandonment by failure to support; (2) abandonment by failure to provide a
suitable home; (3) abandonment by an incarcerated parent for failure to support; (4)
abandonment by an incarcerated parent for wanton disregard; (5) substantial
noncompliance with a permanency plan; (6) persistent conditions; (7) severe child abuse;
and (8) failure to manifest an ability and willingness to care for the children. The juvenile
court also found that termination was in the best interests of the children. The mother
appeals. On appeal, the Department of Children’s Services does not defend the grounds of
abandonment by failure to support and abandonment by failure to establish a suitable home.
We reverse the juvenile court in part and affirm in part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in
Part and Affirmed in Part
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.
Alexander D. Camp, Jackson, Tennessee, for the appellant, Betty J. R.
Herbert H. Slatery, III, Attorney General and Reporter, and Kathryn A. Baker, Senior
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
OPINION
I. FACTS & PROCEDURAL HISTORY
Betty J. R. (“Mother”) is a parent to four children: Octavia, Oz, Odessa, and Onyca.
The children all have different fathers, apart from Odessa and Onyca, who are twins and
share a father. This appeal only concerns the termination of Mother’s parental rights as to
Octavia, Odessa, and Onyca. Oz exited custody through a permanent guardianship with
his paternal grandmother during the pendency of this case. Additionally, although the
juvenile court terminated the parental rights of both Mother and the father of the twins,
only Mother appeals.
In March 2018, the Department of Children’s Services (“DCS”) became involved
with the family after receiving a report regarding the children that alleged environmental
neglect and drug exposure. As a result, child protective services investigator (“CPSI”)
Bridgett Love-Morgan visited the home to discuss the allegations with Mother. During the
visit, Mother submitted to a urine drug screen and tested positive for methamphetamine.
CPSI Morgan also observed that the home was cluttered and in disarray: there were dirty
clothes and bags of dirty clothes piled on the floors; the home lacked a working washer
and dryer; the refrigerator was broken; the children ate on the floors due to a lack of chairs
in the kitchen; the living room contained a couch without cushions; the children were
sleeping on bare mattresses on the floor; the home lacked running hot water; and a space
heater was observed running in one of the rooms that contained clutter. Furthermore, one
of the twins was observed with an untreated burn on her arm, and Octavia had what
appeared to be a staph infection due to a spider bite. Following this visit, the juvenile court
entered an emergency protective custody order placing the children in DCS custody on
March 4, 2018. The juvenile court found that there was probable cause to believe that the
children were dependent, neglected, or abused based upon the sworn testimony of CPSI
Morgan concerning drug-exposure and environmental neglect. Thereafter, on March 6,
2018, DCS filed a petition to adjudicate dependency and neglect, and for temporary
custody. The children entered foster care.
In April 2018, the initial permanency plan was developed. After a hearing in June
2018, the juvenile court ratified the initial permanency plan. The responsibilities relevant
to Mother were listed as the following:
1. Obtain legal income and stable housing to provide for the children;
2. Attend services through the Wo/Men’s Resource and Rape Assistance Program
(“WRAP”) and follow recommendations;
3. Submit to hair follicle, urine, and oral drug screens;
4. Complete a mental health assessment with an alcohol and drug (“A&D”) component
and follow recommendations; and
5. Complete parenting classes and follow recommendations. 1
1
The permanency plans in the record contain several additional statements in the “Action Step(s)”
which are obviously not responsibilities of any of the named parents (such as providing services and
conducting background checks). Therefore, we have referenced only those statements which are actually
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Additionally, Mother was responsible for attending visits, providing for her children’s
basic needs at those visits, and informing DCS or the provider if she was running late or
cancelling a visit. The goals of this initial permanency plan were to return to parent or exit
custody with relatives. Mother also signed the DCS form setting forth the criteria and
procedures for termination of parental rights. On April 10, 2018, the juvenile court entered
a preliminary hearing order setting a combined preliminary, adjudicatory, and dispositional
hearing. In addition to the requirements already set forth in the permanency plan, the
juvenile court ordered Mother to: submit to hair follicle drug testing; submit to a mental
health assessment with an A&D component; submit to random drug screens; submit to
homemaker services; submit to in-home services; obtain employment with an income
sufficient to provide for her needs and the needs of her children; have supervised visits
with her children; and have no contact with her former paramour. The order also noted
that Mother was a potential candidate for the new safe baby court (“SBC”) in Madison
County, and if she agreed to participate, all of her scheduled court hearings and reviews
would be heard in SBC. Mother agreed to participate and subsequently signed up for SBC.2
During the month of April, Mother submitted to an oral swab drug screen and a hair follicle
drug screen, both of which resulted in her testing positive for methamphetamine and
amphetamine.
Following Mother’s agreement to participate in SBC, there was a series of SBC
orders entered over the course of the next few months. Throughout these orders, the
juvenile court noted Mother’s progress, added new requirements, and reiterated the
requirements not yet completed. In the first SBC order entered in May 2018, the juvenile
court noted that Mother did not currently have transportation and a working phone.
Furthermore, Mother reported that she did not have suitable clothing for herself and that
her last employment was ten years ago with Waffle House. Mother also reported that she
received a government check for the twins and supplemented her income with odd jobs.
The juvenile court ordered Mother to: comply with all DCS services, court-ordered
services, and SBC services; obtain and maintain employment; obtain and maintain stable
housing; submit to an A&D assessment and follow all recommendations; submit to hair
follicle drug screens; have supervised visits with her children; and complete a mental health
assessment and follow all recommendations. Additionally, the Tennessee Early
Intervention System (“TEIS”) was to evaluate the twins due to their behaviors, counseling
or therapy would be sought for Octavia due to her exhibiting self-harming behaviors, and
DCS was to provide Mother with bus passes to assist with transportation. Many of the
requirements here overlapped with the requirements already set forth in the preliminary
hearing order from April 2018.
the responsibility of Mother.
2
The preliminary hearing occurred on March 6, 2018, but the order from that hearing was not
entered until April 10, 2018. Prior to that order being entered, Mother agreed to participate in SBC on
March 20, 2018, as evidenced by the first SBC order.
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In June 2018, the juvenile court entered an adjudicatory and dispositional hearing
order. Pursuant to Tennessee Code Annotated sections 37-1-129 and 37-1-130, the
juvenile court found that DCS carried the burden of proof that the children were dependent
and neglected and ordered the children to remain in DCS custody. The juvenile court’s
finding of dependency and neglect was based on the fact that Mother, through her counsel,
stipulated to illegal drug use and environmental concerns. The juvenile court noted that
Mother completed her A&D assessment, which recommended that she attend an intensive
outpatient program (“IOP”). Thereafter, the juvenile court entered another SBC order
noting that Mother began her IOP classes, but she left half-way through the program and
missed the remainder of her classes. The juvenile court also noted that Mother had not yet
obtained employment or housing. The juvenile court stated that Mother’s counsel “sternly
admonished her client that she need[ed] to find employment and housing and to get ‘busy’
complying.” The second permanency plan was developed in October 2018 and ratified in
November 2018. Mother also signed the DCS form setting forth the criteria and procedures
for termination of parental rights again. Among other things, the second permanency plan
noted that at the time Mother had steady employment and stable housing, had completed
services through WRAP, had beds for all of the children, had completed an A&D
assessment, had completed an IOP with verification of completion, and was currently
enrolled in parenting classes with two classes left to complete. The second permanency
plan also noted that the family continued to maintain a bond.
In November 2018, the juvenile court entered more SBC orders that continued to
note Mother’s progress, add new requirements, and reiterate the requirements not yet
completed. The juvenile court noted that Mother was now engaged, had stable housing at
the time, was having visits with the children, and had produced a negative drug screen on
July 9, 2018. In a subsequent order, the juvenile court permitted Mother to begin
unsupervised visitation on the weekends. The juvenile court entered another order which
noted that Mother had ultimately completed an IOP in August 2018. In December 2018,
the juvenile court entered an order noting that Mother now had a part-time job but had
tested positive for methamphetamine on her hair follicle drug screen on September 20,
2018. As a result, Mother’s unsupervised visitation on the weekends was temporarily
suspended. However, due to a decrease in levels from the previous hair follicle result in
April 2018, Mother was given the benefit of the doubt and allowed to resume her
unsupervised visitation on the weekends.
In January 2019, Mother obtained a rental home. In February 2019, the children
began a trial home visit with Mother. Prior to the start of the trial home visit, Mother
submitted to a urine drug screen and was negative for illegal drugs. In April 2019, DCS
filed a motion for review raising concerns regarding the trial home visit. A visit was made
to the home on April 3, 2019, and Mother submitted to a drug screen. Mother’s drug screen
results were negative; however, there was a faint line for methamphetamine. DCS
requested an extension of the trial home visit and not a disruption. Therefore, the juvenile
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court entered an order extending the visit for forty-five days past the May 1, 2019
expiration date, which established the new expiration date as June 16, 2019. The juvenile
court entered a subsequent order noting that Mother had tested positive for
methamphetamine on April 8, 2019. While the drug screen results were concerning, at the
time DCS was not willing to disrupt the trial home visit or extend the trial home visit
expiration date beyond June 16, 2019. On June 5, 2019, Mother submitted to a urine drug
screen and tested positive for methamphetamine again. Mother submitted to a second urine
drug screen and tested negative. Afterward, Mother refused to submit to an oral swab drug
screen. Due to Mother’s drug screen results, the juvenile court ordered that Mother would
submit to an oral swab drug test and that the children would submit to hair follicle drug
testing. Mother submitted to her oral swab drug test on June 6, 2019, and the results
received on June 13, 2019 were positive for amphetamine and methamphetamine. On June
18, 2019, after Oz, Odessa, and Onyca all tested positive for methamphetamine, the trial
home visit ended. Thereafter, DCS filed a motion to modify the order for disruption of the
trial home visit, and a petition to adjudicate dependency, neglect, and severe abuse. After
a hearing in August 2019, the juvenile court entered an amended adjudicatory and
dispositional order finding that the four children were dependent and neglected, and that
Oz, Odessa, and Onyca were victims of severe child abuse perpetrated by Mother.
