In Re Kaelyn R.

08/31/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 1, 2021
IN RE KAELYN R.
Appeal from the Circuit Court for Hamblen County
No. 19CV112, 19CV70 Alex E. Pearson, Judge
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No. E2020-01254-COA-R3-PT
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A mother appeals the termination of her parental rights to her daughter. The trial court
concluded that there was clear and convincing evidence that the mother had abandoned her
child by wanton disregard and by committing severe child abuse against her. The court
also concluded that the evidence was clear and convincing that termination of parental
rights was in the child’s best interest. We agree and affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which KENNY W.
ARMSRONG and KRISTI M. DAVIS, JJ., joined.
Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Brittany R.
Herbert H. Slatery III, Attorney General and Reporter, and Lexie A. Ward, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
A.
In January 2019, the Tennessee Department of Children’s Services (“DCS”)
received a report of a possible drug-exposed child. When a Child Protective Services
Investigator looked into the claim, she found the child, Kaelyn, and her mother, Brittany
R. (“Mother”), living in a one-bedroom home with two other adults. When the investigator
began discussing the allegations with Mother, Mother fled via the back door with the four-
month-old child. The investigator enlisted law enforcement to look for Mother and the
child without success.
The following day, the investigator received a phone call from the mother of one of
Mother’s male acquaintances. The child had been left with the caller, and Mother was in
jail on check forgery charges.
When she met with Mother at the jail, the investigator found it difficult to keep
Mother’s attention because she kept nodding off. Mother admitted to the investigator that
she had smoked marijuana the preceding day and had smoked or used methamphetamine
about two days prior to her arrest. Mother consented to a drug screen, which was positive
for marijuana and methamphetamine but also amphetamines and morphine.
DCS petitioned the Hamblen County Juvenile Court to find the child dependent and
neglected and to award it temporary legal custody. The juvenile court granted DCS
temporary custody on an emergency basis and ordered that Mother have no contact pending
further hearing.
Although Mother remained incarcerated, DCS developed a family permanency plan
with her input. Among other things, the plan called for a hair follicle test to be performed
on Kaelyn. The hair follicle test, conducted on March 28, 2019, revealed that Kaelyn had
been exposed to methamphetamine sometime in the previous three months.
Methamphetamine was present at levels twenty-six times that ordinarily required for a
positive result.
The permanency plan also placed several responsibilities on Mother, such as
participating in therapeutic visitation, scheduling and completing an alcohol and drug
assessment, submitting to random drug screens, and resolving all legal issues and refraining
from incurring additional charges. But DCS’s efforts to assist Mother in carrying out her
responsibilities were hampered in two ways. First, DCS had difficulty communicating
with Mother. The initial case manager, who was involved with the case from Kaelyn’s
removal until October 2019, reported only being able to discuss plan responsibilities with
Mother about ten times. She was able to meet with Mother three times while Mother was
incarcerated, but once she was out, Mother often did not return telephone calls or respond
to text messages. The next case manager reported that Mother would not return her
telephone calls or text messages. She eventually was able to contact Mother in December
2019 through Facebook Messenger.
Second, Mother could not avoid time in jail. She was in jail for approximately a
week after her arrest for forgery charges. She was incarcerated again from March 15 to
May 27, 2019, in Hamblen County. And she spent May 28, 2019, in another jail for
violation of probation arising from a previous conviction.
2
Also in May, the juvenile court adjudicated Kaelyn dependent and neglected. The
juvenile court found by clear and convincing evidence that Mother had committed severe
abuse by exposing Kaelyn to methamphetamine. The court ordered that Mother, upon her
release from jail, could have supervised visitation on two conditions. Mother had to
provide proof to the court that she had been clean of methamphetamine for thirty days, and
she had to provide proof of enrollment in a rehabilitation program.
B.
Mother appealed the dependency and neglect decision, but on September 18, 2019,
before the appeal could be heard,1 DCS petitioned the Hamblen County Circuit Court to
terminate Mother’s parental rights. The petition alleged three grounds for terminating
Mother’s parental rights: abandonment by an incarcerated parent, severe child abuse, and
failure to manifest an ability and willingness to assume custody or financial responsibility
of her child.
