In Re: Quintin S.

07/13/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 1, 2017
IN RE QUINTIN S., ET AL.
Appeal from the Juvenile Court for Claiborne County
Nos. 2012-JV-1106, 2015-JV-1560, 2016-JV-1701 Robert M. Estep, Judge
No. E2016-02150-COA-R3-PT
The Department of Children’s Services filed this petition to terminate the parental rights
of the mother and two fathers of four children on various grounds. We affirm the
termination of the parental rights of all three parents on multiple grounds, but reverse as
to some of the grounds found by the trial court. We agree with the trial court’s decision
that termination of parental rights is in the best interest of the children.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Reversed in Part, and Remanded
ANDY D. BENNETT, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,
JR., and KENNY W. ARMSTRONG, JJ., joined.
James Dallard Estep, III, Tazewell, Tennessee, for the appellant, Shawn H.
Jordan Chandler Long, Knoxville, Tennessee, for the appellant, Christopher F. K., III.
Mary Catherine O’Donnell, Blaine, Tennessee, for the appellant, Areia Y. K.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée Blumstein, Solicitor
General, and Alexander S. Rieger, Deputy Attorney General, Nashville, Tennessee, for
the appellee, Tennessee Department of Children’s Services.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Areia Y.K. (“Mother”) is the biological mother of the four children at issue in this
parental termination appeal: Quintin S., born in March 2007; Aglacia H., born in June
2010; Zavera S., born in October 2012; and Christopher F.K., IV (“Christopher IV”),
born in December 2014. The rights of two fathers are at issue in this appeal. Shawn H. is
the legal father of Aglacia because his name appears on her birth certificate; and DNA
testing established him as Zavera’s biological father. Christopher K., III (“Christopher
III”), is the legal father of Christopher IV because he was married to Mother at the time
of Christopher IV’s birth.1
The Department of Children’s Services (“DCS” or “the Department”) first became
involved with Mother and her children in 2012. When Zavera was born in October 2012,
Mother admitted taking opiates without a prescription while pregnant, and the child was
born with neonatal abstinence syndrome (“NAS”). The Department filed a petition to
transfer temporary legal custody on November 9, 2012. Shawn H. was incarcerated, and
the whereabouts of the father of Quintin S. were unknown. The juvenile court
determined that the three children were dependent and neglected and awarded temporary
custody to Lois R., the maternal grandmother. In March 2013, Mother was determined to
be free of opiates, and the children were returned to her custody.
On April 22, 2014, DCS once again brought Quintin, Aglacia, and Zavera into its
custody and filed a petition for temporary legal custody the following day that includes
the following pertinent allegations of dependency and neglect:
a. On April 22, 2014, CPSI Rachel Kilgore received a referral with
allegations of drug exposed child. CPSI Kilgore met with Quinton [S.]
at school. Quinton stated that he had not had a bath in a week and could
not remember the last time he brushed his teeth because there is no
running water in the home. He stated that he cannot flush the toilet and
it has to stay dirty.
b. During the investigation and home visit, [Mother] consented to a urine
drug screen. She tested positive for oxycodone and opiates. [Mother]
admitted to snorting an oxycodone on 4/20/14 without a valid
prescription.
c. [Christopher III] consented to a drug screen and tested positive for
oxycodone. [Christopher III] admitted to orally [taking] a Percocet that
he did not have a valid prescription for on 4/18/14.
d. Additionally, there is no running water in the home and no refrigerator.
The Department requested that the children be taken into its custody and that they be
found dependent and neglected at a final hearing.2 A hearing was held on May 14, 2014,
1
James S., the legal father of Quintin S., surrendered his parental rights to the child in October 2015.
Thus, his rights are not at issue in this appeal.
2
Lois R., the maternal grandmother, subsequently filed a petition to intervene and attempted,
unsuccessfully, to be awarded custody of the children. As Ms. R. is not a party to this appeal, we will not
address the proceedings or rulings related to her rights.
-2-
and the juvenile court entered an order on June 16, 2014 finding the children dependent
and neglected.
Christopher IV was born in December 2014. Christopher IV’s umbilical cord
blood tested positive for opiates; he was diagnosed with NAS and treated with morphine
to alleviate his withdrawal symptoms. The Department immediately petitioned the
juvenile court to take him into protective custody due to drug exposure.3
On July 29, 2015, DCS filed a petition to terminate the parental rights of Mother,
Shawn H., and Christopher III. The Department alleged the following grounds for
termination: (1) abandonment by failure to visit (all parties); (2) abandonment by failure
to support (all parties); (3) abandonment by incarcerated parent/failure to visit (Mother
and Christopher III); (4) abandonment by incarcerated parent/failure to support (Mother
and Christopher III); (5) abandonment by incarcerated parent/wanton disregard (Mother
and Christopher III); (6) abandonment by failure to provide suitable home (Mother and
Christopher III); (7) substantial noncompliance with permanency plan (all parties); (8)
persistence of conditions (Mother and Christopher III); and (9) severe child abuse (all
parties). The hearing took place over three days in August 2016. (We will discuss the
testimony and evidence presented at trial below as pertinent to our analysis of the issues
on appeal.) The trial court found that the following grounds for termination had been
proven by clear and convincing evidence: Mother—grounds one through eight; Shawn
H., with respect to Aglacia and Zavera—grounds one, two, and seven; and Christopher
III, with respect to Christopher IV—grounds one, three, five, six, seven, and eight. The
court also found that it was in the children’s best interest for the parental rights of
Mother, Shawn H., and Christopher III to be terminated.
All three parents, Mother, Shawn H., and Christopher III, have appealed. In
accordance with In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016), this court
“must review the trial court’s findings as to each ground for termination and as to
whether termination is in the child[ren]’s best interests, regardless of whether the parent
challenges these findings on appeal.”
STANDARD OF REVIEW
Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). This right is not absolute, however. If a
compelling state interest exists, the state may interfere with parental rights. Nash-Putnam,
921 S.W.2d at 174-75 (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Our
3
The petition regarding Christopher IV was originally filed in Hamblen County, but it was later
transferred to Claiborne County and consolidated with the case involving the other three children.
-3-
legislature has enumerated the grounds upon which termination proceedings may be
brought. See Tenn. Code Ann. § 36-1-113(g). A parent’s rights may be terminated only
where a statutory ground exists. In re Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998).
Because terminating a parent’s fundamental parental rights has severe
consequences, termination cases require a court to apply a higher standard of proof. State
Dep’t of Children’s Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006). First,
a court must determine by clear and convincing evidence that at least one of the statutory
grounds for termination exists. Tenn. Code Ann. § 36-1-113(c)(1); In re Valentine, 79
S.W.3d 539, 546 (Tenn. 2002). After a court makes this determination, a court must find
by clear and convincing evidence that termination is in the best interest of the child.
Tenn. Code Ann. § 36-1-113(c)(2); In re Valentine, 79 S.W.3d at 546. “Clear and
convincing evidence ‘establishes that the truth of the facts asserted is highly probable,
and eliminates any serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.’” In re Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL
2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted)).
Because of the heightened standard of proof required in termination cases, we
must adapt the customary standard of review established by Tenn. R. App. P. 13(d). Id. In
accordance with Tenn. R. App. P. 13(d), we review the trial court’s findings of fact de
novo with a presumption of correctness unless the evidence preponderates otherwise. Id.
Next, we must determine whether the facts establish by clear and convincing evidence the
elements necessary to terminate parental rights. In re M.J.B., 140 S.W.3d at 654.
ANALYSIS
I. Grounds For Termination
A. Abandonment by failure to visit prior to filing of petition
A parent’s rights may be terminated upon proof by clear and convincing evidence
that the parent “abandoned” his or her child. Tenn. Code Ann. §§ 36-1-113(c)(1), (g)(1).
There are a number of different statutory definitions of abandonment. See Tenn. Code
Ann. § 36-1-102(1)(A). Tennessee Code Annotated section 36-1-102(1)(A)(i) defines
abandonment as follows:
For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent or parents or the guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians either have willfully failed to
-4-
visit or have willfully failed to support or have willfully failed to make
reasonable payments toward the support of the child[.]
(Emphasis added). A court must find that the abandonment was “willful.” Tenn. Code
Ann. § 36-1-102(1)(A)(i). The statutory definition of “willfully failed to visit” is “the
willful failure, for a period of four (4) consecutive months, to visit or engage in more than
token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). Tennessee Code Annotated § 36-
1-102(1)(C) defines “token visitation” as “perfunctory visitation or visitation of such an
infrequent nature or of such short duration as to merely establish minimal or insubstantial
contact with the child.” To establish willfulness in this context, a petitioner must show
that “a parent who failed to visit or support had the capacity to do so, made no attempt to
do so, and had no justifiable excuse for not doing so.” In re Adoption of Angela E., 402
S.W.3d 636, 640 (Tenn. 2013); see also In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn.
Ct. App. 2005) (stating that a person acts willfully if he or she knows what he or she is
doing and has the intention to do what he or she is doing). “Whether a parent failed to
visit or support a child is a question of fact. Whether a parent’s failure to visit or support
constitutes willful abandonment, however, is a question of law.” In re Adoption of Angela
E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007)). A parent will not be found to have abandoned his or her child if his failure to
visit the child is not within his or her control. Id.
Because Mother and Christopher III were incarcerated during the four months
prior to the Department’s filing of the petition for termination, DCS has conceded the
ground of abandonment by failure to visit during the four-month period prior to the filing
of the petition with respect to Mother and Christopher III. We agree that DCS has not
established this ground by clear and convincing evidence as to Mother or Christopher III.
