Session September 20, 2016
from the Juvenile Court for Rutherford County No. TC1674T
Donna Scott Davenport, Judge
petition of the Tennessee Department of Children's
Services ("the Department"), the trial court
terminated the parental rights of Mother. We reverse the
trial court's determination that Mother willfully failed
to support her children prior to her incarceration and its
determination that she failed to substantially comply with
the requirements of the family permanency plans created in
this case. However, clear and convincing evidence supports
the remaining grounds for termination relied upon by the
trial court, as well as the trial court's determination
that the termination of Mother's parental rights is in
the children's best interest. Accordingly, we affirm the
termination of Mother's parental rights.
R. App. P. 3 Appeal of Right; Judgment of the Juvenile Court
Reversed in Part, Affirmed in Part and Remanded
Moore, Murfreesboro, Tennessee, for the appellant, Jessica K.
Herbert H. Slatery, III, Attorney General and Reporter,
Alexander S. Rieger, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
B. Goldin, J., delivered the opinion of the Court, in which
Richard H. Dinkins and Kenny Armstrong, JJ., joined.
B. GOLDIN, JUDGE
AND PROCEDURAL HISTORY
appeal, we address the termination of parental rights of
Jessica K. ("Mother") to her two children, Jakob O.
and Lukas O. Jakob was born in June 2003;
was born several years later in August 2010. Although the
children's father, Bobby O. ("Father"), resided
with Mother off-and-on over the years, the two never married.
children first came into the custody of the Department in
2010 shortly after Lukas tested positive for drugs at his
birth. Although Father was not living with Mother at this
time, he later moved in with her in the spring of 2011. By
September 2011, however, Father had moved out from
Mother's home following a domestic violence episode
between them. The children were eventually returned to Mother
in December 2011 at the conclusion of a trial home pass, but
by order of the Rutherford County Juvenile Court,
Father's visitation with the children was restricted to
four hours per month with a supervising agency.
the restriction imposed on Father's visitation with the
children, Mother allowed Father to move back in with her and
the children sometime around August 2012. A few short months
later, in October 2012, the children were removed from
Mother's home a second time after the Department received
a referral with "allegations of drug exposed child,
environmental neglect[, ] and educational neglect." In
light of its investigation into the children's
circumstances, the Department petitioned to have the children
declared dependent and neglected.
affidavit filed in support of the Department's petition
to declare the children dependent and neglected, a Department
employee outlined the specific risks that necessitated the
children's removal from Mother's home:
At the time of the current referral, DCS arrived at the home
to address concerns listed in this referral. CPSA Jones was
advised by [Father] that Jakob had missed school due to
illness. Jakob had been taken to the doctor by [Mother] at
this time. [Father] was drug screened at that time and was
positive for Benzoidiazapine but did not have a prescription.
[Father] denied the use of any medications other than Advil
over the counter. [Mother] and Jakob returned to the home.
[Mother] was drug screened and was negative for all
substances. [Mother] was screened a second time after Jakob
admitted that he provided urine for his mother. That drug
screen also yielded negative results. A third drug screen was
administered by law enforcement to [Mother] which yielded
positive results for THC. Law enforcement was present at this
time and contacted the codes departments. Dennis Blair, Fire
Inspector for City of Lavergne Codes Department came to the
home . . . and deemed the home uninhabitable due to the
condition of the home. There were dishes in the sink growing
mold and bacteria. Old food was found in the children's
bedrooms and there were flies and knats [sic] throughout the
home. The carpet was filthy with what appeared to be animal
feces and there was a strong unpleasant odor in the home. The
outside of the home had several trash bags that appeared to
have been there for some time. There was wood and nails lying
at the entrance of the home. There were two containers
outside the garage and according to [Father], they were
filled with gasoline.
October 24, 2012, the Juvenile Court entered a protective
custody order placing the children in the temporary custody
of the Department. A hearing on the Department's
dependency and neglect petition later occurred on February
13, 2013. Following the hearing, by order entered on March 6,
2013, the Juvenile Court found the children dependent and
neglected. In pertinent part, the Juvenile Court's March
6 order stated as follows: "(1) Mother exposed the
Children to environmental neglect in her home; (2) that the
home was in such condition of neglect that it was condemned
by the local codes department; (3) that the neglect found in
the home was of such a degree and was unsafe that the Mother
was arrested for Reckless Endangerment; and (4) that the
oldest Child . . . was educationally neglected."