At trial,2 Mother explained her struggles with drug use and the circumstances
leading up to Kaelyn’s removal. Mother had an older child who was removed by DCS
following an automobile accident in 2016. The child spent approximately two years in
foster care. According to Mother, “that’s when [she] started doing drugs really.” She used
heroin and morphine almost every day.
After surrendering her parental rights to her older child, Mother decided “to get
clean because [she] did not want [the child] to think that [she] was a junkie.” She went
through a treatment program. And she claimed sobriety for a time, including while she
was pregnant with Kaelyn. But then Mother relapsed. She attributed the relapse to an
abusive boyfriend. She used methamphetamine with the boyfriend and then again after she
moved out. Although she could not be sure, Mother conceded the second instance of her
use was shortly before Kaelyn’s removal.
After Mother’s release from jail on May 29, 2019, she moved from place to place.
Her longest stay at any one place was “probably a month or two,” although she could not
recall the address of any place where she stayed. Mother also resumed taking drugs, both
methamphetamine and marijuana, which she attributed to losing custody of Kaelyn. She
estimated that, by the fall of 2019, she was using methamphetamine daily. The DCS case
1
DCS also petitioned to terminate the parental rights of the man Mother claimed to be the father
of Kaelyn. His parental rights, if any, are not at issue.
2
The circuit court consolidated the hearing on the appeal of the dependency and neglect proceeding
with the trial on the petition to terminate. We have previously highlighted the problems that can arise with
such an approach. See In re Envy J., No. W2015-01197-COA-R3-PT, 2016 WL 5266668, *5-6 (Tenn. Ct.
App. Sept. 22, 2016). Although the parties and the court seemed to have avoided such problems in this
instance, the better course is to keep the proceedings distinct. Id. at *6.
3
manager at the time said Mother described herself as “pretty bad strung out” during that
period.
But a turning point occurred on November 26, 2019. Mother remembered that date
because it was the day she found out she was pregnant again. According to Mother, she
“went to rehab probably two days later.”
In December 2019, Mother attended a rehabilitation program in Nashville. She
maintained that she completed the thirty-day program in nineteen days. Mother then
returned to Morristown where she started another rehabilitation program. She left that
program for a residential treatment program that specialized in “moms who are pregnant
or parenting and . . . struggling with addictions.” Mother started the program on February
6, 2020, and other than a two-week absence to be with family, she had been in the program
ever since.
The rehabilitation program director also testified. She explained that, normally, the
program would last until three months after the mother gave birth, but the program could
be extended if needed. When asked how Mother was progressing, the program director
reported that Mother was doing “really well.” She elaborated:
The way we track progress at [the program] is that we – Each mom has to
complete A & D assignments. They also have to complete women’s
treatment. And then they have to complete a Treatment Plan. And they do
all of this before we do their Aftercare Plan, which means what they’re going
to be doing once they leave [the program]. [Mother] has completed at least
seventy percent of her Treatment Plan, which puts her right on the spot where
she’s supposed to be in the program. She’s been a leader while she’s been
there. She’s never missed her IOP. We don’t have to go wake her up or tell
her to come. She’s always where she needs to be without being asked. So,
she’s done really well while she’s there. We have no concerns for her at all.
She’s passed all of her drug screens since she’s been there.
The program director was also asked about Mother leaving the program for two weeks to
be with family. The program director agreed that such absences can be therapeutic,
especially given the anxiety caused by the COVID-19 pandemic. The program director
felt that Mother had been able to maintain her sobriety during her absence.
The circuit court terminated Mother’s parental rights. DCS conceded in closing
argument that it had not proven failure to manifest an ability and willingness to assume
custody or financial responsibility as a ground for terminating Mother’s parental rights.
But the court found clear and convincing evidence that Mother had abandoned Kaelyn by
engaging in conduct prior to her incarceration that exhibited a wanton disregard for the
child’s welfare. And the evidence was clear and convincing that Mother had committed
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severe child abuse by exposing Kaelyn to methamphetamine. The court also determined
that there was clear and convincing evidence showing that terminating Mother’s parental
rights was in the child’s best interest.
II.
A parent has a fundamental right, based in both the federal and state constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547
(Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d at 250.