We, therefore, reverse the trial court’s termination of their parental rights on this ground.
We proceed, then, to address this ground as to Shawn H. In this case, DCS filed
the termination petition on July 29, 2015. Thus, the relevant time period under Tenn.
Code Ann. § 36-1-102(1)(A)(i) is March 29 to July 28, 2015. Although Shawn H. was
incarcerated for significant periods of time, he was out of jail from August 2014 to
August 2015. Therefore, the four-month period set forth in Tenn. Code Ann. § 36-1-
102(1)(A)(i) is the appropriate statutory ground applicable to him.
During this period of time, Shawn H. visited his children only once, in June 2015.
All of the permanency plans provide that the parents are entitled to at least 4.3 hours of
visitation per month. Ashley Jennings, the case manager, testified that, after initially
having only one four-hour visit per month, she altered the visitation schedule to allow the
parents two two-hour visits per month. She sent each parent a letter outlining the details
about visitation—location, dates, times, and the importance of being there on time.
-5-
Shawn H. argues on appeal that he was only allowed eight supervised visits during
the four months at issue and that one two-hour visit amounts to more than token
visitation. We respectfully disagree. The record shows that, during the relevant four-
month period, DCS allowed Shawn a total of sixteen hours of visitation, and he used only
two. Moreover, the record contains evidence that his failure to participate in more than
token visitation was willful. At the hearing, Shawn H. testified that he had problems with
transportation because he lost his license. He could ride with his mother, but he had
problems paying for the gas. Shawn H. also acknowledged that he could get a ride
through ETHRA,4 but he stated that he had trouble paying the “couple of dollars”
required to use the service.
The trial court found that Shawn H. had abandoned Aglacia and Zavera by a
willful failure to visit pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i). We conclude
that clear and convincing evidence supports this determination.
B. Abandonment by failure to support prior to filing of petition
Due to their incarceration, DCS has also conceded the ground of willful failure to
support during the four-month period prior to the filing of the petition with respect to
Mother and Christopher III. We agree that DCS failed to prove this ground of
abandonment by failure to visit by clear and convincing evidence as to Mother or
Christopher III. We, therefore, reverse the trial court’s termination of their parental rights
on this ground.
Using the statutory definition of abandonment set forth above, we now address the
ground of willful failure to support as to Shawn H. Pursuant to Tenn. Code Ann. § 36-1-
102(1)(D), “willfully failed to support” or “willfully failed to make reasonable payments
toward such child’s support” means “the willful failure, for a period of four (4)
consecutive months, to provide monetary support or the willful failure to provide more
than token payments toward the support of the child.” “[T]oken support” is defined to
mean “that the support, under the circumstances of the individual case, is insignificant
given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). Shawn H. was required
to pay $100 per month per child ($200 per month) in child support. He concedes that he
did not pay any child support for his two children.
To prove abandonment by willful failure to support, DCS must prove by clear and
convincing evidence that Shawn H. “had the capacity to pay support but made no attempt
to do so and did not possess a justifiable excuse.” In re Adoption of Angela E., 402
S.W.3d at 641. It is not enough for DCS to “‘simply prove that [Father] was not disabled
during the relevant timeframe’ and therefore assume that [he] was capable of working
4
ETHRA stands for East Tennessee Human Resources Agency, which provides public transportation
services.
-6-
and paying child support.” In re Noah B.B., No. E2014-01676-COA-R3-PT, 2015 WL
1186018, at *9 (Tenn. Ct. App. Mar. 12, 2015) (quoting In re Josephine E.M.C., No.
E2013-02040-COA-R3-PT, 2014 WL 1515485, at *18 (Tenn. Ct. App. Apr. 17, 2014)).
According to the testimony of Shawn H., he applied during the relevant time period for
jobs at restaurants, sawmills, and factories without success. He managed to pay his fines
and court costs by working odd jobs, collecting scrap metal, and obtaining help from his
mother. Shawn H. testified that he sometimes took morphine twice a week; he did odd
jobs in exchange for the drugs or paid ten or fifteen dollars for the drugs. Shawn H. lived
with his mother during this time period.
Contrary to the Department’s argument, we do not consider Shawn H.’s drug habit
and payment of court fines sufficient evidence of a willful failure to support his children.
The Department failed to present enough evidence to “‘eliminate[] any serious or
substantial doubt’” that Shawn H. had the ability to pay support and that his failure to
support his children was, therefore, willful. In re Serenity B., 2014 WL 2168553, at *2
(quoting In re M.J.B., 140 S.W.3d at 653).
We, therefore, reverse the trial court’s termination of Shawn’s H.’s parental rights
on the ground of willful failure to support.
C. Abandonment by failure to visit prior to incarceration
The version of Tenn. Code Ann. § 36-1-102(1)(A)(iv) applicable to this case
defines abandonment as follows:
A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or has willfully failed to support or has
willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent’s
or guardian’s incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child.
(Emphasis added).
1. Mother
Under Tenn. Code Ann. § 36-1-102(1)(A)(iv), the relevant time period for
abandonment for willful failure to visit is the four-month period prior to Mother’s
incarceration. Mother argues that her brief incarceration on January 30, 2015 means that
-7-
the relevant time period runs from September 28, 2014 to January 29, 2015. The
Department asserts that a few hours in jail does not trigger Tenn. Code Ann. § 36-1-
102(1)(A)(iv) and that the relevant time period runs from December 30, 2014 to April 30,
2015, which is the four months prior to Mother’s incarceration from May 1 to May 28,
2015.
In two previous cases involving the wanton disregard ground under Tenn. Code
Ann. § 36-1-102(1)(A)(iv), this court “took the reasoned position . . . that a parent
spending a few hours in jail does not rise to the level” necessary to qualify for the
protections of the statute. In re Kaitlin W., No. E2015-01553-COA-R3-PT, 2016 WL
2931326, at *8 (Tenn. Ct. App. May 16, 2016) (citing In re Courtney N., No. E2012-
01642-COA-R3-PT, 2013 WL 2395003, at *7 (Tenn. Ct. App. May 31, 2013)). We find
that this reasoning likewise applies here to Mother’s brief stay in jail on January 30,
2015. The case cited by Mother involves a period of incarceration lasting two days and
is, therefore, distinguishable from the present case. See In re Eddie F., No. E2016-
00547-COA-R3-PT, 2016 WL 7029285, at *4 n.6 (Tenn. Ct. App. Dec. 2, 2016)
(measuring four-month time period for failure to support from mother’s two-day
incarceration). Thus, the relevant time period for purposes of determining Mother’s
abandonment by failure to visit during the four months prior to her incarceration is
December 30, 2014 to April 30, 2015.
During the relevant time period, Mother visited the children three times, once in
February 2015 and twice in April 2015. Mother acknowledged that she received the
letters from Ms. Jennings and knew that she had the opportunity to visit the children
twice a month. When asked about her failure to exercise more visitation, Mother
testified:
A. . . . I was struggling with my addiction and doing probation right [sic],
so I knew if I went for a visit, I would be arrested.
Q. So you chose not to go see your children because you knew that you
would be arrested?
A. Yeah.
Mother argues that the trial court’s finding that her failure to visit was willful is
inconsistent with her request for relief from the trial court due to her dissatisfaction with
the visitation offered. Unlike the present case, the case relied upon by Mother, In re
Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL 7243674, at *5 (Tenn. Ct. App.
Dec. 15, 2016), involved a mother’s efforts to reinstate visitation after the trial court’s
entry of an order suspending her visitation rights. While the In re Jakob O. appellate
court found that the mother should not be assigned fault for failing to exercise visitation
during the period of suspension, the court found no error in the trial court’s determination
that the mother’s three visits during the three months after the reinstatement of visitation
amounted to only token visitation. In re Jakob O., 2016 WL 7243674, at *6.
-8-
In the present case, after a hearing on December 5, 2014 at which the court
determined that DCS had not received proper notice, the trial court entered an order on
December 18 stating, in pertinent part:
The mother informed the Court however that she was not getting her
supervised visitation. When counsel for the Department was reached via
teleconference, counsel for the Department could not dispute the mother’s
allegations as her client was not available to question. Therefore, the Court
ordered the Department to create a visitation plan by December 15, 2014 or
a plan would be created by the Court. The supervised visitation will occur
at the Morristown Mall play area.
The supervised visitation plan emailed to counsel on 12/9/14 is as
follows:
December 16, 2014: 5:00PM-7:00PM
December 30, 2014: 5:00PM-7:30PM
January 13, 2015: 5:00PM-7:00PM
January 27, 2015: 5:00PM-7:30PM
February 10, 2015: 5:00PM-7:00PM
February 24, 2015: 5:00PM-7:30PM
In an affidavit of reasonable efforts dated September 10, 2015, Ms. Jennings stated that,
on February 10, 2015, she set up the following additional visits with the parents: March
9, 2015; March 23, 2015; April 7, 2015; and April 21, 2015. Out of the nine visits set up
for Mother during the relevant time period, Mother attended only three, and the trial court
found that Mother’s visits constituted only “token visitation.” The evidence does not
preponderate against this finding, which supports the trial court’s conclusion that,
pursuant to Tenn. Code Ann. § 36-1-102(1)(E), the failure to visit was willful.