In July 2019, the third permanency plan was developed. After a hearing in August
2019, the juvenile court ratified the third permanency plan. The responsibilities relevant
to Mother were the following:
1. Address budgeting and homemaking (cleaning and schedule for the children);
2. Obtain her driver’s license;
3. Complete an A&D assessment and attend inpatient treatment for substance use;
4. Submit to random urine and oral drug screens as well as hair follicle drug screens;
5. Obtain employment, provide a check stub, and obtain housing;
6. Continue to receive services through CASA to help with chore/behavioral chart for
the children, and participate in family counseling; and
7. Complete services for substance abuse recommended by her psychological
evaluation with parenting assessment.
Additionally, the third permanency plan noted that Mother had completed her
psychological evaluation with a parenting assessment in May 2019, and her parenting
classes in June 2019. The third permanency plan also noted that Mother was currently
homeless and living with her sister. A few months later, the fourth permanency plan was
developed in October 2019. After a hearing in January 2020, the juvenile court ratified the
fourth permanency plan. The responsibilities relevant to Mother were the following:
1. Obtain housing and address budgeting and homemaking (cleaning and schedule for
the children);
2. Schedule an appointment to receive an A&D assessment due to her admitting not
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being able to stay in Jackson treatment program;
3. Complete mental health assessment due to her reporting being depressed and having
anxiety issues; and
4. Comply with hair follicle, urine, and oral drug screens.
Additionally, the fourth permanency plan noted that visitation had stopped due to Mother’s
behavior. The fourth permanency plan also noted that Mother was currently homeless and
living with friends. The goals in this permanency plan were changed to adoption and exit
custody with relative. In January 2020, Mother was incarcerated after she was charged
with aggravated burglary. She was not released until March 2020. In April 2020, the fifth
permanency plan was developed. After a hearing in June 2020, the juvenile court ratified
the fifth permanency plan. The responsibilities relevant to Mother were the following:
1. Complete a new A&D assessment to determine what services were needed;
2. Finish counseling recommended by her mental health assessment;
3. Submit to a hair follicle drug screen and comply with random urine and oral drug
screens;
4. Obtain housing and address budgeting and homemaking (cleaning and schedule for
the children);
5. Resolve all of her legal problems and follow any rules that are given after her court
date; and
6. Participate in supervised visitation with the children over the phone.
On April 21, 2020, DCS filed a petition for termination of parental rights on several
grounds as to Mother: (1) abandonment by failure to visit; (2) abandonment by failure to
support; (3) abandonment by failure to provide a suitable home; (4) abandonment by an
incarcerated parent for failure to support; (5) abandonment by an incarcerated parent for
wanton disregard; (6) substantial noncompliance with a permanency plan; (7) persistent
conditions; (8) severe child abuse; and (9) failure to manifest ability and willingness to
assume custody. On June 18, 2020, Oz exited custody through a permanent guardianship
with his paternal grandmother. On July 8, 2020, the juvenile court entered its order
awarding permanent guardianship of Oz to his paternal grandmother. Also in July 2020,
the court-appointed special advocate (“CASA”), Dr. Karen J. Wood, submitted a report
recommending termination of Mother’s parental rights. In that report, Dr. Wood described
her observations of Mother’s home during the trial home visit:
While visiting in the home when the children were still with [Mother],
it was obvious that the atmosphere in the home was very chaotic. Given this
family’s history, I think it is safe to assume that chaos has been the rule for
all the children all their lives. When I say chaotic, I am referring to several
different aspects of the home. The physical arrangement was cluttered and
frequently filthy. There would be clothes and trash everywhere; food left in
dishes, on the table and on the floor. Everyday things typical in most homes
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were absent or occurred haphazardly. The three younger children (ages 3
and 4 at the time) would be the only ones up when I would come to the home
at 9am. At 11am, they would not have had breakfast. Octavia, then 12,
would be up half the night playing games on her phone.
Possibly the most disturbing aspect of the chaos was that nothing
positive in the home was ever permanent or predictable. The children never
knew what was expected of them or what to expect from the adults in the
home in response to their behaviors. Children of all ages need some way to
make sense of what is going on around them. They need something to bring
order out of the chaos. In most homes, the adults set the structure, establish
the expected behaviors, model appropriate behaviors, reinforce the
child[ren]’s positive behaviors, and correct any inappropriate behaviors. All
of this was missing in [Mother’s] home.
Additionally, Dr. Wood stated that Mother was never able to accomplish consistency,
lacked concern for the children’s overall development, was unable to execute any of the
plans she developed or follow through on any recommendations given by others, and
continued to blame “the system” for illegally keeping her children from her. Dr. Wood
also noted that Octavia had admitted that she did not want to be happy in foster care because
she was afraid Mother would think she was betraying her. Dr. Wood explained that
“[a]lthough Octavia has continued to have her struggles during much of this time, she
finally seems to have found a place where she too is allowed to be a child without the worry
of caring for her younger siblings or helping her mother try to keep the household together.”
Thus, Dr. Wood concluded that “[i]t seems to be only fair that these children be allowed to
get on with their lives and leave [Mother] to deal with her problems and issues without
further derailing theirs.”
In September 2020, Mother filed a response to the petition, wherein she issued a
“blanket denial” as to all of the grounds for termination alleged by DCS. Mother requested
that the petition be dismissed, that DCS be required to continue working with Mother and
her children, and that a goal of the permanency plan be amended to return to parent and/or
exit with a next of kin/relative. The sixth and final permanency plan was developed in
September 2020 and ratified in October 2020. The responsibilities relevant to Mother
were the following:
1. Submit to a new hair follicle drug screen and comply with random urine and oral
drug screens;
2. Provide DCS with the recommendations from her new mental health assessment;
3. Obtain housing and address budgeting and homemaker services for cleaning and
schedules for the children;
4. Complete a new A&D assessment;
5. Set up classes for an IOP;
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6. Visit with Oz at the discretion of his foster mother;
7. Resolve all legal problems and follow any rules that are given after her court date.
In October 2020, Dr. Wood submitted another report recommending termination of
Mother’s parental rights. In that report, Dr. Wood stated that “[t]hese three girls[, Octavia,
Odessa, and Onyca,] deserve the right to get on with their lives without the continued
interference from random, infrequent, dramatic, and, therefore, devastating contacts with
their mother.” In January 2021 and March 2021, Dr. Wood again submitted reports
recommending termination of Mother’s parental rights and reiterating what she stated in
her previous reports.
The petition for termination of parental rights was set to be heard in January 2021;
however, the juvenile court granted Mother’s motion to continue after she received
ambiguous text messages regarding the cancellation of the hearing. Thereafter, on March
5, 2021, the juvenile court held trial on the petition for termination of parental rights.
Mother was not present for the trial. Ms. Tashyra Williams testified as the family service
worker for DCS in this case. Ms. Williams’s role included addressing issues for the
permanency of custody and the well-being of the children. Ms. Williams explained that
the children entered DCS custody for drug exposure after Mother tested positive for
methamphetamine. However, there were also environmental concerns: clothing and food
all in the home; problems with the water; a space heater in the home where one of the
children had burned herself and the burn had not been treated; Octavia had to be treated for
staph infection; and the children were sleeping on mattresses in the living room.
Furthermore, the space heater in the cluttered house and a broken-in porch floor at the
entrance of the home created a hazardous and unsafe environment. Ms. Williams testified
that the environmental concerns alone would have been enough to remove the children
because the home was a danger to the children. Ms. Williams concluded that this was
much more than just bad housekeeping: it was not a good situation.
Throughout DCS’s involvement with this family, there were a total of six
permanency plans. In her testimony, Ms. Williams appropriately described the purpose of
a permanency plan: “It’s the roadmap to get the children home and for us to make sure
their safety, well-being, and permanency is taken care of.” As a roadmap, the permanency
plans included requirements that Mother was asked to complete in order to position herself
as capable of having her children returned to her. Ms. Williams summarized some of
Mother’s requirements that were ordered by the juvenile court, many of which overlapped
with the requirements of the permanency plans: submit to a hair follicle drug test; submit
to a mental health assessment with an A&D component; submit to random drug screens;
submit to homemaker services; submit to in-home services; obtain employment with
income sufficient to provide for her needs and the needs of her children; have supervised
visits with her children; have no contact with her paramour; comply with DCS services,
court-ordered services, and SBC services; obtain housing and maintain stable housing;
submit to an A&D assessment and follow recommendations; allow TEIS to evaluate the
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twins due to their behaviors; and allow Octavia to seek counseling and therapy due to her
self-harm and behaviors. She testified that DCS was making reasonable efforts toward a
permanent and appropriate placement for the children and toward preventing the children
from continuing in foster care unnecessarily. Among other things, DCS provided for the
children’s medical, dental, and mental needs, monitored the children’s education and
daycare needs, provided counseling, offered bus passes to Mother for transportation,
assisted with Mother’s A&D assessment and her IOP, and helped facilitate visitation.