the children's removal from Mother's home in October
2012, a number of family permanency plans were created. The
first of these plans was created on November 8, 2012. Among
other things, the November 8, 2012 permanency plan directed
Mother to: "abide by the rules of probation, "
refrain from the use of alcohol or drugs, participate in
random drug screens and pill counts, participate in "a
non-self reporting clinical assessment with an A&D and
parenting component and follow all recommendations, "
show proof of legal means of income, provide the Department
with a budget, and provide the Department with childcare and
transportation plans. The record shows that on the same day
that the first permanency plan was created, Mother received a
copy of the "Criteria & Procedures for Termination
of Parental Rights."
second permanency plan was created on May 20, 2013. Save for
a few additional requirements, Mother's requirements
under the second permanency plan were substantially similar
to what was required of her under the first plan. According
to the second permanency plan, Mother's alcohol and drug
assessment, which had been completed in December 2012,
recommended that Mother receive counseling to address her
grief, participate in relationship counseling with Father,
and receive homemaker services. Following the creation of the
second permanency plan, additional permanency plans were
created on November 18, 2013, May 27, 2014, and December 3,
2014. Mother's requirements under these latter three
plans were virtually the same as those established under the
first two permanency plans.
January 10, 2014, the Department filed a petition to
terminate Mother's parental rights in the Rutherford
County Juvenile Court. At the time that the petition was filed,
Mother was incarcerated for a violation of probation.
According to Mother, she had been on probation for two
separate charges: a DUI offense and reckless endangerment.
The reckless endangerment charge specifically stemmed from
the condition of Mother's home at the time her children
were removed in October 2012. In support of its request to
terminate Mother's parental rights, the Department
averred that the following grounds for termination existed:
(1) abandonment by failure to visit, Tenn. Code Ann. §
36-1-102(1)(A)(i); (2) abandonment by failure to support,
Tenn. Code Ann. § 36-1-102(1)(A)(i); (3) abandonment by
an incarcerated parent for failure to visit, Tenn. Code Ann.
§ 36-1-102(1)(A)(iv); (4) abandonment by an incarcerated
parent for failure to support, Tenn. Code Ann. §
36-1-102(1)(A)(iv); (5) abandonment by engaging in conduct
prior to incarceration that exhibited a wanton disregard for
the children's welfare, Tenn. Code Ann. §
36-1-102(1)(A)(iv); (6) abandonment by failure to provide a
suitable home, Tenn. Code Ann. § 36-1-102(1)(A)(ii); (7)
substantial noncompliance with the permanency plan, Tenn.
Code Ann. § 36-1-113(g)(2); and (8) persistent
conditions, Tenn. Code Ann. § 36-1-113(g)(3).
trial in the case took place over several dates, beginning on
April 23, 2015 and concluding on November 10, 2015. On
December 1, 2015, the trial court issued an oral ruling from
the bench and determined that Mother's parental rights
should be terminated. A written order memorializing this
ruling was later entered by the trial court on February 5,
2016. Pursuant to its February 5 written order, the trial
court concluded that Mother's parental rights should be
terminated on six of the eight grounds asserted against
Mother in the Department's petition. Specifically, the
trial court concluded that: (1) Mother had abandoned the
children by failing to visit them prior to incarceration; (2)
Mother had abandoned the children by failing to support them
prior to incarceration; (3) Mother had abandoned the children
by engaging in conduct prior to incarceration that exhibited
a wanton disregard for the children's welfare; (4) Mother
had abandoned the children by failing to establish a suitable
home; (5) a persistence of conditions existed that prevented
the children's return to Mother; and (6) Mother had
failed to substantially comply with the permanency plans. The
trial court also concluded that the termination of
Mother's parental rights would be in the children's
best interests. Mother thereafter filed a timely notice of
brief on appeal, Mother raises seven issues for our review,
which we have slightly restated as follow:
1. Whether the trial court erred in finding abandonment by
failure to visit prior to incarceration.
2. Whether the trial court erred in finding abandonment by
failure to support prior to incarceration.
3. Whether the trial court erred in finding abandonment by
4. Whether the trial court erred in finding abandonment by
failure to provide a suitable home.
5. Whether the trial court erred in finding persistence of
6. Whether the trial court erred in finding substantial
noncompliance with the permanency plans.