The government’s interest in the welfare of a child justifies interference with a parent’s
constitutional rights in certain circumstances. See Tenn. Code Ann. § 36-1-113(g) (Supp.
2020).
Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
Parties seeking termination of parental rights must first prove the existence of at least one
of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-113(g).
Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for termination are
shown, they then must prove that terminating parental rights is in the child’s best interest.
Id. § 36-1-113(c)(2).
Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,
215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)).
This heightened burden of proof serves “to minimize the possibility of erroneous decisions
that result in an unwarranted termination of or interference with these rights.” Id. “Clear
and convincing evidence” leaves “no serious or substantial doubt about the correctness of
the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896,
901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the fact-finder’s mind
regarding the truth of the facts sought to be established. In re Bernard T., 319 S.W.3d at
596.
We review the trial court’s findings of fact “de novo on the record, with a
presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); TENN. R. APP. P. 13(d).
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, provide clear and
convincing evidence that supports all the elements of the termination claim.” In re Bernard
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T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de novo with no
presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).
A.
On appeal, Mother argues only that the trial court erred in concluding that it was in
Kaelyn’s best interest to terminate her parental rights. But in parental termination cases,
we must review the trial court’s findings and conclusions as to each ground for termination
it relies on, even if the parent does not challenge such findings and conclusions. In re
Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016). So we review the trial court’s
termination of Mother’s parental rights on the grounds of abandonment by wanton
disregard and severe child abuse.
1. Abandonment By Wanton Disregard
The court found Mother had abandoned Kaelyn under a definition of
“abandonment” applicable to parents who were incarcerated when the petition to terminate
was filed or at any point during the four-month period preceding the filing of the petition.
See Tenn. Code Ann. § 36-1-102(1)(A)(iv). At the time DCS filed its petition to terminate,3
the incarcerated or formerly incarcerated parent was deemed to have abandoned her child
if, among other things, she “ha[d] engaged in conduct prior to incarceration that exhibit[ed]
a wanton disregard for the welfare of the child.” Id. 36-1-102(1)(A)(iv) (2017).
The court found that Mother was incarcerated “during the relevant 4 month window
in that [Mother] was incarcerated at the Hamblen County Jail from March 15, 2019, until
May 27, 2019, and was then transferred to Cocke County Jail for a felony violation of
probation until May 28, 2019.” And the court found that “exposing the child to
methamphetamines . . . and . . . [Mother’s] testimony of her methamphetamine and other
drug use” exhibited wanton disregard for Kaelyn’s welfare.
“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). But the
actions constituting wanton disregard must have occurred at a point in time when the parent
3
Our Legislature amended this definition of “abandonment” in 2020. 2020 TENN. PUB. ACTS 43.
We apply the version of the statute in effect at the time DCS filed its petition to terminate Mother’s parental
rights. See In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).
6
had knowledge of the child’s existence, which can include “a child in utero.” In re
Anthony R., 2015 WL 3611244, at *3.
Clear and convincing evidence supports the court’s finding that Mother’s pre-
incarceration conduct exhibited wanton disregard for Kaelyn’s welfare. Although Mother
denied using methamphetamine in her child’s presence, the court did not accredit her
testimony. And we defer to that determination. McCaleb v. Saturn Corp., 910 S.W.2d
412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997).
Given Mother’s admission of methamphetamine use prior to the child’s removal, we have
no substantial doubt that Mother’s use exposed Kaelyn to the drug. But even if there were
doubt, Mother admitted that she learned that methamphetamine was being used in the home
where she was living, and rather than separating herself from that environment, she decided
to remain and use herself.
2. Severe Child Abuse
A parent’s rights may be terminated if “[t]he parent . . . has been found to have
committed severe child abuse as defined in § 37-1-102, under any prior order of a court . . .
or is found by the court hearing the petition . . . to have committed severe child abuse
against any child.” Tenn. Code Ann. § 36-1-113(g)(4) Among other things, “severe child
abuse” under Tennessee Code Annotated § 37-1-102 means:
(A)(i) The knowing exposure of a child to or the knowing failure to protect
a child from abuse or neglect that is likely to cause serious bodily injury or
death and the knowing use of force on a child that is likely to cause serious
bodily injury or death;
....