As for Mother’s housing situation, Ms. Williams testified that Mother lived in a
hotel for approximately three months after she was evicted from her home in March 2018.
At one point, Mother was asked to contact the Care Center for housing assistance.
However, the Care Center required a negative drug screen, and Mother could not go
because she admitted that she would test positive for marijuana. Mother was also asked to
contact the Jackson Housing Authority for housing assistance, but she had an outstanding
utility bill that prevented her from this option. Mother eventually found housing with her
new boyfriend who paid all of the bills. In the beginning of his involvement with Mother,
the boyfriend submitted to a urine screen and tested negative, and participated in some of
the SBC hearings. Afterward, Ms. Williams testified that DCS was preparing to begin a
trial home visit, but Mother moved to a hotel again for a month after failing to pay an
outstanding utility bill. According to Ms. Williams, DCS tried to pay the outstanding utility
bill, but Mother would not give DCS the bill because it was in her boyfriend’s name. Due
to Mother’s recurring housing instability, the trial home visit was delayed until February
2019. Ms. Williams explained that Mother had obtained a rental home in January 2019.
Ms. Williams testified that the Guardian ad litem went to this home and found it
appropriate, but it needed some additional furniture. Mother was able to find this needed
furniture without assistance from DCS. Ms. Williams testified that the home was clean
and that Mother had beds for the children. Thus, the trial home visit with the children
began in February 2019.
Ms. Williams testified that during the trial home visit, DCS received a referral in
April 2019 for a drug-exposed child, and Mother submitted to a hair follicle drug screen
and tested positive for methamphetamine. However, Mother had claimed that she used
methamphetamine prior to the trial home visit and that is why she tested positive, so DCS
extended her grace. DCS then received another referral in June 2019 for a drug-exposed
child, the children submitted to hair follicle drug screens, and Mother submitted to an oral
swab drug screen. Mother, Oz, Oncya, and Odessa all tested positive for
methamphetamine. Therefore, the trial home visit ended in June 2019, and Mother was
later evicted from her rental home because she failed to make the utility payments. Ms.
Williams testified that Mother had not had a home of her own since then. Ms. Williams
explained that Mother went to her sister’s home, then to a friend’s home, and she now lived
in Minnesota with a friend. Ms. Williams testified that she had not had an opportunity to
video call Mother and scan the home in order to determine if it was appropriate. Ms.
Williams found out about Mother’s move to Minnesota through one of the foster mothers.
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Because Mother’s current home was out of state, Ms. Williams explained that DCS would
need go through the Interstate Compact for the Placement of Children (“ICPC”) in order
for someone to go to the home in Minnesota and inspect it. According to Ms. Williams,
this would not have been completed by the time the trial was held, but Ms. Williams
admitted that this effort was not made by DCS and that it was not Mother’s fault. Ms.
Williams also admitted that it was not fair to Mother to move forward without inspecting
her home in Minnesota to determine whether an adjustment to her circumstance, conduct,
or conditions had been made. However, Ms. Williams explained that DCS was relieved of
efforts as far as reunification with Mother after the trial home visit was disrupted, which
influenced DCS’s decision to not complete the ICPC.
As for Mother’s employment, Ms. Williams testified that Mother neither provided
a check stub confirming employment, nor any income or support from her alleged jobs to
help with her children’s care. Ms. Williams explained that in the three years she had been
involved with this family, she had not received any confirmation of employment or stable
income from Mother. According to Ms. Williams, Mother claimed to have worked several
jobs during DCS’s involvement with the family: a phone sex operator; a receptionist at a
moving company; an employee with a sitting company; and an employee with a cleaning
service. At one point, Mother also claimed to have been involved with an online training
program to become a reservationist. Despite these claims, DCS never received verification
of Mother’s employment. Ms. Williams testified that Mother did not have transportation,
so DCS gave her bus passes to seek employment, attend visitation, and participate in her
IOP. Therefore, Ms. Williams stated that there should not have been any excuse for Mother
not to seek a job. Although Mother had bus passes, Ms. Williams offered transportation at
one point in order for Mother to complete certain requirements such as WRAP and hair
follicle drug screens, but Ms. Williams also continued to give her the opportunity to
complete these things on her own. Ms. Williams testified that Mother did ultimately obtain
her Tennessee driver’s license to help with the transportation issue, which was a
requirement of her permanency plan.
As for visitation, Ms. Williams testified that Mother attended supervised biweekly
visitation from March 2018 to February 2019, which was the period between removal and
the trial home visit. During that period, Mother was allowed to begin unsupervised
visitation every other weekend in August 2018. Mother’s unsupervised visitation was
temporarily suspended due to her still testing positive for methamphetamine in September
2018. However, Mother’s levels had decreased from her last hair follicle drug screen, and
therefore, she was given the benefit of the doubt and allowed to resume her unsupervised
visits with the children. After the trial home visit ended in June 2019, Ms. Williams set up
supervised visits for two months, which Mother failed to attend. Mother then called in
August 2019 about supervised visits, and Ms. Williams set up those visits for September.
Ms. Williams testified that Mother attended these, but disruptions occurred at each of the
three visits. At the first visit, Mother cursed at the staff and blamed them for the children
reentering DCS custody. At the second visit, Octavia would not sit, was upset with Mother
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that the children had reentered DCS custody, and got into an argument with Mother that
led to the visit being stopped. At the third visit, Ms. Williams spoke with Mother about
her A&D assessment outside, and Mother came back inside upset. Mother told everyone
she was leaving and told the children not to trust DCS. As a result, Ms. Williams explained
that a no-contact order was entered in October 2019 until Mother could behave. However,
Mother was still allowed to contact the children through phone calls. Ms. Williams
testified that Mother still talked to Octavia and would call the twins’ foster mother from
time to time to check on the children. Mother also mailed something to the twins in January
2021. Other than this mail, Ms. Williams testified that Mother had not provided gifts or
presents to the children since 2019.
As for Mother’s progress, Ms. Williams testified that Mother completed her first
A&D assessment and an IOP before the trial home visit. However, after the trial home
visit, Mother failed to complete her second A&D assessment and attempted a second IOP
twice but left within twenty-four hours. Therefore, according to Ms. Williams, Mother had
not really had any treatment for her methamphetamine addiction. Ms. Williams testified
that Mother repeatedly tested positive for methamphetamine. Mother tested positive for
methamphetamine on March 4, 2018; April 10, 2018; April 20, 2018; September 20, 2018;
April 8, 2019; June 5, 2019; and June 6, 2019. Mother produced negative drug screens on
July 9, 2018 and prior to the start of the trial home visit. Ms. Williams testified that Mother
completed her WRAP assessment, but she did not qualify for the program because her
situation was not a current emergency. The WRAP assessment recommended that Mother
complete counseling for her past PTSD, but she refused to attend the counseling. Ms.
Williams also testified that Mother completed her mental health assessment, completed her
parenting classes, and obtained her driver’s license.
Ms. Williams explained that DCS had difficulty contacting Mother, but Mother was
eventually able to find a phone that worked and DCS was then able to contact her.
However, Ms. Williams testified that she still had communication issues with Mother.
According to Ms. Williams, Mother had expressed an interest in having her children
returned to her and objected to any filing of termination. Mother further thought it was in
the best interest of the children for them to be with her. When Ms. Williams disagreed
with her, Mother responded by cursing Ms. Williams, stating that she did not know what
she was talking about, and stating that DCS was trying to trap her children. Ms. Williams
testified that her concerns were that Mother was still using drugs, DCS was not aware of
Mother having housing, DCS did not know if Mother’s current home was safe and who
was in any such home, there was uncertainty if Mother was working and if she could care
for the children, and their only contact with Mother since the filing of the petition for
termination was by telephone. Furthermore, Ms. Williams was especially concerned about
placing Octavia back in the home with Mother due to the drug exposure and the potential
sexual abuse from Mother’s boyfriends. Emphasizing the importance of terminating
Mother’s parental rights, Ms. Williams concluded that “[w]e’ve been going through this
for three years and [Mother] has failed to produce a negative drug screen. We’ve had
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inconsistent housing for three years. It’s just a cycle . . . the kids would be returning to
custody in Minnesota because she’s living with a friend. It’s not her home.”
Ms. Williams testified about her observations regarding the children’s behavior. As
for the twins, it was initially recommended that TEIS evaluate them due to their behaviors.