7. Whether the trial court erred in finding that termination
of Mother's parental rights is in the children's best
that even if the issues raised in Mother's brief had not
been this comprehensive, our review on appeal would not be
limited. In order to help "ensure that fundamental
parental rights are not terminated except upon sufficient
proof, proper findings, and fundamentally fair procedures,
" we are required to review the trial court's
findings as to each ground for termination and as to whether
termination is in the child's best interest. See In
re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016)
("[I]n an appeal from an order terminating parental
rights the Court of Appeals must review the trial court's
findings as to each ground for termination and as to whether
termination is in the child's best interests, regardless
of whether the parent challenges these findings on
biological parent's right to the care and custody of his
or her child is among the oldest of the judicially recognized
liberty interests protected by the due process clauses of the
federal and state constitutions." In re M.L.P.,
228 S.W.3d 139, 142 (Tenn. Ct. App. 2007) (citations
omitted). "Although this right is fundamental and
superior to claims of other persons and the government, it is
not absolute." In re J.C.D., 254 S.W.3d 432,
437 (Tenn. Ct. App. 2007) (citation omitted). "It
continues without interruption only as long as a parent has
not relinquished it, abandoned it, or engaged in conduct
requiring its limitation or termination." In re
M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)
(citations omitted). In Tennessee, proceedings to terminate
parental rights are governed by statute. State Dep't
of Children's Servs. v. A.M.H., 198 S.W.3d 757, 761
(Tenn. Ct. App. 2006). Pursuant to the Tennessee Code,
parties who have standing to seek the termination of a
parent's parental rights must prove two things. They must
first prove at least one of the statutory grounds for
termination. In re J.C.D., 254 S.W.3d at 438 (citing
Tenn. Code Ann. § 36-1-113(c)(1)). Then, they must prove
that termination of parental rights is in the child's
best interests. Id. (citing Tenn. Code Ann. §
the decision to terminate a parent's parental rights has
"profound consequences, " trial courts must apply a
higher standard of proof in deciding termination cases.
In re M.L.P., 228 S.W.3d at 143. "To terminate
parental rights, a court must determine that clear and
convincing evidence proves not only that statutory grounds
exist but also that termination is in the child's best
interest." In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)).
"Clear and convincing evidence is evidence that
eliminates any substantial doubt and that produces in the
fact-finder's mind a firm conviction as to the
truth." In re M.A.B., No.
W2007-00453-COA-R3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App.
Aug. 20, 2007) (citation omitted). This heightened burden of
proof "minimizes the risk of erroneous decisions."
In re M.L.P., 228 S.W.3d at 143 (citations omitted).
the heightened burden of proof required under the statute, we
must adapt our customary standard of review. In re Audrey
S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
"First, we must review the trial court's specific
findings of fact de novo in accordance with Tenn. R. App. P.
13(d)." In re M.J.B., 140 S.W.3d at 654.
"Second, we must determine whether the facts, either as
found by the trial court or as supported by the preponderance
of the evidence, clearly and convincingly establish the
elements required to terminate a biological parent's
parental rights." Id. (citations omitted).
with the Tennessee Supreme Court's direction in In re
Carrington H., we are required to review the trial
court's findings as to each ground for termination.
See In re Carrington H., 483 S.W.3d at 525-26.
Accordingly, in the analysis that follows, we review each
ground for termination relied upon by the trial court
separately. However, notwithstanding the comprehensive nature
of our review, we ultimately need only find that one ground
for termination was established in order to uphold the trial
court's decision. In re Valentine, 79 S.W.3d at
first ground for termination listed in our termination
statute, and the most frequently relied on, is abandonment.
In re Audrey S., 182 S.W.3d at 862 (citations
omitted). The acts that constitute abandonment are outlined
in Tennessee Code Annotated section 36-1-102, which provides
five alternative definitions. In this case, the trial court
determined that Mother's actions satisfied four bases for
abandonment included among the statutory definitions. We
address each of its conclusions regarding Mother's
abandonment in turn.
Under Tenn. Code Ann. § 36-1-102(1)(A)(iv): Abandonment
by Willful Failure to Visit, Willful Failure to Support, and
first three bases of abandonment relied upon by the trial
court are contained in the definition of abandonment outlined
at Tennessee Code Annotated section 36-1-102(1)(A)(iv).
Pursuant to that statutory definition, a parent's
parental rights may be terminated when:
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
Tenn. Code Ann. § 36-1-102(1)(A)(iv).
previously acknowledged that the above statute contains
"two distinct tests for abandonment" both of which
"apply only if a parent is incarcerated at or near the
time of the filing of the termination petition." In
re Audrey S., 182 S.W.3d at 865. The first test, which
itself contains alternative bases for abandonment, "asks
whether the parent 'has willfully failed to visit[, ] . .
. support[, ] or . . . make reasonable payments toward the
support of the child for four (4) consecutive months
immediately preceding such parent's . . .
incarceration.'" Id. (citing Tenn. Code
Ann. § 36-1-102(1)(A)(iv)). Although this test tracks
the language of the statutory definition of abandonment under
Tennessee Code Annotated § 36-1-102(1)(A)(i), it
"shifts the ...