(E) Knowingly or with gross negligence allowing a child under eight (8)
years of age to ingest an illegal substance or a controlled substance that
results in the child testing positive on a drug screen, except as legally
prescribed to the child[.]
Id. § 37-1-102(b)(27)(A)(i), (E) (Supp. 2020).
Generally, “[c]lear and convincing evidence of severe child abuse is present when
a child is exposed to methamphetamine.” In re Caydan T., No. W2019-01436-COA-R3-
PT, 2020 WL 1692300, at *5 (Tenn. Ct. App. Apr. 7, 2020) (citing In re A.L.H., No.
M2016-01574-COA-R3-JV, 2017 WL 3822901, at *5 (Tenn. Ct. App. Aug. 31, 2017)
(“This Court has repeatedly held that exposure of a child to drugs constitutes severe child
abuse.”)). Here, Mother admitted to using marijuana and methamphetamine and that she
knew that methamphetamine was being used in the home where she lived.
7
We conclude the evidence clearly and convincingly supports the finding that Mother
committed severe child abuse. Kaelyn’s hair follicle test showed exposure to significant
levels of methamphetamine. And Kaelyn’s foster mother testified that the child was
suffering the consequences as a result of that exposure. Kaelyn had extremely sensitive
hands and feet that delayed her ability to crawl and caused her to cry when anyone touched
her. And she required both occupational and physical therapy after coming into foster care.
B.
Because “[n]ot all parental misconduct is irredeemable,” our parental termination
“statutes recognize the possibility that terminating an unfit parent’s parental rights is not
always in the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.
2005). So even though two statutory grounds for termination were established by clear and
convincing evidence, we must also determine whether termination of parental rights is in
the child’s best interests. Tennessee Code Annotated § 36-1-113(i) lists nine factors that
courts must consider in making a best interest analysis. The “factors are illustrative, not
exclusive, and any party to the termination proceeding is free to offer proof of any other
factor relevant to the best interests analysis.” In re Gabriella D., 531 S.W.3d 662, 681
(Tenn. 2017). In reaching a decision, “the court must consider all of the statutory factors,
as well as any other relevant proof any party offers.” Id. at 682.
After considering all of the statutory factors, the trial court determined that
termination of parental rights was in the child’s best interest. In doing so, it reasoned that
six of the statutory factors weighed in favor of termination. In evaluating the first factor,
the court found that “[g]iven the length of time that the child ha[d] been placed with the
foster family, 506 days at the date of trial, . . . [Mother] had not yet made sufficient
adjustment in circumstances or conditions to make it safe and in the best interest of
[Kaelyn] to be in her home.” See Tenn. Code Ann. § 36-1-113(i)(1). Although the court
noted Mother’s progress in the residential treatment program and hoped that Mother could
remain “on her current track . . . and become a productive member of society,” the court
was troubled that Mother took a two-week leave from the program given her prior history
of drug abuse.
We note further that Mother had not completed the treatment program and would
only do so three months after she gave birth, at the earliest. Due to her late start at seeking
assistance, she had not yet demonstrated her ability to stay clean for a meaningful time
period outside of a treatment program.
The court found that, under the second factor, Mother “ha[d] not yet made a
sufficient adjustment in circumstances or conditions to make it safe and in the best interest
of [the] child to be in her home.” See id. § 36-1-113(i)(2) (asking “[w]hether the parent
. . . has failed to effect a lasting adjustment after reasonable efforts by available social
8
services agencies for such duration of time that lasting adjustment does not reasonably
appear possible”). Here, the court noted the time lost due to Mother’s failure to work with
DCS after her release from jail. The court found that she “routinely failed to maintain any
level of consistent contact with the department.” And in a familiar pattern, Mother fell
deeper into drug use after her child’s removal, only working toward recovery when she
learned that she was pregnant with her third child.
The court addressed the third and fourth best interest factors, which focus on the
parent’s relationship with the child, together. The third factor considers the consistency of
visitation. Id. 36-1-113(i)(3). The fourth factor asks “[w]hether a meaningful relationship
has otherwise been established between the parent . . . and the child.” Id. § 36-1-113(i)(4).