We conclude that there is clear and convincing evidence to support the termination
of Mother’s parental rights on the ground of abandonment by willful failure to visit
during the four-month period prior to incarceration pursuant to Tenn. Code Ann. § 36-1-
102(1)(A)(iv).
2. Christopher III
Christopher III testified that he was incarcerated for theft for approximately two to
three days in June 2015, but there is nothing in the record to establish the exact dates of
his incarceration. Citing In re Addison B., No. M2014-02265-COA-R3-PT, 2015 WL
2258232, at *2 (Tenn. Ct. App. May 13, 2015), Christopher III emphasizes the fact that
the trial court never identified an exact period of incarceration. We do not find this
distinction to be important. Even if we assume that Christopher III was incarcerated at
the beginning of June 2015, there is no dispute that he attended only two visits (both in
April 2015) during the preceding four-month period, February to May 2015.
-9-
As stated above, DCS offered the parents two visits per month. Thus, Christopher
III attended only two of eight visits available to him during the relevant four-month time
period. At the hearing, Christopher III testified that he did not have a driver’s license and
found ETHRA not to be dependable. As a result, he chose to ride his bicycle to visits.
According to Christopher III, Ms. Jennings did not assist him with transportation and
never offered him a ride. Ms. Jennings testified that Christopher III “wanted to do
everything on his own.” She stated that, if Christopher III asked her for help, she would
provide help.
The trial court determined that Christopher III’s visitation prior to his
incarceration was “token at best.” The evidence does not preponderate against this
finding. Pursuant to Tenn. Code Ann. § 36-1-102(1)(E), therefore, his failure to visit was
willful. There is clear and convincing evidence to support the trial court’s termination of
Christopher III’s parental rights on the ground of abandonment by willful failure to visit
during the four-month period prior to incarceration pursuant to Tenn. Code Ann. § 36-1-
102(1)(A)(iv).
D. Abandonment by failure to support prior to incarceration
1. Mother
Mother was ordered to pay $118 per month per child. Mother made occasional
payments. She testified that she worked, off and on over the past six years, for a
housecleaning company earning around $400 a week. During the relevant time period,
however, Mother was not working. When Christopher IV was taken away from her after
his birth in December 2014, Mother became depressed, stopped working, and started
using drugs again. Mother testified: “I neglected child support, my probation and
everything else. I gave up on—I gave up on myself for a little bit until I could find
myself again.” When asked if she decided she could not “handle working at that point,”
Mother responded that she “needed to work on my depression and get some help with my
addiction.” Mother further testified that, during much of that time, she was homeless.
The Department’s position is that “Mother’s decision to buy drugs rather than pay child
support constituted a willful failure to support her children.”
As stated above, DCS must prove by clear and convincing evidence that Mother
“had the capacity to pay support but made no attempt to do so and did not possess a
justifiable excuse.” In re Adoption of Angela E., 402 S.W.3d at 641. The Department
failed to present clear and convincing evidence that Mother had the capacity to pay child
support during the relevant time period. We, therefore, reverse the trial court’s
termination of Mother’s parental rights on this ground.
- 10 -
2. Christopher III
In its brief, DCS declined to challenge the trial court’s denial of the ground of
willful failure to support during the four months prior to incarceration as to Christopher
III. According to Christopher III’s unrefuted testimony, he had a job and was current on
his child support payments. We affirm the decision of the trial court denying this ground
for terminating Christopher III’s parental rights.
E. Abandonment by wanton disregard
One of the definitions of abandonment included in Tenn. Code Ann. § 36-1-
102(1)(A)(iv), quoted in full above, is that “the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the welfare of the
child.” Unlike the other forms of abandonment included in Tenn. Code Ann. § 36-1-
102(1)(A)(iv), abandonment by wanton disregard is not limited to the four months
immediately preceding the parent’s incarceration. In re Audrey S., 182 S.W.3d at 871. In
fact, “the conduct may occur before the birth of the child whose welfare is thereby put at
risk.” In re T.M.H., No. M2008-02427-COA-R3-PT, 2009 WL 1871873, at *7 (Tenn. Ct.
App. June 29, 2009). The wanton disregard test for abandonment “reflects the
commonsense notion that parental incarceration is a strong indicator that there may be
problems in the home that threaten the welfare of the child.” In re Audrey S., 182 S.W.3d
at 866. Although incarceration alone is not sufficient to prove abandonment, “[a] parent’s
decision to engage in conduct that carries with it the risk of incarceration is itself
indicative that the parent may not be fit to care for the child.” Id. A parent’s
incarceration acts 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 that renders the parent unfit or poses
a risk of substantial harm to the welfare of the child.” Id. This court has “repeatedly held
that probation violations, repeated incarceration, criminal behavior, substance abuse, and
the failure to provide adequate support or supervision for a child can, alone or in
combination, constitute conduct that exhibits a wanton disregard for the welfare of a
child.” Id. at 867-68.
1. Mother
Mother’s position on this issue is that the trial court erred in focusing on actions
that occurred subsequent to the Department’s removal of Christopher IV from her
custody, whereas the statute requires that wanton disregard be based upon her “conduct
prior to incarceration.” Tenn. Code Ann. § 36-1-102(1)(A)(iv). We agree with Mother’s
interpretation of the statute. As discussed above, however, the pertinent period of
incarceration is May 1 to 28, 2015. Mother’s conduct prior to that time is relevant on the
issue of wanton disregard.
- 11 -
Mother has a long history of drug use. After Aglacia was born, she began using
“Roxies” (roxicontin) and opiates. When she was pregnant with Zavera, Mother was
taking opiates. She began struggling with her addiction and trying to get clean during the
pregnancy. Mother’s three children were removed from her custody in November 2012,
but were returned to her in March 2013 when she was free of opiates. The three children
were taken into DCS custody again in April 2014, and Mother tested positive for
oxycodone and opiates at that time. Mother and Christopher III were arrested and
charged with theft under $500 in September or October 2014, and Mother was placed on
probation. When she learned that she was pregnant with Christopher IV, Mother began
attending rehabilitation and taking subutex; she admitted also taking suboxone that was
not prescribed for her. As pointed out by the trial court, after Christopher IV’s removal
in December 2014, Mother continued to use drugs (methamphetamine and opiates). She
also violated her probation, leading to her incarceration in May 2015.
Mother’s chronic drug abuse and inability to maintain sobriety as well as her
criminal behavior, probation violation, and unstable housing5 exhibit a wanton disregard
for the welfare of her children. We conclude that there is clear and convincing evidence
to support the trial court’s termination of Mother’s parental rights based upon the ground
of wanton disregard for the welfare of her children prior to incarceration.
2. Christopher III
For Christopher III, the relevant period of incarceration is June 2015. Any
conduct prior to that time may be pertinent to the wanton disregard analysis. Some of the
conduct cited by the trial court occurred after the relevant time period.
Christopher III asserts that the wanton disregard ground does not apply to him
because there was no dependency and neglect determination until the termination order.
He cites two cases in which the children were adjudicated dependent and neglected prior
to the termination proceedings. See In re Serenity L., No. E2014-02475-COA-R3-PT,
2015 WL 4594520, at *1 (Tenn. Ct. App. July 31, 2015); In re Garvin M., No. E2013-
02080-COA-R3-PT, 2014 WL 1887334, at *1 (Tenn. Ct. App. May 9, 2014). Neither of
these cases, however, holds that such an order is a prerequisite for applying the wanton
disregard ground, and the plain language of the statute does not require a dependency and
neglect order to base a termination of parental rights on this ground. We reject
Christopher III’s argument.
As stated above, Mother and Christopher III were arrested and charged with theft
under $500 in September or October 2014. Christopher III was incarcerated and then
released on bond. He was incarcerated again in December 2014 on an earlier theft charge
from 2012 for theft over $1000; he was again released on bond. Christopher III was
5
As stated in section D.1., Mother was homeless for a period of time after Christopher IV’s birth.
- 12 -
incarcerated again in June 2015 in relation to the previous theft charges. Christopher III
admitted using suboxone once during Mother’s pregnancy with Christopher IV, and he
failed a drug screen for suboxone during the pregnancy. In January 2015, after
Christopher IV had been removed by DCS, Christopher III failed another drug test.
While this court recognizes that Christopher III has exhibited the ability to provide
support, his criminal behavior, probation violations, substance abuse, and incarcerations
exhibit a wanton disregard for the welfare of his child. We conclude that there is clear
and convincing evidence to support the trial court’s termination of his parental rights
based upon the ground of wanton disregard for the welfare of his child prior to
incarceration.
F. Abandonment by failure to provide a suitable home
The ground of abandonment by failure to provide a suitable home requires a final
dependency and neglect order. Tenn. Code Ann. § 36-1-102(1)(A)(ii). There is no final
dependency and neglect order regarding Christopher IV because his adjudication as
dependent and neglected was combined with the termination of parental rights trial. As a
result, DCS has conceded this ground with respect to Mother’s and Christopher III’s
rights to Christopher IV. We agree that this ground of abandonment has not been proven
by clear and convincing evidence as to Christopher IV. We, therefore, reverse the trial
court’s termination of the parental rights of Mother and Christopher III with respect to
Christopher IV on this ground.