At nearly three-years-old, the twins were not communicating, threw tantrums from ten
minutes to an hour during foster care placements, and could keep the behavior going on for
hours. Ms. Williams explained that because the twins were beyond the appropriate age for
the TEIS, DCS contacted their school to inquire about an individualized education program
(“IEP”) for the twins for pre-kindergarten. However, Mother would not follow through
with the necessary paperwork so DCS had a difficult time completing the IEP. Mother
also failed to show up at the school to complete an intake with the twins’ counselor. The
IEP appointment was rescheduled, Ms. Williams took Mother to the appointment, and one
of the twins’ appointments was completed. Ms. Williams testified that the twins also had
problems at school: they would tear things up, throw things, not comply with the teachers’
directions, and not follow rules. At one point, the twins were suspended from school, and
DCS took them out of school and sought counseling for them. Ms. Williams stated that on
another occasion DCS could not get their behaviors under control for a month-and-a-half
after they saw Mother, and counseling was sought as a result. Onyca was also having
severe behavior issues where she was sticking things up her nose. DCS had to take Onyca
to the doctor three times because of this behavior. Ms. Williams testified that the twins
participated in play therapy. Ms. Williams physically observed a majority of the therapy
sessions because she transported the twins to most of them. There were still significant
problems with the twins throwing tantrums during play therapy. The twins would have to
participate in the sessions together because it would cause problems when they were
separated, but the play therapy was attempting to do one at a time to develop one-on-one
skills. Ms. Williams testified that “[w]e started seeing progress with them communicating
and [the play therapy] stated that a lot of the concerns that they were seeing with the
tantrums were parenting issues. So building boundaries and sticking to your discipline and
consequences was what was needed.” Ms. Williams concluded that the twins needed a lot
of help.
As for Octavia, Ms. Williams described her as the caregiver for the children as the
oldest sibling, and for this reason, she had never had the opportunity to be a child. Ms.
Williams testified that it was recommended Octavia complete counseling for self-harming
behavior. Ms. Williams explained that Octavia would threaten to harm herself, drink the
ink out of pens, and was upset about being in foster care. Ms. Williams explained that
Octavia did not want to be in foster care because she believed the unfortunate remarks
Mother made about DCS: DCS was against her, DCS was lying, and DCS took her from
Mother. Ms. Williams testified that Octavia also had mental health issues: she had changes
in her mood; she was receiving treatment for depression and anxiety; she stated that she
hears voices that tell her to do things; she threatened to harm her foster mother; she was
defiant and would not follow any rules; she did not want to do chores and was hard to
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parent. Moreover, Ms. Williams testified that Octavia was failing in school because she
was not trying or was not doing her work. However, Ms. Williams testified that Octavia’s
current foster mother was getting her behaviors under control because Octavia had
complied with some of the chores that were asked of her.
Ms. Williams testified that all four children were originally placed in foster care
with one foster family. After the trial home visit ended, Octavia and Oz were placed
together in a second foster home, and the twins were placed together in a second foster
home with their current foster mother. The twins have remained in their foster mother’s
home since then, and although the problems with their behaviors have continued, the foster
mother was still willing to keep and adopt the twins. Octavia and Oz remained together in
their second foster home until May 2020. Octavia then went to live in a third foster home
and stayed there until August 2020. Afterward, Octavia went to live in a fourth foster home
and has remained there since then. Ms. Williams testified that the children saw each other
at least once a month. Ms. Williams explained that Octavia had everyone’s phone number,
so she was able to contact the foster parents. Ms. Williams testified that she saw the
children at least twice a month, has personally observed the twins in the foster mother’s
home, believes it is a safe home, and has seen the twins interact with their foster mother.
Ms. Williams also testified that the twins’ foster mother wanted to adopt the twins, and she
believed it would be in the best interest of the children to terminate Mother’s parental rights
as to the twins and make them eligible for adoption. Ms. Williams explained that the twins
were stable and bonded there, the foster mother loved them, it would harm them
psychologically to have to leave, and they were now cooperating in school. When asked
if the twins express anything about Mother, Ms. Williams testified that they did not. As
for Octavia, Ms. Williams testified that she was concerned about placing her back in the
home with Mother because it was overwhelming for Octavia. Ms. Williams explained that,
although Octavia desired to go back home, she was still afraid that Mother was going to
have boyfriends there who might sexually abuse her, which had happened in the past. Ms.
Williams testified that although Octavia had expressed this interest in going home, she was
conflicted because she was afraid Mother has not changed. Ms. Williams concluded that
Octavia was stable in her current placement, she was not moving from home to home, and
she was not afraid of people sexually abusing her there. Ms. Williams testified that this
would change if Mother’s parental rights were not terminated. Ms. Williams explained
this was a problem because Octavia then would have hope that she would still get to go
home and that may not happen.
The twins’ foster mother testified at trial. At the time of trial, the twins’ foster
mother had fostered the them for nearly two years. During that period, she had the
opportunity to speak with Mother from time to time. She explained that the twins’ bad
behavior was minimal now due to less contact with Mother. She also explained the twins
were concerned as to why Mother was unhappy and upset when they would speak with
Mother. She described the twins’ behavior as better and well-adjusted. The twins’ foster
mother, whom the twins called “Nana,” testified that the twins were part of the family and
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that she was willing to adopt them.
On April 20, 2021, the juvenile court entered a final order terminating parental rights
and a final decree of full guardianship. The juvenile court found by clear and convincing
evidence that several grounds for termination as to Mother were proven: (1) abandonment
by failure to support; (2) abandonment by failure to provide a suitable home; (3)
abandonment by an incarcerated parent for failure to support; (4) abandonment by an
incarcerated parent for wanton disregard; (5) substantial noncompliance with a
permanency plan; (6) persistent conditions; (7) severe child abuse; and (8) failure to
manifest an ability and willingness to care for the children.3 Mother timely filed her notice
of appeal on May 19, 2021.
II. ISSUES PRESENTED
Mother presents the following issue for review on appeal, which we have slightly
restated:
1. Whether the trial court erred when it found that DCS met the burden of proof for
termination of parental rights by clear and convincing evidence.
For the following reasons, we reverse the juvenile court in part and affirm in part.
III. STANDARDS APPLICABLE TO TERMINATION CASES
“A parent’s right to the care and custody of her child is among the oldest of the
judicially recognized fundamental liberty interests protected by the Due Process Clauses
of the federal and state constitutions.” In re Carrington H., 483 S.W.3d 507, 521 (Tenn.
2016). “No civil action carries with it graver consequences than a petition to sever family
ties irretrievably and forever.” In re Kaliyah S., 455 S.W.3d 533, 556 (Tenn. 2015).
Nevertheless, parental rights are not absolute. In re Carrington H., 483 S.W.3d at 522.
Tennessee Code Annotated section 36-1-113 “sets forth the grounds and procedures
for terminating the parental rights of a biological parent.” In re Kaliyah S., 455 S.W.3d at
546. Pursuant to this statute, the petitioner seeking termination of parental rights must
prove two elements. Id. at 552. First, the petitioner must prove the existence of at least
one of the statutory grounds for termination set forth in Tennessee Code Annotated section
36-1-113(g). Id. Second, the petitioner must prove that termination of parental rights is in
the best interest of the child under the factors set forth in Tennessee Code Annotated section
36-1-113(i). Id. Due to the constitutional dimension of the rights at stake, the petitioner
seeking termination must prove both elements by clear and convincing evidence. In re
3
Due to the no-contact order against her that prevented her from visiting the children, DCS
voluntarily dismissed the ground of abandonment by failure to visit as to Mother.
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Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); see Tenn. Code Ann. § 36-1-113(c). “Clear
and convincing evidence enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005), and eliminates any serious or substantial doubt about the correctness of these factual
findings.” Id. (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); State, Dep’t of
Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct. App. 2008)).
Because of this heightened burden of proof applicable in parental termination cases,
we adapt our customary standard of review on appeal. In re Audrey S., 182 S.W.3d at 861.
We review the trial court’s factual findings de novo in accordance with Rule 13(d) of the
Tennessee Rules of Appellate Procedure, presuming each factual finding to be correct
unless the evidence preponderates otherwise. In re Carrington H., 483 S.W.3d at 524. We
then make our own determination regarding “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.” Id. (citing In re Bernard
T., 319 S.W.3d at 596-97). Regarding conclusions of law, “[t]he trial court’s ruling that
the evidence sufficiently supports termination of parental rights is a conclusion of law,
which appellate courts review de novo with no presumption of correctness.” Id. (citing In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).
IV. DISCUSSION
A. Grounds for Termination Against Mother
On appeal, Mother presents the sole issue of whether the trial court erred when it
found that DCS met the burden for termination of parental rights by clear and convincing
evidence.4 In accordance with In re Carrington H., we “review the trial court’s findings
4
Mother’s brief cursorily addresses the several grounds for termination, providing only two
sentences under the heading for “Statutory Grounds for Termination.” Mother’s brief is devoid of any
material discussion as to the grounds for termination. Courts have routinely held that an issue is waived
where a brief fails to make appropriate references to the record, cite to relevant authority in the argument,
or, at the very least, fashion an argument. Burton v. Barna, No. M2015-00132-COA-R3-CV, 2016 WL
769545, at *2 (Tenn. Ct. App. Feb. 26, 2016) (citing Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App.
2000)). “Tennessee Rule of Appellate Procedure 27(a) requires an appellant’s brief to include an argument
that sets forth ‘the contentions of the appellant with respect to the issues presented, and the reasons
therefore, including the reasons why the contentions require appellate relief, with citations to the authorities
and appropriate references to the record . . . .’” In re Mya V., No. M2016-02401-COA-R3-PT, 2017 WL
3209181, at *3 (Tenn. Ct. App. July 28, 2017) (quoting Tenn. R. App. P. 27(a)(7)(A)). However, due to
the exception carved out by the Tennessee Supreme Court, “in an appeal from an order terminating parental
rights [we] must review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interests, regardless of whether the parent challenges these findings on
appeal.” In re Carrington H., 483 S.W.3d at 525-26. We have stated before that the practice employed by
Mother’s counsel “stretch[es] the supreme court’s intention [in In re Carrington H.] to its outer limit.” In
re Mya V., 2017 WL 3209181, at *3. Lawyers are obligated to act as zealous advocates on behalf of their
clients, see generally Tenn. Sup. Ct. R. 8, RPC 8(3), and the desire of In re Carrington H. was not to
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as to each ground for termination and as to whether termination is in the child’s best
interests, regardless of whether the parent challenges these findings on appeal.” In re
Carrington H., 483 S.W.3d at 525-26.