Kaelyn was approximately four months old when she went into foster care. And Mother
had not seen Kaelyn since her removal. The court found the lack of visitation prevented
any relationship from being established between Mother and her child. The foster parents
were the only parents Kaelyn had known.
Under the fifth factor, the court determined “that changing Kaelyn’s caretakers
would be detrimental to her emotional and psychological well-being given the foster
parents are the only parents she knows.” See id. § 36-1-113(i)(5). The court found that
Kaelyn was the only child in the foster parent’s home and that she was now an established
member of the family. The court accredited the foster mother’s testimony “that both she
and her husband are loving and supportive foster parents who want to adopt Kaelyn.” The
foster parents had demonstrated that support by taking Kaelyn to both physical and
occupational therapy for weeks to address the child’s developmental issues. The foster
parents “provide[d] a very stable and supportive home environment and that [wa]s
something that [Mother] simply ha[d] never been able to provide.”
Finally, the court weighed the sixth statutory factor in favor of termination. The
sixth factor asks whether the parent “has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child.” Id. § 36-1-113(i)(6). As discussed
above, the proof showed that Mother committed severe child abuse against Kaelyn by
exposing her to methamphetamine.
On appeal, Mother does not contend that the evidence preponderates against any of
the court’s factual findings or that it improperly weighed the best interest factors. Instead,
Mother complains that the court failed to specially address three of the statutory best
interest factors in its analysis. She argues that each factor must be addressed in the court’s
order because, under the parental termination statutes, the court must “enter an order that
makes specific findings of fact and conclusions of law.” Id. § 36-1-113(k).
We find Mother’s argument unavailing. The court’s order makes specific findings
of fact and conclusions of law. We do not read the parental termination statute, in requiring
specific factual findings and legal conclusions, to obligate a court to make a reference to
9
every subsection of the statute in its best interest analysis. The statute does provide that
the court “shall consider” the statutory best interest factors. Id. § 36-1-113(i). And our
supreme court has held that “the court must consider all of the statutory [best interest]
factors, as well as any other relevant proof any party offers.” In re Gabriella D., 531
S.W.3d at 682. But the court complied with that directive. The order provides that the
court “carefully considered the factors as enumerated in Tenn. Code 36-1-113(i).”
In looking at the factors that the court did not specifically reference, factors seven,
eight, and nine, we conclude that the court found those factors not applicable.4 The seventh
factor focuses on the parent’s home environment and ability to be a safe and stable
caregiver. See Tenn. Code Ann. § 36-1-113(i)(7) (“Whether the physical environment of
the parent’s . . . home is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of [intoxicants] as may render the parent . . . consistently unable
to care for the child in a safe and stable manner.”). At the time of trial, Mother was living
at the residential treatment facility, but that home was temporary. Mother would be
departing in a matter of months after the birth of her child. In addressing other factors, the
court touched on Mother’s ability to be a safe and stable caregiver.
The eighth statutory factor evaluates the parent’s mental and emotional health,
asking “[w]hether the parent’s . . . mental and/or emotional status would be detrimental to
the child or prevent the parent . . . from effectively providing safe and stable care and
supervision for the child.” Id. § 36-1-113(i)(8). The ninth factor looks at the parent’s
child support history. See id. § 36-1-113(i)(9). No direct proof was offered regarding
Mother’s mental or emotional health. And, although the juvenile court did order Mother
to pay nominal child support of $10.00 per month, no proof was offered concerning
Mother’s compliance with the order.
We agree with the court that the proven facts amount to clear and convincing
evidence that termination was in Kaelyn’s best interest. For termination to be in a child’s
best interest, not every factor has to apply. State of Tenn. Dep’t of Children’s Servs. v.
T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10,
2002). Such was the case here. The relevant factors dictated that terminating Mother’s
parental rights was in her child’s best interests. See In re Gabriella D., 531 S.W.3d at 682
(noting “the facts and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case”).
III.
As conceded by Mother on appeal, the record contains clear and convincing
evidence to support terminating Mother’s parental rights on the two statutory grounds. The
4
Mother makes no argument concerning the possible relevance of those factors.
10
record also contains clear and convincing evidence that termination is in the child’s best
interest. So we affirm the termination of Mother’s parental rights.
s/ W. Neal McBrayer
W. NEAL MCBRAYER, JUDGE
11