The remaining issue under this ground is whether the trial court properly found by
clear and convincing evidence that Mother abandoned her other three children by failing
to provide a suitable home. Abandonment by failure to provide a suitable home occurs
under the following circumstances:
The child has been removed from the home of the parent or parents or the
guardian or guardians as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as defined
in § 37-1-102, and the child was placed in the custody of the department or
a licensed child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds, that the
department or a licensed child-placing agency made reasonable efforts to
prevent removal of the child or that the circumstances of the child’s
situation prevented reasonable efforts from being made prior to the child’s
removal; and for a period of four (4) months following the removal, the
department or agency has made reasonable efforts to assist the parent or
parents or the guardian or guardians to establish a suitable home for the
child, but that the parent or parents or the guardian or guardians have made
no reasonable efforts to provide a suitable home and have demonstrated a
- 13 -
lack of concern for the child to such a degree that it appears unlikely that
they will be able to provide a suitable home for the child at an early date.
The efforts of the department or agency to assist a parent or guardian in
establishing a suitable home for the child may be found to be reasonable if
such efforts exceed the efforts of the parent or guardian toward the same
goal, when the parent or guardian is aware that the child is in the custody of
the department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii). Thus, the statute requires the Department to
prove, with respect to the relevant four-month time period, three elements: (1) the parent
has failed to make reasonable efforts to provide a suitable home, (2) DCS has “made
reasonable efforts to assist the parent . . . to establish a suitable home,” and (3) the parent
has “demonstrated a lack of concern for the child to such a degree that it appears unlikely
that they will be able to provide a suitable home for the child at an early date.” Tenn.
Code Ann. § 36-1-102(1)(A)(ii).
In this context, the relevant four-month time period is April 23 to August 23,
2014. Mother’s oldest three children were removed from her custody on April 22, 2014
due to environmental neglect and drug exposure. Mother argues that she obtained a
suitable home during this time period when she moved to King Avenue in Morristown, a
place Ms. Jennings described as being “nice,” with the exception of some broken
windows. An affidavit of reasonable efforts completed by Ms. Jennings on November 6,
2014 indicates that Mother did not, however, remain at the King Street address for more
than a few months. As of July 22, 2014, she reported to Ms. Jennings that she was
homeless and staying wherever she could.
Moreover, in this context, a “suitable home” means “‘more than a proper physical
living location.’” In re Hannah H., No. E2013-01211-COA-R3-PT, 2014 WL 2587397,
at *9 (Tenn. Ct. App. June 10, 2014) (quoting State v. C.W., No. E2007-00561-COA-R3-
PT, 2007 WL 4207941, at *3 (Tenn. Ct. App. Nov. 29, 2007)). A suitable home must
“be free of drugs and domestic violence.” Id. Mother refused a drug screen on May 29,
2014. As of November 6, 2014, she had not completed the alcohol and drug assessment
required by her permanency plan. She failed to maintain any contact with the
Department from May 30 through July 22, 2014, and she tested positive for subutex on
September 25 and October 24, 2014. On September 25, 2014, Mother reported that she
was attending a recovery program for her addiction. She also stated, in September 2014,
that she was five months pregnant and had snorted opanas two months earlier. Ms.
Jennings submitted a referral for adult case services to help Mother complete the steps on
her permanency plan. As of November 6, 2014, Mother had not submitted
documentation of assessments as required by her permanency plan.
Pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(ii), DCS must make reasonable
efforts to assist the parents to find suitable housing. “Reasonable efforts” has been
- 14 -
defined to mean “the exercise of reasonable care and diligence by the department to
provide services related to meeting the needs of the child and the family.” Tenn. Code
Ann. § 37-1-166(g)(1); see In re C.L.M., No. M2005-00696-COA-R3-PT, 2005 WL
2051285, at *9 (Tenn. Ct. App. Aug. 25, 2005) (applying Tenn. Code Ann. § 37-1-
166(g)(1) definition to case involving abandonment by failure to provide suitable home).
It should be noted that, “the Department does not bear the obligation to establish a
suitable home alone, and parents must make their own efforts at reunification.” In re
Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App.
Apr. 20, 2016) (citing In re C.L.M., 2005 WL 2051285, at *9) (noting that “reunification
is a ‘two-way street’”)).
Ms. Jennings’s affidavit of reasonable efforts dated November 6, 2014 documents
the Department’s efforts during and immediately after the relevant time period. On May
29, 2014, Ms. Jennings went to the maternal grandmother’s home to do a random drug
screen with Mother, but Mother refused the drug screen. On June 11, Ms. Jennings
called to remind Mother of the permanency plan hearing. On June 23, Ms. Jennings
called Mother to tell her about the children moving to their maternal grandmother’s
home, but she was not able to reach Mother and Mother never called her back. On
August 4, Ms. Jennings called Mother to let her know that the children were moving to
another foster home. On August 6, Ms. Jennings called the maternal grandmother to ask
for her help getting in touch with Mother, but the maternal grandmother did not call back.
By August 22, 2014, Ms. Jennings had not talked to Mother since a team meeting on July
22, 2014; Mother called and scheduled a meeting with Ms. Jennings on August 29 to
discuss steps on the permanency plan. Ms. Jennings and Mother saw one another during
a parent/child visit on August 26, 2014. Mother did not attend the scheduled meeting on
August 29. On September 24, Ms. Jennings drove to the maternal grandmother’s home,
picked Mother up, and drove her to the DCS office for a drug screen, pill count, and to
fill out a referral for adult case services. Mother tested positive for subutex, her pill count
was accurate, and she agreed to work with Health Connect. The Department presented
clear and convincing evidence that it made reasonable efforts to assist Mother to find
suitable housing during the relevant period.
The Department’s efforts “to assist a parent or guardian in establishing a suitable
home for the child may be found to be reasonable if such efforts exceed the efforts of the
parent or guardian toward the same goal.” Tenn. Code Ann. § 36-1-102(1)(A)(ii). Part
of Mother’s responsibilities under the permanency plan was to maintain contact with the
Department. Mother’s lack of contact with the Department, coupled with her persistent
drug use and failure to establish a stable home during the relevant time period, evidences
insufficient effort.
Finally, as to the third prong of the suitable home analysis, Mother argues that her
current home is suitable. As stated above, the Department must prove by clear and
convincing evidence that the parent has “demonstrated a lack of concern for the child to
- 15 -
such a degree that it appears unlikely that they will be able to provide a suitable home for
the child at an early date.” Tenn. Code Ann. § 36-1-102(1)(A)(ii). As to this portion of
the analysis, the court “may consider the parents’ more recent behavior.” In re Kayla B.,
No. E2016-01192-COA-R3-PT, 2017 WL 438622, at *7 (Tenn. Ct. App. Feb. 1, 2017)
(citing In re Joshua S., No. E2010-01331-COA-R3-PT, 2011 WL 2464720, at *18 (Tenn.
Ct. App. June 16, 2011)). Mother presented evidence that, since December 2015, she had
been living on Four Winds Lane in a home visited by the guardian ad litem and found by
her to be acceptable. Ms. Jennings was aware that Mother was living at this address but
had not visited because Mother had not contacted her with the new address. Mother
testified that she had called DCS with this information but had been unable to get in
touch with Ms. Jennings directly.6 Mother testified that she had been drug-free for six
months and was employed cleaning houses. She planned to have her fines and court
costs paid off in two weeks, and then she would be eligible to have her driver’s license
reinstated.
We conclude that the Department failed to produce clear and convincing evidence
that Mother demonstrated lack of concern to such a degree “that it appears unlikely that
[she] will be able to provide a suitable home for the child[ren] at any early date.” Tenn.
Code Ann. § 36-1-102(1)(A)(ii). Therefore, we conclude that the trial court erred in
terminating Mother’s parental rights based upon the ground of abandonment by failure to
provide a suitable home.
G. Substantial noncompliance
To establish the ground of substantial noncompliance with the permanency plans,
the Department must prove by clear and convincing evidence that the parent has not
substantially complied with the statement of responsibilities set forth in the permanency
plans at issue. Tenn. Code Ann. § 36-1-113(g)(2). Substantial noncompliance “should
be measured by both the degree of noncompliance and the weight assigned to that
requirement.” In re Valentine, 79 S.W.3d at 548. This court has described the proper
analysis for a trial court to use in determining whether a parent has substantially complied
with a permanency plan:
Before analyzing whether the parent complied with the permanency plan,
the trial court must find that the permanency plan requirements that the
parent allegedly failed to satisfy are “reasonable and related to remedying
the conditions which necessitate foster care placement.” In re Valentine, 79
S.W.3d at 547 (citing Tenn. Code Ann. § 37-2-403(a)(2)(C)).
6
In its questioning of Mother at the hearing, the Department emphasized that she had Ms. Jennings’s cell
phone number on her cell phone and that Mother could have retrieved her cell phone from the maternal
grandmother’s house in order to fulfill her responsibility to inform Ms. Jennings of her address. In light
of the fact that Ms. Jennings was aware of Mother’s address, however, we consider it to be an
overreliance on technicalities to refuse to visit Mother’s home.
- 16 -
If the permanency plan requirements are reasonable, the court must
determine if the parent’s noncompliance was substantial; noncompliance is
not enough to terminate a parent’s rights. Id. at 548-49. Additionally, the
unsatisfied requirement(s) must be important in the plan’s scheme. Id. A
“trivial, minor, or technical” deviation from the permanency plan’s
requirements does not qualify as substantial noncompliance. In re M.J.B.,
140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (citing In re Valentine, 79
S.W.3d at 548). Improvements in compliance are construed in favor of the
parent. Id. at 549 (citing State Dept. of Human Servs. v. Defriece, 937
S.W.2d 954, 961 (Tenn. Ct. App. 1996)).
In re Malaki E., No. M2014-01182-COA-R3-PT, 2015 WL 1384652, at *11 (Tenn. Ct.