1. Abandonment by Failure to Support
Tenn. Code Ann. §§ 36-1-113(g)(1) & 36-1-102(1)(A)(i)
Pursuant to Tennessee Code Annotated section 36-1-113(g)(1), one ground for
termination exists if a parent has abandoned his or her child. There are several alternative
definitions of abandonment, which are set forth in Tennessee Code Annotated section 36-
1-102(1)(A).
DCS states that it does not defend the ground of abandonment by failure to support
pursuant to Tenn. Code. Ann. § 36-1-102(1)(A)(i). We therefore reverse the trial court’s
finding as to this ground. See In re Colton B., No. M2018-01053-COA-R3-PT, 2018 WL
5415921, at *6 (Tenn. Ct. App. Oct. 29, 2018) perm. app. denied (Tenn. Jan. 22, 2019)
(“[W]hen the petitioner who sought termination has conceded on appeal that a ground was
not sufficiently proven, this Court has, in several cases, reversed the trial court's finding as
to that ground without reaching the merits of whether the ground was actually
established.”); In re Zane W., No. E2016-02224-COA-R3-PT, 2017 WL 2875924, at *7
(Tenn. Ct. App. July 6, 2017) perm. app. denied (Tenn. Sept. 26, 2017) (reversing a ground
that DCS “does not defend” and noting that In re Carrington H. “has never been construed
to require this Court to also consider the grounds sustained by the trial court and thereafter
conceded or waived by the non-parent on appeal”).
2. Abandonment by Failure to Provide a Suitable Home
Tenn. Code Ann. §§ 36-1-113(g)(1) & 36-1-102(1)(A)(ii)
DCS also states that it does not defend the ground of abandonment for failure to
provide a suitable home pursuant to Tenn. Code. Ann. § 36-1-102(1)(A)(ii). We therefore
reverse the trial court’s finding as to this ground. See In re Colton B., 2018 WL 5415921,
at *6; In re Zane W., 2017 WL 2875924, at *7.
3. Abandonment by an Incarcerated Parent
Tenn. Code Ann. §§ 36-1-113(g)(1) & 36-1-102(1)(A)(iv)
sanction any reduction of that obligation. Rather, it was to “advance the important goal of concluding
parental termination litigation as rapidly as possible ‘consistent with fairness.’” In re Carrington H., 483
S.W.3d at 525 (citing Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U.S. 18, 32 (1981); In re
D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003)). Therefore, as we have done in the past, we caution against the
use of the Tennessee Supreme Court’s holding in this manner. See In re Artemas A., No. W2021-00058-
COA-R3-PT, 2021 WL 4352540, at *8 n.7 (Tenn. Ct. App. Sept. 24, 2021); In re Edward R., No. M2019-
01263-COA-R3-PT, 2020 WL 6538819, at *6 n.3 (Tenn. Ct. App. Nov. 6, 2020); In re Yariel S., No. E2016-
00937-COA-R3-PT, 2017 WL 65469, at *6 (Tenn. Ct. App. Jan. 6, 2017).
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In addition to the definitions of abandonment already discussed, a third alternative
definition of abandonment is provided under Tennessee Code Annotated section 36-1-
102(1)(A) as:
(iv) A parent . . . is incarcerated at the time of the filing of a proceeding,
pleading, petition, or amended petition to terminate the parental rights of the
parent . . . of the child who is the subject of the petition for termination of
parental rights or adoption, or a parent . . . has been incarcerated during all
or part of the four (4) consecutive months immediately preceding the filing
of the action and has:
(a) Failed to visit, has failed to support, or has failed to make reasonable
payments toward the support of the child for four (4) consecutive months
immediately preceding the parent’s or guardian’s incarceration;
(b) Failed to visit, has failed to support, or has failed to make reasonable
payments toward the support of the child during an aggregation of the first
one hundred twenty (120) days of non-incarceration immediately preceding
the filing of the action; or
(c) Has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(iv)(a)-(c). We have “indicated that the above
definition ‘contains multiple ways of abandonment for termination of parental rights.’” In
re Navada N., 498 S.W.3d 579, 598 (Tenn. Ct. App. 2016) (citing In re Kierra B., No.
E2012-02539-COA-R3-PT, 2014 WL 118504, at *8 (Tenn. Ct. App. Jan. 14, 2014)). We
have explained that incarceration is a condition precedent for this definition of
abandonment:
[A]bandonment by an incarcerated parent may only apply where the parent .
. . “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 . . . has been
incarcerated during all or part of the four (4) months immediately preceding
the institution of such action or proceeding.”
Id. (citing Tenn. Code Ann. § 36-1-102(1)(A)(iv)). “[T]he parent’s incarceration serves
only as 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 . . . .” In re Audrey S., 182 S.W.3d at 866. We have further
explained that while “parental incarceration is a strong indicator that there may be problems
in the home that threaten the [children’s] welfare,” it “is not an infallible predictor of
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parental unfitness.” Id.Under this definition of abandonment, the juvenile court found that DCS met its
burden in proving the ground of abandonment by an incarcerated parent both for failure to
support and for wanton disregard. DCS breaks these two tests into separate grounds in its
brief on appeal, but alleged them together as one ground in the petition. The juvenile court
addressed the tests together as one ground under abandonment by an incarcerated parent.
Out of an abundance of caution, we review the failure to support and wanton disregard as
separate grounds under this particular definition of abandonment. See In re Navada N.,
498 S.W.3d at 591 n.8 (“In an abundance of caution, we review each definition of
abandonment alleged in the petition and found by the trial court.”). The petition, testimony,
and CASA reports reflected that Mother was arrested and incarcerated for aggravated
burglary. Mother was arrested and incarcerated in January 2020, and she was released in
March 2020. The petition for termination was filed on April 21, 2020. Thus, Mother was
incarcerated during part of the four consecutive months immediately preceding the filing
of this petition.
We now review whether Mother failed to support her children for four consecutive
months immediately preceding her incarceration. Tenn. Code Ann. § 36-1-
102(1)(A)(iv)(a). At the outset of DCS’s involvement with this family, Mother reported
that her last employment was ten years ago with Waffle House. According to Ms.
Williams, Mother claimed to have worked several jobs during DCS’s involvement with the
family: a phone sex operator; a receptionist at a moving company; an employee with a
sitting company; and an employee with a cleaning service. Despite these claims, DCS
never received verification of Mother’s employment at any time during its three years of
involvement with this family. In a CASA report from October 2020, Dr. Wood noted that
Mother had stated on several occasions that she wanted to start paying child support.
However, Dr. Wood further noted that there was no record of any payments or any
arrangements to begin payments. Throughout DCS’s involvement with this family, Mother
was consistently required and reminded to obtain employment with an income sufficient
to provide for her needs and her children’s needs. In July 2019, approximately five months
before the applicable four-month period, the third permanency plan noted that Mother still
needed to obtain employment and provide a check stub in order to verify her employment.
Following this reminder, Mother did not report that she had obtained employment until
around April 2020, which was after her incarceration and after the subject petition was
filed. Ms. Williams testified that there should not have been any excuse for Mother not to
seek a job because DCS provided her with bus passes. Ms. Williams testified that, to her
knowledge, Mother had not provided any income or support from her various alleged jobs
to help with her children’s care. The juvenile court credited the testimony of Ms. Williams.
“Because the trial court is able to observe witnesses as they testify, appellate courts afford
deference to the trial court’s credibility assessments of live, in-court testimony.” Phillips
v. Hatfield, 624 S.W.3d 464, 474 (Tenn. 2021) (citing Kelly v. Kelly, 445 S.W.3d 685, 692
(Tenn. 2014); Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783-84 (Tenn. 1999)). Given
- 18 -
Ms. Williams’ testimony concerning Mother’s continual failure to obtain employment,
provide employment verification, and provide income and support for her children, we find
that Mother failed to support her children. Mother has failed to provide financial support
for her children since DCS became involved in March 2018, which includes the four
months immediately preceding her incarceration in January 2020. Therefore, we affirm
the juvenile court’s finding that DCS met its burden of proof on the ground of abandonment
by an incarcerated parent for failure to support.
We now review whether Mother engaged in conduct prior to her incarceration that
exhibited a wanton disregard for the welfare of the children. Tenn. Code Ann. § 36-1-
102(1)(A)(iv)(c). We have explained that the determination of whether a parent engaged
in conduct prior to incarceration exhibiting wanton disregard is not limited to the four
consecutive months immediately preceding the incarceration. See In re Audrey S., 182
S.W.3d at 871 (“If parental conduct which exhibits wanton disregard for the welfare of a
child can constitutionally form a ground for the termination of parental rights, it would
appear to be of no moment whether that conduct occurred during the four months
immediately preceding the parent’s incarceration or at some earlier point in time.”). We
have also explained the scope of wanton disregard as follows:
“Wanton disregard” is not a defined term. Acts amounting to wanton
disregard typically “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).
So “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
838, 867-68 (Tenn. Ct. App. 2005).
In re Kaelyn R., No. E2020-01254-COA-R3-PT, 2021 WL 3878597, at *4 (Tenn. Ct. App.
Aug. 31, 2021). Not only did Mother engage in criminal behavior that led to her
incarceration in January 2020, but Mother also repeatedly tested positive for
methamphetamine. Mother tested positive for methamphetamine on March 4, 2018, April
10, 2018, April 20, 2018, September 20, 2018, April 8, 2019, June 5, 2019, and June 6,
2019. Mother’s substance abuse led to three of her children being exposed to and testing
positive for methamphetamine during the trial home visit. Similar to our holding in In re
Kaelyn R., we find that there is clear and convincing evidence that supports the juvenile
court’s finding that Mother’s pre-incarceration conduct exhibited wanton disregard for the
welfare of her children. Id. at *5. Therefore, we affirm the juvenile court’s finding that
DCS met its burden of proof on the ground of abandonment for wanton disregard.
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4. Substantial Noncompliance with a Permanency Plan
Tenn. Code Ann. § 36-1-113(g)(2)
A parent’s rights may be terminated for substantial noncompliance with the
statement of responsibilities in a permanency plan. Tenn. Code Ann. § 36-1-113(g)(2).
“Tennessee law requires the development of a plan of care for each foster child and further
requires that the plan include parental responsibilities that are reasonably related to the
plan’s goal.” In re Jamel H., No. E2014-02539-COA-R3-PT, 2015 WL 4197220, at *7
(Tenn. Ct. App. July 13, 2015) (citing Tenn. Code Ann. § 37-2-403(a)(2)(A)). To terminate
a parent’s parental rights under this ground, the parent’s noncompliance with the plan must
be substantial, and 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. “In the context of the requirements of the permanency plan, the real worth and
importance of noncompliance should be measured by both the degree of noncompliance
and the weight assigned to that requirement.” Id. at 548. “Determining whether a parent
has substantially complied with a permanency plan involves more than merely counting up
the tasks in the plan to determine whether a certain number have been completed and ‘going
through the motions’ does not constitute substantial compliance.” In re Carrington H., 483
S.W.3d at 537 (citing In re Valentine, 79 S.W.3d at 547).
There were six permanency plans developed throughout DCS’s involvement with
this family. We briefly summarize Mother’s requirements from those plans as follows:
submit to hair follicle, urine, oral drug screens; obtain a stable and safe home; address
budgeting and homemaking; obtain employment and provide a check stub; attend WRAP
services and follow recommendations; complete a mental health assessment with an A&D
component and follow recommendations; complete parenting classes and follow
recommendations; obtain driver’s license; resolve legal problems and follow any rules that
are given after her court date; and participate in supervised visitation with the children.
Given that environmental neglect and drug exposure were the conditions that necessitated
foster care placement, we find that these requirements were reasonable and related to
remedying those conditions. In re Valentine, 79 S.W.3d at 547.
Foremost, Mother submitted to many of her drug screens, but she repeatedly tested
positive for methamphetamine. This demonstrated that she failed to remain drug free.
During the trial home visit, Mother’s substance abuse led to three of her children being
exposed to and testing positive for methamphetamine. Consequently, Mother failed to care
for her children without abusing drugs, and her failure to remain drug free caused her
children to be exposed to the dangers of methamphetamine. Additionally, Mother failed
to obtain a stable and safe home. Due to Mother’s recurring housing instability, the trial
home visit was delayed until February 2019. Mother obtained a rental home in January
2019, but after the trial home visit ended in June 2019, Mother was evicted from her rental
home for failing to make the utility payments. Ms. Williams testified that Mother had not
had a home of her own since then. Ms. Williams explained that Mother went to her sister’s
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home, then to a friend’s home, and lived in Minnesota with a friend at the time of trial. As
for employment, Ms. Williams testified that Mother provided neither a check stub
confirming employment nor any income or support from her alleged jobs to help with her
children’s care. Ms. Williams explained that in the three years she had been involved with
this family, she had not received any confirmation of employment or stable income from
Mother. According to Ms. Williams, Mother claimed to have worked several jobs during
DCS’s involvement with the family: a phone sex operator; a receptionist at a moving
company; an employee with a sitting company; and an employee with a cleaning service.
Despite Mother’s claims, DCS never received verification of her employment.
As for visitation, Ms. Williams testified that Mother attended supervised biweekly
visitation from March 2018 to February 2019, which was the period between removal and
the trial home visit. After the trial home visit ended in June 2019, Ms. Williams set up
supervised visits for two months, which Mother failed to attend. In August 2019, Mother
called about supervised visits, and Ms. Williams set up those visits for September. Ms.
Williams testified that Mother attended these, but disruptions occurred at each of the three
visits. As a result, Ms. Williams explained that a no-contact order was entered in October
2019 until Mother could behave.
The third permanency plan noted that Mother had completed a psychological
evaluation with a parenting assessment in May 2019, and her parenting classes in June
2019. Ms. Williams testified that Mother ultimately completed her mental health
assessment, completed her parenting classes, and obtained her driver’s license. Ms.
Williams also testified that Mother completed her first A&D assessment and an IOP before
the trial home visit. However, after the trial home visit, Mother failed to complete her
second A&D assessment and attempted a second IOP twice but left within twenty-four
hours. Therefore, according to Ms. Williams, Mother had not really had any treatment for
her methamphetamine addiction. Ms. Williams testified that Mother completed her WRAP
assessment, but she refused to attend the recommended counseling for her past PTSD.
Moreover, communication was an issue. Mother obtained a phone which lessened the
communication difficulty between her and DCS, but Ms. Williams testified that she still
had communication issues with Mother. Ms. Williams testified that in one instance Mother
cursed at her, stated that she did not know what she was talking about, and stated that DCS
was trying to trap the children. In another instance, Mother made disparaging remarks
about DCS to Octavia: DCS was against her, DCS was lying, and DCS took her from
Mother. Furthermore, Mother was arrested and incarcerated in January 2020 for
aggravated burglary.
Although Mother completed some of the things required of her, Mother failed to
remain drug free, exposed her children to methamphetamine, failed to obtain a stable and
safe home, failed to obtain and maintain employment, and failed to provide verification of
her employment. Additionally, Mother failed to complete her second A&D assessment
and a second IOP, refused to participate in counseling for her PTSD, was difficult to
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communicate with, was disruptive at visitations, and incurred criminal charges for
aggravated burglary. On several occasions, DCS gave Mother the benefit of the doubt,
extended her grace, and allowed her to have second chances to comply with the
requirements. Given the degree of Mother’s noncompliance and the weight of these
requirements, we find that Mother’s noncompliance was substantial. Therefore, we affirm
the juvenile court’s finding that DCS met its burden on the ground of substantial
noncompliance with the permanency plan.
5. Persistent Conditions
Tenn. Code Ann. § 36-1-113(g)(3)
The fourth ground for termination at issue on appeal is commonly known as
“persistent conditions.” This ground for termination applies when:
(3)(A) The child has been removed from the home or the physical or legal
custody of a parent . . . for a period of six (6) months by a court order entered
at any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist, preventing the
child’s safe return to the care of the parent . . . , or other conditions exist that,
in all reasonable probability, would cause the child to be subjected to further
abuse or neglect, preventing the child’s safe return to the care of the parent .
..;
(ii) There is little likelihood that these conditions will be remedied at an early
date so that the child can be safely returned to the parent . . . in the near future;
and
(iii) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home;
(B) The six (6) months must accrue on or before the first date the termination
of parental rights petition is set to be heard[.]
Tenn. Code Ann. § 36-1-113(g)(3). Each element must be proven by clear and convincing
evidence. In re Valentine, 79 S.W.3d at 550. This Court has stated that this ground applies
“when, by court order, a ‘child has been removed from the home or the physical or legal
custody of a parent . . . for a period of six (6) months’ as a result of a dependency and
neglect petition.” In re Boston G., No. M2019-00393-COA-R3-PT, 2020 WL 2070399, at
*6 (Tenn. Ct. App. Apr. 29, 2020); see also In re D.V., No. E2018-01438-COA-R3-PT,
2019 WL 1058264, at *5 (Tenn. Ct. App. Mar. 6, 2019) (“The child must have been
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removed from the home or the physical or legal custody of a parent/guardian for a period
of six (6) months by a court order entered following a petition alleging that the child is a
dependent and neglected child.”).
The children were initially removed from Mother’s custody on March 4, 2018,
pursuant to the juvenile court’s emergency protective custody order placing the children in
DCS custody, finding probable cause that the children were dependent, neglected, or
abused based upon the sworn testimony of CPSI Morgan concerning drug-exposure and
environmental neglect. Thereafter, on March 6, 2018, DCS filed a petition to adjudicate
dependency and neglect, and for temporary custody. In June 2018, the juvenile court
entered an adjudicatory and dispositional hearing order. Pursuant to Tennessee Code
Annotated sections 37-1-129 and 37-1-130, the juvenile court found that DCS carried the
burden of proof that the children were dependent and neglected, and ordered the children
to remain in DCS custody. The juvenile court’s finding of dependency and neglect was
based upon the fact that Mother, through her counsel, stipulated to illegal drug use and
environmental concerns. In February 2019, the children began a trial home visit with
Mother. On June 18, 2019, after Oz, Odessa, and Onyca all tested positive for
methamphetamine, the trial home visit ended. DCS filed a petition for termination of
parental rights on April 21, 2020.