App. Mar. 23, 2015). Whether a parent is substantially noncompliant with a permanency
plan is a question of law. In re Valentine, 79 S.W.3d at 548.
1. Mother
The Department developed a permanency plan regarding Quintin, Aglacia, and
Zavera on May 14, 2014. The permanency goals were to return the children to their
parent(s) or for them to exit DCS custody to live with a relative. Mother’s action steps
under the permanency plan include the following: participate in alcohol and drug
assessment, follow all recommendations, and provide DCS with proof of completion;
submit to random drug screens; provide documentation to DCS of the resolution of all
legal issues and sign releases to allow DCS to exchange information with her probation
officer; submit to random pill counts of all prescribed medications; be free from all illegal
activity and legal problems; obtain safe, stable housing with working utilities and provide
proof of housing to DCS; obtain a legal means of income sufficient to meet the needs of
her children and provide proof of income to DCS; provide a transportation plan to DCS;
continue to participate in scheduled supervised visits with each child every other
Tuesday; participate in mental health evaluation, follow all recommendations, and
provide documentation of completion to DCS; complete parenting classes to address
appropriate discipline and provide DCS documentation of completion; and notify DCS of
any significant changes such as in employment, address, or phone number. This
permanency plan was ratified by the juvenile court on July 7, 2014.
The Department developed a second permanency plan in October 2014. This plan
was similar to the May 2014 plan, but it added a few more requirements. Mother was to
attend all medical appointments to insure the safety of her unborn child and continue
working with Health Connect to complete the steps in her permanency plan. This second
permanency plan was also ratified by the juvenile court.
In January 2015, DCS developed a new permanency plan to include Christopher
IV. This plan included permanency goals of returning the children to their parent(s) and
- 17 -
adoption. The requirements of this plan are substantially similar to those of the previous
plans, but in some instances provide specific deadlines. Mother was also required to
attend neonatal abstinence syndrome classes and notify DCS of any need for assistance;
schedule a parenting assessment, provide DCS with documentation of any
recommendations, and notify DCS of any barriers to obtaining documentation of the
recommendations; and, if Mother did not have insurance, apply for insurance and provide
DCS with a denial letter. She was also required to submit applications for public housing
and public assistance, if eligible; apply new parenting skills during visits with the
children and show up on time for visits; contact DCS if she encountered barriers to
obtaining housing; if unable to locate housing within the required time frame, provide
DCS with a list of applications and contact information; and communicate with DCS
twice a week.
The trial court found that the requirements of the permanency plans were
“reasonably related to the achievement of the goal and reasonably related to remedying
the conditions which necessitated foster care.” Mother asserts that the plans’ requirement
that she resolve all legal issues “appears unrelated to the reasons for removal.” Our
Supreme Court has stated that, under Tenn. Code Ann. § 36-1-113(g)(2), “[c]onditions
necessitating foster care placement may include conditions related both to the child’s
removal and to family reunification.” In re Valentine, 79 S.W.3d at 547. The
requirement that Mother resolve her legal issues is reasonably related to returning her
children to her care. We, therefore, consider this requirement to be reasonably related to
remedying the conditions that necessitated foster care.
Mother emphasizes that, in considering the ground of substantial noncompliance,
“[o]ur focus is on the parent’s efforts to comply with the plan, not the achievement of the
plan’s desired outcomes.” In re Aiden R., No. E2015-01799-COA-R3-PT, 2016 WL
3564313, at *9 (Tenn. Ct. App. June 23, 2016). She argues that the trial court erred in
focusing on outcomes, rather than on Mother’s efforts. In concluding that clear and
convincing evidence existed to terminate Mother’s parental rights on the ground of
substantial noncompliance, the trial court made the following findings:
The testimony is that mother has failed to complete the required NAS,
Neonatal Abstinence Syndrome, parenting class although she did complete
a divorcing parent class at some point. However, the Court believes that
may have been prior to the last removal and would have certainly been
prior to the permanency plans requiring her to have Neonatal Abstinence
Syndrome parenting classes, so she has failed to complete that requirement.
She has failed to resolve or avoid criminal issues as evidence[d] by the
violation of probation and the failure to appear and picking up the theft
under $500.00 charge to begin with. She has not enjoyed a long-term
sobriety. There is testimony and there are records in evidence indicating
that mother has been seen at several rehab facilities. But with respect to at
- 18 -
least some of them she didn’t complete them or she was discharged from
them or she left against advice. She has not enjoyed long-term sobriety.
She has had an alcohol and drug assessment, but has apparently not
followed through on whatever recommendations were made. She has also,
subsequent to the first petition involving the removal for Neonatal
Abstinence Syndrome, had two additional children who were positive for
substances at the time of their birth.
(Emphasis added).
According to Mother’s argument, the trial court improperly focused upon
Mother’s failure to complete the NAS parenting class. Mother completed a parenting for
divorce class in May 2014; she testified that she mistakenly thought this satisfied the
permanency plan requirements and that no one from DCS told her that she needed
additional parenting classes.7 Ms. Jennings’s affidavit of reasonable efforts dated
November 3, 2015 states: “[Mother] has completed parenting classes and provided
documentation to the department.” With respect to Mother’s criminal issues, it is
important to note that all of her criminal charges relate to her conviction for theft under
$500 in October 2014. All of her probation violations stem from that original conviction.
At the time of the hearing, Mother testified that she planned to pay off her court costs and
fines in two weeks, thereby ending her probation.
One of the main reasons why Mother’s children were removed from her custody in
April 2014 was drug exposure. The permanent parenting plans required Mother to
“attend and honestly participate in the alcohol and drug assessment” and follow all
recommendations, provide DCS with documentation of completion of the assessment and
all recommendations, and submit to random drug screens. The record shows the
following sequence of events with respect to Mother’s drug abuse and treatment:
 May 29, 2014: Refused random drug screen.
 August 1, 2014: Tested positive for buprenorphine, opiates, hydromorphone,
opiate derivatives.
 September 17, 2014: Began outpatient treatment for opiate dependency at
Watauga, started on subutex. She was pregnant.
 November-December 14, 2014: Completed mental health assessment at
Health Connect. Discharged from therapy for lack of attendance.
 December 16, 2014: Birth of Christopher IV, tested positive for drugs.
 December 29-31, 2014: Treatment at Comprehensive Community Services
(“CCS”). Quit after two days.
7
Mother further testified that, after the birth of her fifth child (who is not at issue in this case), she and her
husband were told that, because the child was taken into custody immediately after birth, it was not
necessary for them to take the NAS parenting classes.
- 19 -
 Relapse after birth of Christopher IV and removal by DCS.
 February 23-March 17, 2015: Treatment at New Hope for opiate dependence.
Discharged due to continued use. Referred to higher level of care.
 March ?-27, 2015: Returned to CCS for a few days.
 October 2015-February 2016: Mother received treatment at Renaissance
Center’s halfway house until the birth of her baby on February 11, 2016. (On
November 12, 2015, Mother tested positive for buprenorphine and oxycodone.
This occurred during a short period when she left Renaissance. She was then
readmitted.)
 January 11, 2016: Back to Watauga for one outpatient counseling
appointment.
 February 11, 2016: Birth of Searia. Tested positive for drugs.
 February 2016-June 2016: Attended and graduated from Peninsula’s
intensive outpatient program. (Afterward, began relapse prevention program.)
 At the hearing, Mother testified that she had been drug-free for six months.
At the hearing, Ms. Jennings testified that Mother had completed an alcohol and drug
assessment, but that she herself had to request the documentation because Mother failed
to provide it. The trial court’s vague statement that Mother “has apparently not followed
through on whatever recommendations were made” does not constitute clear and
convincing evidence that she failed to substantially comply with the recommendations.
In fact, we do not find anything in the record detailing the recommendations made in the
alcohol and drug assessment.
Viewing the evidence as a whole, and focusing upon Mother’s efforts rather than
upon the results of those efforts, we conclude that DCS failed to prove by clear and
convincing evidence the elements necessary to terminate Mother’s parental rights on the
ground of substantial noncompliance. We, therefore, reverse the trial court’s termination
of Mother’s parental rights on this ground.
2. Shawn H.
The responsibilities of Shawn H. under the May 2014 permanency plan were the
same as for Mother except that, as to visitation, he was to contact DCS when he was
released from jail so that a visitation schedule could be established. Under the September
2014 permanency plan, Shawn H. was required to provide DCS with a relapse prevention
plan after completing alcohol and drug abuse rehabilitation. Additional requirements for
Shawn H. under the January 2015 permanency plan included complying with scheduled
meetings with in-home service providers to assist him with recommendations of mental
health and alcohol and drug assessments; and attend Celebrate Recovery to help maintain
a sober lifestyle. He was also required to submit applications for public housing and
public assistance, if eligible; apply new parenting skills during visits with the children
- 20 -
and show up on time for visits; contact DCS if he encountered barriers to obtaining
housing; if unable to locate housing within the required time frame, provide DCS with a
list of applications and contact information; and maintain contact with DCS twice a week.
With respect to Shawn H., the trial court made the following findings on the issue
of substantial noncompliance:
. . . He was to have an alcohol and drug assessment and follow the
recommendations, to have suitable income, have a suitable home, have his
criminal issues resolved, have a transportation plan, a mental health
assessment, all of the things mentioned [in the permanency plan].
[Shawn H.] did have an alcohol and drug assessment but did not
complete the follow-up and then suffered a relapse apparently.8 He has had
ongoing criminal issues and is currently serving an eight-year sentence. He
has no income, no appropriate home or transportation at this time. He did
complete some parenting classes.
Ms. Jennings testified that Shawn H. contacted her once or twice a week when he was not
incarcerated. She opined that he “would be a great parent to his children had it not been
for his inability to handle his alcohol and drug issues.” Ms. Jennings stated that Shawn
H. came to visits with the children two or three times in a state of visible intoxication.
The main argument made by Shawn H. on appeal is that the Department failed to
make reasonable efforts to help him complete the permanency plans. In the case of In Re
Kaliyah S., 455 S.W.3d 533, 535 (Tenn. 2015), our Supreme Court held that, pursuant to
Tenn. Code Ann. § 36-1-113, “the State need not prove that it made reasonable efforts as
an essential component of its petition to terminate parental rights.” This court has
specifically applied this holding to the ground of substantial noncompliance. See, e.g., In
re Jasmine B., No. M2016-00464-COA-R3-PT, 2016 WL 5345339, at *4-5 (Tenn. Ct.
App. Sept. 22, 2016); In re Faith W., No. M2014-01223-COA-R3-PT, 2015 WL
2438297, at *2-3 (Tenn. Ct. App. May 20, 2015); In re J.A.G., No. M2014-01469-COA-
R3-PT, 2015 WL 1022281, at *3-4 (Tenn. Ct. App. Feb. 27, 2015).
We conclude that the facts, as found by the trial court, clearly and convincingly
establish the elements necessary to terminate Shawn H.’s parental rights on the ground of
substantial noncompliance with the permanency plans.
8
“Apparently” is not a finding of a relapse by clear and convincing evidence. Words matter.
- 21 -
3. Christopher III
The January 2015 permanency plan (the only plan related to Christopher III’s
parental rights to Christopher IV) included the following action steps: submit to random
pill counts of prescribed medications; notify DCS of any new charges against him;
schedule an alcohol and drug assessment by February 13, 2015 and notify the Department
of the time and place of the assessment; submit to and pass random drug screens; provide
documentation to DCS of the resolution of all legal issues and the contact information for
his probation officer; provide a lease agreement to DCS by February 13, 2015 and
maintain safe, stable housing; notify the Department of changes in employment, address,
phone number, etc.; have a legal means of income and provide proof to DCS; attend
scheduled visitation on time; submit a transportation plan to DCS; contact DCS at least
once a week; schedule a parenting assessment by February 6, 2015, inform DCS of the
time and location, and provide DCS with documentation of any recommendations;
participate in a mental health evaluation, follow all recommendations, and provide DCS
with documentation of completion; if he did not have insurance, apply for insurance and
provide DCS with a denial letter; and attend neonatal abstinence syndrome classes and
notify DCS of any need for assistance. Christopher III was also required to submit
applications for public housing and public assistance, if eligible; apply new parenting
skills during visits with the children and show up on time for visits; contact DCS if he
encountered barriers to obtaining housing; and, if unable to locate housing within the
required time frame, provide DCS with a list of applications and contact information.
Christopher III argues that the trial court erred in terminating his rights to
Christopher IV on the ground of substantial noncompliance because the Department
failed to prove by clear and convincing evidence (1) that the requirements of the
permanency plan were reasonably related to the conditions that necessitated foster
placement, and (2) that Christopher III failed to substantially comply with the
requirements of the permanency plan.
In responding to Christopher III’s first argument, the Department contends that
permanency plan requirements may be related “both to the child’s removal and to family
reunification.” In re Valentine, 79 S.W.3d at 547. The termination petition seeks to
terminate Christopher III’s parental rights with respect to Christopher IV, the only one of
Mother’s children for whom he is the biological father. Christopher III’s involvement
with this case started before Christopher IV’s birth, however. He was part of Mother’s
life when the Department took custody of the three older children and, therefore, was a
participant in the permanency plans developed in May and September 2014.
After Christopher IV was born in December 2014, the Department filed a petition
to remove him from his parents’ custody while he was still in the hospital. The basis for
the petition was Christopher IV’s drug exposure at birth and his parents’ history of drug
abuse. The new permanency plan developed in January 2015 included all of the
- 22 -
requirements from the previous plans and also required Christopher III to attend neonatal
abstinence syndrome classes. As the Supreme Court stated in In re Valentine, 79 S.W.3d
at 547, “[c]onditions necessitating foster care placement may include conditions related
both to the child’s removal and to family reunification.” The tasks included in
Christopher III’s permanency plans are reasonably related to the conditions that led to the
removal of Christopher IV and to Christopher III’s reunification with his son.
Clear and convincing evidence shows that Christopher III failed to substantially
comply with the requirements of the permanency plans. Most significantly, he visited
Christopher IV only three times, once in the hospital and twice in April 2015.
Christopher III admits that he lost his house and relapsed on drugs after Christopher IV
was removed from the parents’ custody. He failed a drug screen in January 2015.
Christopher III failed to complete a mental health assessment and failed to show that he
followed any of the recommendations of the alcohol and drug assessment he completed.
He was incarcerated for several days in June 2015 on a previous theft charge, from
October 2015 to May 2016 on another theft charge, and from July 2016 through the trial
on a probation violation. Christopher III never provided proof of completion of a class
on neonatal abstinence syndrome.
The facts, as found by the trial court, clearly and convincingly establish the
elements necessary to terminate Christopher III’s parental rights on the ground of
substantial noncompliance with the permanency plans.
H. Persistence of conditions
In its petition to terminate parental rights, DCS alleged the ground of persistent
conditions with respect to Mother and Christopher III. The Department concedes this
ground as to Mother’s and Christopher III’s rights to Christopher IV because the record
does not contain a final dependency and neglect order with respect to Christopher IV.
See In re Audrey S., 182 S.W.3d at 874 (holding that the ground of persistence of
conditions only applies “where the prior court order removing the child from the parent’s
home was based on a judicial finding of dependency, neglect, or abuse”). We agree that
the ground of persistence of conditions has not been proven by clear and convincing
evidence with respect to Christopher IV and, therefore, we reverse the trial court’s
termination of Mother’s and Christopher III’s parental rights to Christopher IV on this
ground.
We now proceed to address whether the trial court erred in terminating Mother’s
parental rights to the oldest three children on the grounds of persistence of conditions.
Tennessee Code Annotated section 36-1-113(g)(3) authorizes termination of parental
rights when:
- 23 -
The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions that
in all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child’s safe return to the
care of the parent or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent or parents or
the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable
and permanent home[.]
As this court has previously stated, the goal of the ground of persistence of
conditions “is to avoid having a child in foster care for a time longer than reasonable for
the parent to demonstrate her ability to provide a safe and caring environment for the
child.” In re Malaki E., 2015 WL 1384652, at *9 (citing In re Arteria H., 326 S.W.3d
167, 178 (Tenn. Ct. App. 2010), overruled on other grounds, In re Kaliyah S., 455
S.W.3d at 555 n.34). The persistence of conditions ground focuses “on the results of the
parent’s efforts at improvement rather than the mere fact that he or she had made them.”
In re Audrey S., 182 S.W.3d at 874. The court must determine “the likelihood that the
child can be safely returned to the custody of the mother, not whether the child can safely
remain in foster care . . . .” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL
1006959, at *5 (Tenn. Ct. App. July 21, 2000). “A parent’s continued inability to
provide fundamental care to a child, even if not willful, whether caused by a mental
illness, mental impairment, or some other cause, constitutes a condition which prevents
the safe return of the child to the parent’s care.” In re Jamazin H.M., No. W2013-01986-
COA-R3-PT, 2014 WL 2442548, at *6 (Tenn. Ct. App. May 28, 2014).
In this case, Quintin, Aglacia, and Zavera first entered DCS custody in April 2014
and were determined to be dependent and neglected due to drug exposure and
environmental neglect. Mother was convicted of theft under $500 in September or
October 2014. Christopher IV was born drug-exposed in December 2014. Mother
became homeless and returned to heavy drug use after Christopher IV was removed from
her custody. She was in and out of treatment programs. In May 2015, Mother was
incarcerated on a probation violation. When the petition to terminate Mother’s parental
rights was filed in July 2015, her problems with drug use and unstable housing were
ongoing.
- 24 -
Mother testified at the hearing that she had been drug-free for six months and that
she had obtained stable housing. The Department points out that Mother failed to notify
her caseworker of her new address or to provide documentation of completion of alcohol
and drug treatment. Two weeks before the trial, Mother was incarcerated for ten days for
violating probation and failing to appear. While we commend Mother for her efforts to
improve the conditions preventing the return of the children to her custody, we agree with
the trial court that there is clear and convincing evidence to establish that some of these
conditions persist and that there is “no evidence that those conditions will be remedied
soon so that the children could be returned safely to the home.” Mother’s improvements
in the months immediately preceding the hearing are “too little too late” in light of her
long history of unstable housing and drug use as well as her criminal charges and
incarcerations. See In re A.M.T., No. M2003-02926-COA-R3-PT, 2004 WL 1488573, at
*9 (Tenn. Ct. App. July 2, 2004) (including discussion of last minute efforts in the
context of persistent conditions).
Moreover, continuation of Mother’s relationship with the children “greatly
diminishes the child[ren]’s chances of early integration into a safe, stable and permanent
home.” Tenn. Code Ann. § 36-1-113(g)(3)(C). The children have been with the foster
parents since December 2014 and, according to their therapist, the children and the foster
parents have a caring and loving relationship. The therapist opined that it would be “the
biggest mistake in the world” to remove the children from the foster home. The foster
parents wish to adopt the children if possible.