Mother failed to remedy the conditions that led to the removal of her children. See
Tenn. Code Ann. § 36-1-113(g)(3)(A)(i). Mother failed to address her substance abuse.
Mother repeatedly tested positive for methamphetamine. During the trial home visit,
Mother’s substance abuse led to three of her children being exposed to and testing positive
for methamphetamine. Ms. Williams testified that Mother completed her first A&D
assessment and her IOP before the trial home visit. However, after the trial home visit,
Mother failed to complete her second A&D assessment, and attempted a second IOP twice,
but left each time within twenty-four hours. Therefore, according to Ms. Williams, Mother
had not really had any treatment for her methamphetamine addiction. Additionally, Mother
failed to address her housing. The children were removed from Mother’s home in March
2018 due to environmental concerns that posed a danger to the children. Due to Mother’s
recurring housing instability afterward, the trial home visit was delayed until February
2019. After the trial home visit ended in June 2019, Mother was evicted from her rental
home for failing to make the utility payments. Ms. Williams testified that Mother had not
had a home of her own since then. Ms. Williams explained that Mother went to her sister’s
home, then to a friend’s home, and she now lived in Minnesota with a friend. Before the
filing of the petition on April 21, 2020, Mother had more than two years to remedy these
conditions. Nearly a year later, on March 5, 2021, the juvenile court held a trial on the
petition for termination of parental rights, and the suitability of Mother’s housing still
remained unaddressed. Thus, we find that there is little likelihood that these conditions
will be remedied at an early date so that the child can be safely returned to the parent in the
near future. See Tenn. Code Ann. § 36-1-113(g)(3)(A)(ii).
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Furthermore, continuing Mother’s relationship with the children would greatly
diminish their chances of early integration into a safe, stable, and permanent home. See
Tenn. Code Ann. § 36-1-113(g)(3)(A)(iii). When the twins came into DCS custody, they
exhibited problematic behavior. Ms. Williams testified that the twins also had problems at
school. At one point, the twins were suspended from school, and DCS took them out of
school and sought counseling for them. Ms. Williams stated that on another occasion DCS
could not get their behaviors under control for a month-and-a-half, and counseling was
sought as a result. Specifically, Onyca was having severe behavior issues where she was
sticking things up her nose. After the twins participated in play therapy, Ms. Williams
testified that they had made noticeable progress with their behaviors. Ms. Williams
concluded that the twins needed a lot of help. Ms. Williams explained that the twins were
now stable and have bonded with their foster mother, their foster mother loved them, it
would harm them psychologically to have to leave, and they were now cooperating in
school. As for Octavia, Dr. Wood noted that Octavia had admitted that she did not want
to be happy in foster care because she was afraid Mother would think she was betraying
her. Ms. Williams testified that she was concerned about placing Octavia back in the home
with Mother because it was overwhelming for Octavia. Ms. Williams explained that
Octavia desired to go back home, but she was still afraid that Mother was going to have
boyfriends there and that she might be sexually abused since that had occurred in the past.
Ms. Williams testified that although Octavia had expressed this interest in going home, she
was conflicted because she was afraid Mother has not changed. Ms. Williams concluded
that Octavia was stable in her current placement, she was not moving from home to home,
and she was not afraid of people sexually abusing her. Ms. Williams testified that that
would change without termination, because Octavia would have hope that she would still
get to go home and that may not happen. Dr. Wood reported that Octavia “finally seems
to have found a place where she too is allowed to be a child without the worry of caring
for her younger siblings or helping her mother try to keep the household together.” Dr.
Wood stated that Mother failed to set the structure, establish the expected behaviors, model
appropriate behaviors, reinforce the children’s positive behaviors, and correct any
inappropriate behaviors. According to Dr. Wood, chaos had been the rule for all of the
children for all of their lives. Moreover, Mother was unable to consistently provide
housing for the children, let alone for herself, throughout DCS’s involvement. For these
reasons, we find that continuing the parent-child relationship would greatly diminish the
children’s chances of early integration into a safe, stable, and permanent home.
This Court has explained that a trial home visit does not return custody to the parent,
but only temporary, physical custody. See In re A.R., No. W2008-00558-COA-R3-PT,
2008 WL 4613576, at *16 (Tenn. Ct. App. Oct. 13, 2008) (holding that the trial home visit
did not return custody of the child to the mother). The juvenile court clarified this in the
order terminating parental rights stating that it found in actuality there had only been one
custodial episode for the children. DCS inadvertently stated that there had been two
custodial episodes because of the trial home visit. Even if that was not the case, we would
still find that the children were removed from Mother’s custody for a period of six months
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accruing on or before the first date the termination of parental rights petition was set to be
heard. Tenn. Code Ann. § 36-1-113(g)(3)(B). As such, we affirm the juvenile court’s
finding that DCS met its burden on the ground of persistent conditions.
6. Severe Child Abuse
Tenn. Code Ann. §§ 36-1-113(g)(4) & 37-1-102(b)(27)
A parent’s rights may be terminated when “[t]he parent . . . has been found to have
committed severe child abuse, as defined § 37-1-102, under any prior order of a court or is
found by the court hearing the petition to terminate parental rights . . . to have committed
severe child abuse against any child.” Tenn. Code Ann. § 36-1-113(g)(4). In January
2021, the juvenile court entered an order finding that Octavia, Oz, Odessa, and Onyca
suffered from abuse and/or neglect. The juvenile court also found that Oz, Odessa, and
Onyca were victims of severe child abuse, as defined by Tennessee Code Annotated section
37-1-102(b)(27), perpetrated by Mother due to methamphetamine exposure. As this Court
has explained, “a trial court may rely on a prior court order finding severe child abuse and
is not required to re-litigate the issue of severe abuse during the termination trial.” In re
Alexis S., No. M2018-00296-COA-R3-PT, 2018 WL 6267180, at *10 (Tenn. Ct. App. Nov.
30, 2018); see In re Samaria S., 347 S.W.3d 188, 201 (Tenn. Ct. App. 2011); State, Dep’t
of Children’s Servs. v. M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10
(Tenn. Ct. App. Mar. 8, 2005). Therefore, we affirm the juvenile court’s finding that DCS
met its burden of proof on the ground of severe child abuse.
7. Failure to Manifest an Ability & Willingness to Care for the Children
Tenn. Code Ann. § 36-1-113(g)(14)
A ground for termination exists when “[a] parent . . . has failed to manifest, by act
or omission, an ability and willingness to personally assume legal and physical custody or
financial responsibility of the child, and placing the child in the person’s legal and physical
custody would pose a risk of substantial harm to the physical or psychological welfare of
the child[.]” Tenn. Code Ann. § 36-1-113(g)(14). Under this statutory ground, there are
two elements necessary to prove. In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020).
The first element “places a conjunctive obligation on a parent . . . to manifest an ability and
willingness to personally assume legal and physical custody or financial responsibility for
the child.” Id. at 677. Accordingly, “clear and convincing proof that a parent . . . has failed
to manifest either ability or willingness” satisfies the first element of this ground. Id.
(adopting In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *13
(Tenn. Ct. App. June 20, 2018)). A parent’s ability to assume custody or financial
responsibility is evaluated based “on the parent’s lifestyle and circumstances.” In re Zaylee
W., No. M2019-00342-COA-R3-PT, 2020 WL 1808614, at *5 (Tenn. Ct. App. Apr. 9,
2020) (citing In re Ayden S., 2018 WL 2447044, at *7). It is common for parents to state
that they are willing to assume custody or financial responsibility for their children.
However, as we have explained, “[w]hen evaluating willingness, we look for more than
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mere words.” In re Jonathan M., No. E2018-00484-COA-R3-PT, 2018 WL 5310750, at
*5 (Tenn. Ct. App. Oct. 26, 2018). The second element requires the petitioner to establish
that “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[.]” Tenn. Code Ann.
§ 36-1-113(g)(14); see In re Neveah M., 614 S.W.3d at 677.
Mother’s children were placed in DCS custody in March 2018. After three years,
Mother did not yet have the ability to assume custody at the time of trial. Mother did not
have a suitable home of her own at the time of trial, and had not had a home of her own
since she was evicted from her rental home in June 2019. Mother had ample time, but she
failed to establish a safe, stable, and drug-free home and failed to address her substance
abuse. Moreover, Mother demonstrated that she was unable to financially support her
children by failing to obtain employment and provide verification of that employment
throughout DCS’s involvement with this family. While Mother thought it was in the best
interest of the children for them to be with her, Mother failed to demonstrate through her
actions that she was willing to assume custody or financial responsibility for the children.
Furthermore, the record demonstrates that placing the children in Mother’s custody
would pose a risk of substantial harm to the physical or psychological welfare of the
children. According to Ms. Williams, Mother had not really had any treatment for her
methamphetamine addiction. Mother’s substance abuse was an ongoing issue throughout
DCS’s involvement, and one that led to three of her children being exposed to
methamphetamine. Ms. Williams testified that the twins had made noticeable progress
with their behaviors since being removed from Mother’s custody. The twins’ foster mother
explained that the twins’ behavioral issues were minimal now due to their having less
contact with Mother. She described the twins’ behavior as better and well-adjusted. Ms.