I. Severe child abuse
The petition to terminate parental rights alleges: (1) that Mother and Shawn H.
committed severe child abuse against Zavera, and (2) that Mother and Christopher III
committed severe child abuse against Christopher IV. The trial court denied the ground
of severe child abuse as to both Mother and Christopher III and made no ruling on this
ground with respect to Shawn H. On appeal, the Department argues that the trial court
erred in failing to terminate Mother’s parental rights on the ground of severe child abuse.
Tennessee Code Annotated section 36-1-113(g)(4) establishes a ground for
parental termination under the following circumstances:
The parent or guardian has been found to have committed severe child
abuse as defined in § 37-1-102, under any prior order of a court or is found
by the court hearing the petition to terminate parental rights or the petition
for adoption to have committed severe child abuse against the child who is
the subject of the petition or against any sibling or half-sibling of such
child, or any other child residing temporarily or permanently in the home of
such parent or guardian[.]
- 25 -
The definition of “severe child abuse” in Tenn. Code Ann. § 37-1-102(b)(21) (2015)9
provided, in pertinent part:
(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;
(ii) “Serious bodily injury” shall have the same meaning given in § 39-15-
402(d).10
(B) Specific brutality, abuse or neglect towards a child that in the opinion
of qualified experts has caused or will reasonably be expected to produce
severe psychosis, severe neurotic disorder, severe depression, severe
developmental delay or intellectual disability, or severe impairment of the
child’s ability to function adequately in the child’s environment, and the
knowing failure to protect a child from such conduct[.]
1. Mother
In denying this ground as to Mother, the trial court ruled as follows:
The basis again is going back to the initial removal. There is no
allegation of severe child abuse, and in fact, DCS advocated for the return
of that child to mother. A prior Court has found no severe abuse at the
Preliminary Hearing state as to [Christopher III]. Moreover, having
reviewed the testimony of Dr. Weinstein; the standard under 37-1-102:
knowing exposure or failure to protect a child from abuse or neglect that is
likely to cause serious bodily injury or death or specific abuse or neglect
towards a child that in the opinion of an expert has caused or will
reasonably be expected to produce severe psychosis, severe neurotic
disorder, severe depression, severe developmental delay, or intellectual
disability or severe impairment of the child’s ability to function adequately
in the child’s environment.
Having read Dr. Weinstein’s deposition testimony, it seems clear
that her opinion is that the children who were born with Neonatal
9
We reference the version of the statute in effect at the time the petition to terminate parental rights was
filed. This section has since been amended.
10
Tennessee Code Annotated section 39-15-402(d) (2015) defined “[s]erious bodily injury to the child”
as including, but not limited to, “second- or third-degree burns, a fracture of any bone, a concussion,
subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain contusion, injuries to the
skin that involve severe bruising or the likelihood of permanent or protracted disfigurement, including
those sustained by whipping children with objects.”
- 26 -
[A]bstinence Syndrome were placed in an increased risk. But the Court
does not find that her testimony establishes that they are reasonably likely
to suffer or do suffer from some of the things associated with the increased
risk. So for that reason, as to mother, the severe child abuse is not found.
We respectfully disagree with the trial court’s reasoning. As the Department
points out, Tenn. Code Ann. § 36-1-113(g)(4) does not require a finding of severe abuse
by a previous court; it specifically provides that the “court hearing the petition to
terminate parental rights” may make a finding of severe child abuse. Moreover, the
Court of Appeals has previously found severe child abuse based upon a child’s exposure
to drugs in utero and withdrawal symptoms at birth, including problems with feeding and
sleep. See Cornelius v. State Dep’t of Children’s Servs., 314 S.W.3d 902, 908, 910-11
(Tenn. Ct. App. 2009). The court noted that a child’s later healthy development “‘does
not diminish the severity of the harm to which the child was exposed.’” Id. at 910
(quoting In re M.J.J., No. M2004-02759-COA-R3-PT, 2005 WL 873305, at *8 (Tenn.
Ct. App. Apr. 14, 2005)).
The evidence in the record establishes that Mother used illegal drugs during her
pregnancies with Zavera and Christopher IV, and that both children were born exposed to
drugs. When Zavera was born, her meconium11 tested positive for opiates and
cannabinoids. She was diagnosed with narcotic abstinence syndrome and took medicine
(phenobarbital) to decrease the symptoms of drug withdrawal. While in the hospital,
Zavera exhibited symptoms of loose stools, increased muscle tone, excessive crying and
sucking, poor feeding, tremors, and little sleep. She remained in the hospital for over a
week after birth. When Christopher IV was born, his cord blood tested positive for
buprenorphine and meperidine, and his score on the Finnegan Neonatal Abstinence
Scoring System reached twelve.12 He was diagnosed with narcotic abstinence syndrome
and given medication to treat his withdrawal symptoms.
Dr. Miriam Weinstein, a specialist in pediatric rehabilitation and developmental
pediatrics, testified about the dangers to a child, like Zavera, whose mother uses
oxymorphone during pregnancy:
Well, there’s dangers in terms of how well the brain develops. The
pathways especially for sensory processing can be impaired. The pathways
for things like higher-order level emotional control, which are not so
11
Meconium is “a dark greenish mass that accumulates in the bowel during fetal life and is discharged
shortly after birth.” https://www.merriam-webster.com/dictionary/meconium.
12
The Finnegan Neonatal Abstinence Scoring System is a scale designed to measure the severity of NAS
and to provide guidance for treatment. For a score of eight or greater, pharmacologic therapy is
recommended. Lauren M. Jansson, Martha Velez & Cheryl Harrow, The Opioid Exposed Newborn:
Assessment and Pharmacologic Management, 5(1) J OPIOID MANAG. 47-55 (2009).
- 27 -
apparent when a child is an infant, may also assume problems and be
impaired.
Dr. Weinstein testified that suboxone and subutex are safer than street drugs if taken with
a prescription. She opined that using a variety of drugs and switching back and forth “is
not good for the developing brain because each one tends to hit the circuits a little
differently and cumulatively.”
Dr. Weinstein expressed concern about Mother’s polysubstance abuse during her
pregnancy with Zavera and the ultrasound results showing growth retardation of the
baby. Head circumference on the ultrasound was in the tenth percentile. Based upon
Zavera’s Finnegan scores (as high as ten on phenobarbital and diluted tincture of opium),
Dr. Weinstein described the pain the baby was experiencing as follows:
The child is experiencing pretty much the same sort of things that an adult
experiences with withdrawal. They have—They can have an increase in
blood pressure, an increase in muscle tone, increase in discomfort, be so
upset that they cry nonstop and can’t be comforted. You can’t have a long
discussion with them. But if you listen to them, you realize that they are
very, very uncomfortable.
She further testified that, without the proper medication management, such a baby can
have a seizure, which could cause death. According to Dr. Weinstein, children with
narcotic abstinence syndrome are “at increased risks for a lot of developmental issues,
including just sensory processing of helping them to become comfortable in their own
skins.” She stated that these children “are more at risk for developmental delays;
walking, talking, and so on.”
With respect to the medical records on Christopher IV, Dr. Weinstein noted with
concern Mother’s tendency to start and stop taking subutex, which causes withdrawal
symptoms for the unborn baby. During his hospitalization, Christopher IV was started on
diluted tincture of opium to treat his withdrawal symptoms.
Asked specifically about the risks to which these two children were exposed, Dr.
Weinstein responded, as to Zavera:
The most severe is fetal demise, intrauterine growth retardation, poor brain
development. She was at risk for long-term issues with neuromotor
development, sensory processing disorders so that she would be having
problems with ordinary sensations like sounds, touch, motion, and so on.
Feeding problems, both when she was having withdrawal and, also, when
she was being transitioned from, say, the bottle to regular food because of
sensory issues. Babies who have had this exposure can have problems with
- 28 -
adjusting to table foods and have feeding issues because of that. Learning
disabilities, behavioral issues, increased risks for psychosocial issues in
adolescence and young adulthood. So, there’s quite a long list.
Dr. Weinstein then opined that these same risks applied equally to Christopher IV.
As noted above, children’s exposure to drugs and withdrawal symptoms at birth
alone can be sufficient to constitute severe abuse. See Cornelius, 314 S.W.3d at 909-11.
Moreover, contrary to the trial court’s conclusion, the evidence in the record establishes
that Zavera and Christopher IV suffer from some of the problems for which their
exposure to drugs at birth put them at risk, as described by Dr. Weinstein in her
testimony.
At the time of the hearing, Zavera was almost four years old. The foster mother
testified that Zavera only slept two to three hours a night; she was being treated at a sleep
center. She exhibited developmental delays on testing and was in a developmental pre-
kindergarten program that provided services for her developmental delays as well as
speech therapy. Zavera was also receiving behavioral therapy for aggression impulsivity.
The foster mother testified that Zavera had pica,13 which caused her to eat things such as
trash and puzzle pieces. Furthermore, Zavera had no fear of strangers and no
comprehension of cause and effect. According to the foster mother, Zavera “would
literally do something that could hurt her” and “if you explain to her the consequences of
that, she would go back and do it again.”
Christopher IV was not yet two years old at the time of the hearing. He was under
the care of a specialist in narcotic abstinence syndrome who evaluated his progress.
Christopher IV had “a sensory issue with feeding” involving his gag reflex; he did not eat
solid food and was not gaining weight appropriately. He ate PediaSure and was in
feeding therapy, but the foster mother testified that he was “not doing well” with the
feeding therapy, in which he was to be weaned off of Pediasure. He could not eat even
baby food.
In light of this evidence, we conclude that there is clear and convincing evidence
that Mother exposed Zavera and Christopher IV to severe child abuse, most particularly
to “abuse or neglect . . . that in the opinion of qualified experts has caused or will
reasonably be expected to produce . . . severe developmental delay or intellectual
disability, or severe impairment of the child’s ability to function adequately in the child’s
environment.” Tenn. Code Ann. § 36-1-102(b)(21)(B) (2015). Therefore, the trial court
erred in failing to terminate Mother’s parental rights on the ground of severe child abuse.
13
Pica is “an abnormal desire to eat substances (such as chalk or ashes) not normally eaten.”
https://www.merriam-webster.com/dictionary/pica.
- 29 -
2. Christopher III
The Department does not argue against the trial court’s denial of the severe child
abuse ground as to Christopher III. There is evidence in the record to show that Father
attempted to help Mother to stay off of illegal drugs during her pregnancy with
Christopher III. The trial court found that “this Court would not find any evidence of
severe abuse in the record as to [Christopher III].” We agree with the trial court’s
conclusion that this ground was not established as to Christopher III by clear and
convincing evidence.
II. Best Interest
Having found clear and convincing evidence exists for at least one ground to
terminate the parental rights of Mother, Shawn H., and Christopher III, we next consider
whether the trial court properly determined that termination of each parent’s rights is in
the children’s best interest. See Tenn. Code Ann. § 36-1-113(c)(2); In re D.L.B., 118
S.W.3d 360, 367 (Tenn. 2003) (noting that the trial court is only required to find one
statutory ground for terminating a parent’s rights). In reviewing the trial court’s best
interest determination, we are mindful that, “Facts relevant to a child’s best interests need
only be established by a preponderance of the evidence, although DCS must establish that
the combined weight of the proven facts amounts to clear and convincing evidence that
termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d at 535
(citing In re Kaliyah, 455 S.W.3d at 555).
The factors a trial court is to consider in determining whether terminating a
parent’s rights to his or her children is in the children’s best interest are set forth in Tenn.
Code Ann. § 36-1-113(i) and include the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
- 30 -
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
The best interest analysis “does not call for a rote examination of each of Tenn. Code
Ann. § 36-1-113(i)’s nine factors”; rather, the relevance and weight accorded to each
factor depends upon the facts of each case. In re Audrey S., 182 S.W.3d at 878.
Moreover, the list of factors in Tenn. Code Ann. § 36-1-113(i) is not exhaustive, and the
court may consider any other relevant factors. In re M.A.R., 183 S.W.3d 652, 667 (Tenn.
Ct. App. 2005); White v. Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004).
The trial court made the following findings regarding the best interest of the
children in this case:
The court does find, based upon all of the testimony and the
evidence in this case, that the parents have not made adjustments of
circumstances or conduct to make it safe or in the Best Interest of these
children to be returned to their custody. Specifically, both fathers are
currently in jail, in custody for criminal offenses. No one seems to have a
stable housing situation. Mother has been in jail but is out now. Mother
has continued to struggle with substance abuse. She has presented for
treatment at places, but there is nothing in the record to suggest that she has
had any long term sobriety. The Court finds that they have not made any
lasting adjustment and the Court does find that reasonable efforts were
made by the Department of Children’s Services to help them to work their
Permanency Plan and to make lasting adjustments so that custody could be
returned.
The parents have not maintained regular visitation or contact with
the children. The court has outlined the relevant time period where [Mother
and Christopher III] had two visits and [Shawn H.] had one visit. The
Court determines that to be token visitation. None of them have apparently
visited with the children in quite some time. The Court finds that there is
not a meaningful relationship that has been established between the parents
- 31 -
and the children. Moreover, very importantly, there has been testimony
from a qualified expert that changing caretakers or change in physical
custody of the children is likely to have a negative impact.
The Court also finds that foster parents have had the children in
therapy. They have had the children in extracurricular activities. The
[foster] mother is a stay-at-home mother. They seem to be well bonded
with the children. The children, according to testimony, refer to the foster
parents as “mom and dad.” The Court does find that changing caretakers or
physical custody is likely to have a negative impact upon the children at
this point.
The physical environment of the parents, if custody were returned to
them, could include criminal activity or use of illegal or illicit drugs; based
upon the rather extensive history of criminal activity and drug use that has
been established in this case.
There has also been a lack of support financially by the parents, as
previously mentioned and addressed.
Lastly, with respect to the mental and emotional status of the
parents, particularly if they are still having issues with drug abuse or drug
dependence, the Court finds that could be detrimental to having the children
placed with them.
For these reasons, the trial court concluded that it was in the best interest of all four
children for the parental rights of Mother, Shawn H., and Christopher III to be
terminated.
In arguing that terminating her parental rights is not in the best interest of the
children, Mother emphasizes her improvement in the months before the hearing, when
she testified that she had been drug-free for six months, was living in a fully-furnished
four-bedroom home, and was employed cleaning houses. Despite Mother’s
commendable efforts, the evidence does not preponderate against the trial court’s finding
that “there is nothing in the record to suggest that [Mother] has had any long term
sobriety.” Mother complains that DCS failed to make reasonable efforts to assist her, but
she herself failed to maintain contact with the Department, thereby hampering its efforts
to help her.
Shawn H. emphasizes the statement of Ms. Jennings that he would be a great
parent if not for his substance abuse issues. He points out that he is presently drug-free,
but he is also incarcerated on an eight-year sentence. Christopher III points out that he
was employed and paid child support when he was not incarcerated. Unfortunately, at
the time of trial, he was incarcerated and had pending drug charges. Moreover, he only
visited his son a few times when he was not incarcerated.
- 32 -
We agree with the trial court that there is clear and convincing evidence that
termination of the parental rights of Mother, Shawn H., and Christopher III is in the best
interest of the children.
For the foregoing reasons, we affirm the trial court’s termination of Mother’s
parental rights on the grounds of abandonment by failure to visit in the four months prior
to incarceration (Tenn. Code Ann. § 36-1-102(1)(A)(iv)); abandonment by wanton
disregard (Tenn. Code Ann. § 36-1-102(1)(A)(iv)); and persistence of conditions as to the
oldest three children (Tenn. Code Ann. § 36-1-113(g)(3)). We reverse the trial court’s
denial of the ground of severe child abuse (Tenn. Code Ann. § 36-1-113(g)(4)) and find
that there is clear and convincing evidence to support this ground for termination of
Mother’s parental rights as to Zavera and Christopher III. We further reverse the trial
court’s decision with respect to the following grounds for termination of Mother’s rights
as we have concluded that there is not clear and convincing evidence to support these
grounds: abandonment by failure to visit or support during the four months prior to the
filing of the petition (Tenn. Code Ann. § 36-1-102(1)(A)(i)); abandonment by failure to
support during the four months prior to incarceration (Tenn. Code Ann. § 36-1-
102(1)(A)(iv)); abandonment by failure to provide a suitable home (Tenn. Code Ann. §
36-1-102(1)(A)(ii)); substantial noncompliance (Tenn. Code Ann. § 36-1-113(g)(2)); and
persistence of conditions with respect to Christopher IV (Tenn. Code Ann. § 36-1-
113(g)(3)).
As to Shawn H., we affirm the decision of the trial court with respect to the
grounds of abandonment by failure to visit during the four months prior to the filing of
the petition (Tenn. Code Ann. § 36-1-102(1)(A)(i)); and substantial noncompliance
(Tenn. Code Ann. § 36-1-113(g)(2)). We reverse as to the ground of abandonment by
failure to support during the four months prior to the filing of the petition (Tenn. Code
Ann. § 36-1-102(1)(A)(i)).
We affirm the trial court’s decision to terminate Christopher III’s parental rights
on the grounds of abandonment by failure to visit during the four-month period prior to
incarceration (Tenn. Code Ann. § 36-1-102(1)(A)(iv)); abandonment by wanton
disregard (Tenn. Code Ann. § 36-1-102(1)(A)(iv)); and substantial noncompliance (Tenn.
Code Ann. § 36-1-113(g)(2)). We further affirm the trial court’s denial of termination of
Christopher III’s parental rights on the grounds of abandonment by failure to support
prior to incarceration (Tenn. Code Ann. § 36-1-102(1)(A)(iv)), or prior to the filing of the
petition (Tenn. Code Ann. § 36-1-102(1)(A)(i)); and severe child abuse (Tenn. Code
Ann. § 36-1-113(g)(4)). We reverse as to the following grounds with respect to
Christopher III: abandonment by failure to visit during the four months prior to the filing
of the petition (Tenn. Code Ann. § 36-1-102(1)(A)(i)); abandonment by failure to provide
a suitable home (Tenn. Code Ann. § 36-1-102(1)(A)(ii)); and persistent conditions (Tenn.
Code Ann. § 36-1-113(g)(3)).
- 33 -
CONCLUSION
As stated above, we affirm in part and reverse in part the decision of the trial court
with respect to the grounds upon which termination is granted as to each parent. We
affirm the trial court’s decision regarding the best interest of the children. The judgment
of the trial court terminating the parental rights of each of the defendants is affirmed.
This matter is remanded with costs of appeal assessed against the Department of
Children’s Services, and execution may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
- 34 -