Williams testified that she was concerned about placing Octavia back in the home with
Mother because it was overwhelming for Octavia. Ms. Williams explained that Octavia
was conflicted in her desire to go back home because she was still afraid that Mother was
going to have boyfriends there and that she might be subjected to sexual abuse again. Ms.
Williams concluded that Octavia was stable in her current placement. According to Ms.
Williams, placing the children back in the home with Mother would be returning them to
a “cycle” of what they had previously been through. Moreover, from her observations
during the trial home visit, Dr. Wood stated that Mother failed to set the structure, establish
the expected behaviors, model appropriate behaviors, reinforce the children’s positive
behaviors, and correct any inappropriate behaviors. Dr. Wood opined that chaos had been
the rule for all of the children for all of their lives. Octavia finally had a chance to be a
child, and was not burdened with caring for her younger siblings or helping Mother try to
keep the household together. For these reasons, we agree that returning the children to
Mother would pose a substantial risk to the welfare of the children.
Therefore, we affirm the juvenile court’s finding that DCS met its burden of proof
on the ground of failure to manifest an ability and willingness to assume legal and physical
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custody or financial responsibility of the children.
B. Best Interests of the Children
We now review whether termination of Mother’s parental rights was in the best
interests of the children. This Court “must consider nine statutory factors listed in
Tennessee Code Annotated § 36-1-113(i).” In re Gabriella D., 531 S.W.3d 662, 681
(Tenn. 2017). “The relevancy and weight to be given each factor depends on the unique
facts of each case. Thus, depending upon the circumstances of a particular child and a
particular parent, the consideration of one factor may very well dictate the outcome of the
analysis.” In re Audrey S., 182 S.W.3d at 878. We view the children’s best interests from
the children’s perspective rather than the parent’s perspective. Id. Finally, we “must
consider all of the statutory factors, as well as any other relevant proof any party offers.”
In re Gabriella D., 531 S.W.3d at 682. However, “a finding on each factor is not required.”
In re Kaylene J., No. E2019-02122-COA-R3-PT, 2021 WL 2135954, at *18 (Tenn. Ct.
App. May 26, 2021); see In re Matthew T., No. M2015-00486-COA-R2-PT, 2016 WL
1621076, at *16 (Tenn. Ct. App. April 20, 2016) (citing In re Dominique L.H., 393 S.W.3d
710, 719 (Tenn. Ct. App. 2012)).
The first statutory factor is whether Mother “has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child[ren]’s best interest
to be in the home of the parent or guardian[.]” Tenn. Code Ann. § 36-1-113(i)(1). At the
time of trial, Mother did not have a home and was staying with a friend in Minnesota.
Mother failed to address her substance abuse issue by failing to complete her second A&D
assessment and a second IOP after she exposed the children to methamphetamine during
the trial home visit, and by repeatedly using methamphetamine since the children entered
DCS custody in March 2018. We find that this factor weighs in favor of termination.
The second statutory factor is whether Mother “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). From the children’s removal in March 2018 until trial held in March
2021, Mother had three years to effect a lasting adjustment. Mother repeatedly tested
positive for methamphetamine, exposed her children to methamphetamine, failed to obtain
appropriate housing, and failed to obtain employment and provide verification of that
employment. Mother also failed to complete her second A&D assessment and a second
IOP, and refused to attend the recommended counseling for her past PTSD. These issues
remain after DCS had made reasonable efforts to assist Mother in making a lasting
adjustment. DCS gave Mother multiple opportunities to comply with the requirements.
DCS also provided for the children’s medical, dental, and mental needs, monitored the
children’s education and daycare needs, provided counseling, offered bus passes to Mother
for transportation, assisted with Mother’s A&D assessment and her IOP, and helped
facilitate visitation. As such, we find that this factor weighs in favor of termination.
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The third statutory factor is whether Mother “has maintained regular visitation or
other contact with the child[ren.]” Tenn. Code Ann. § 36-1-113(i)(3). Ms. Williams
testified that Mother attended supervised biweekly visitation from March 2018 to February
2019, which was the period between removal and the trial home visit. After the trial home
visit ended in June 2019 due to Mother’s drug use, Ms. Williams set up supervised visits
for two months, which Mother failed to attend. Mother then called in August 2019 about
supervised visits, and Ms. Williams set up those visits for September. Although Mother
attended these, disruptions occurred at each of the three visits. As a result, a no-contact
order was entered in October 2019 until Mother could behave. However, Mother was still
allowed to contact the children through phone calls. The proof showed that Mother had
not participated in in-person visitation since October 2019 due to her own behavior, and
she only contacted her children by phone from time to time afterward. Therefore, we find
that this factor weighs in favor of termination.
The fourth statutory factor is “[w]hether a meaningful relationship has otherwise
been established between [Mother] and the child[ren.]” Tenn. Code Ann. § 36-1-113(i)(4).
Ms. Williams testified that although Octavia had expressed interest in going home, she was
conflicted because she was afraid Mother has not changed. Ms. Williams testified that the
twins do not express anything about Mother. Dr. Wood stated that Mother failed to give
the children structure in their lives, and that the children never knew what was expected of
them. Dr. Wood also noted that Octavia had admitted that she did not want to be happy in
foster care because she was afraid Mother would think she was betraying her. Dr. Wood
stated that Mother lacked concern for the children’s overall development. We find that the
record evinces a lack of a meaningful relationship between Mother and her children.
Therefore, we find that this factor weighs in favor of termination.
The fifth statutory factor is “[t]he effect a change of caretakers and physical
environment is likely to have on the child[ren]’s emotional, psychological and medical
condition[.]” Tenn. Code Ann. § 36-1-113(i)(5). Ms. Williams explained that the twins
were stable and bonded with their foster mother, their foster mother loved them, and it
would harm them psychologically to have to leave. The twins’ foster mother explained
that the twins’ behavioral issues were minimal now and that the twins were part of the
family. As for Octavia, Ms. Williams testified that she was concerned about placing
Octavia back in the home with Mother because it was overwhelming for Octavia, and there
were concerns about exposure to sexual abuse. Ms. Williams testified that although
Octavia had expressed this interest in going home, she was conflicted because of Mother’s
conduct. Ms. Williams concluded that Octavia was stable in her current placement, she
was not moving from home to home, and she was not afraid of people sexually abusing
her. Ms. Williams testified that that would change without termination, because Octavia
would have hope that she would still get to go home and that may not happen. Therefore,
we find that this factor weighs in favor of termination.
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The sixth statutory factor is “[w]hether the parent . . . , or other person residing with
the parent . . . , has shown brutality, physical, sexual, emotional or psychological abuse, or
neglect toward the child[ren], or another child or adult in the family or household[.]” Tenn.
Code Ann. § 36-1-113(i)(6). As explained in the ground on severe child abuse, Mother’s
substance abuse led to three of her children being exposed to and testing positive for
methamphetamine during the trial home visit. Additionally, DCS became involved with
this family in March 2018 because of drug-exposure and environmental neglect. Ms.
Williams also testified that Octavia had been sexually abused in the past by one of Mother’s
boyfriends. We find that this factor weighs in favor of termination.
The seventh statutory factor is “[w]hether the physical environment of [Mother’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[ren] in a safe and stable
manner[.]” Tenn. Code Ann. § 36-1-113(i)(7). As we have previously discussed, Mother
does not currently have a home of her own, and has not had a home of her own since June
2019. After June 2019, Mother went to her sister’s home, then to a friend’s home, and she
now lived in Minnesota with a friend. Additionally, Mother failed to address her substance
abuse issue, an issue that previously led to three of her children being exposed to
methamphetamine. Therefore, we find that this factor weighs in favor of termination.
The eighth statutory factor is whether Mother’s “mental and/or emotional status
would be detrimental to the child[ren] or prevent [Mother] from effectively providing safe
and stable care and supervision for the child[ren .]” Tenn. Code Ann. § 36-1-113(i)(8).
Mother completed both her mental health and WRAP assessments. Mother also completed
her psychological evaluation with a parenting assessment in May 2019. However, Mother
did not complete her recommended counseling for PTSD because she refused to attend.
Mother failed to attend counseling and address her mental health, and therefore, we find
that this factor weighs in favor of termination.
The ninth statutory factor is whether Mother “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). Mother claimed to hold various jobs during the pendency of
this case. Dr. Wood noted that Mother had stated on several occasions that she wanted to
start paying child support. However, there was no record of any payments or any
arrangements to begin payments. Mother failed to provide any income or support since
the children entered DCS custody in March 2018. Mother was aware of her obligation to
support her children and the consequences of not doing so, as she signed the DCS form
setting forth the criteria and procedures for termination of parental rights. Mother was
consistently required and reminded to obtain employment with an income sufficient to
provide for her needs and her children’s needs. Therefore, we find that this factor weighs
in favor of termination.
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We conclude by clear and convincing evidence that termination of Mother’s
parental rights is in the best interest of the children.
V. CONCLUSION
For the aforementioned reasons, we reverse the finding that DCS proved by clear
and convincing evidence that Mother’s parental rights should be terminated due to
abandonment by failure to support and abandonment by failure to provide a suitable home,
but we affirm the ultimate termination of Mother’s parental rights. Costs of this appeal are
taxed to the appellant, Betty J. R., for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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