Assigned on Briefs December 2, 2016
from the Juvenile Court for Knox County No. 62197 Timothy E.
appeal involves the termination of a mother's parental
rights. The Tennessee Department of Children's Services
("DCS") removed the child at issue from the
mother's home prior to his first birthday. Four months
later, DCS filed a petition to terminate the mother's
parental rights. The juvenile court found clear and
convincing evidence of two grounds for termination and that
termination of the mother's parental rights was in the
child's best interest. We, however, conclude that DCS did
not prove by clear and convincing evidence that the mother
abandoned the child by willful failure to support. Because
the record contains clear and convincing evidence of the
remaining ground- abandonment by willful failure to visit-and
that termination was in the best interest of the child, we
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
L. Ward, Knoxville, Tennessee, for the appellant, Chivas K.
Herbert H. Slatery III, Attorney General and Reporter, and M.
Cameron Himes, Assistant Attorney General, for the appellee,
Tennessee Department of Children's Services.
Neal McBrayer, J., delivered the opinion of the court, in
which John W. McClarty and Brandon O. Gibson, JJ., joined.
NEAL McBRAYER, JUDGE
Factual and Procedural Background
K. ("Mother") and Jonathan C. ("Father")
are the biological parents of Lynx C., born in November 2014.
At birth, Lynx was diagnosed with Neonatal Abstinence
Syndrome, a medical condition caused by exposure to addictive
opiate drugs while in utero. Lynx spent 28 days in the
neonatal intensive care unit while being treated for
withdrawal symptoms. Because Mother had complied with a
Suboxone program during her pregnancy, Lynx left
the hospital in Mother's care.
his condition, multiple follow-up appointments with a
pediatrician were scheduled for Lynx; however, Mother did not
keep the appointments. By October 2015, DCS received word
that Lynx had missed four scheduled appointments with his
pediatrician without explanation and that Mother had
cancelled ten additional appointments. Following the report,
DCS investigators attempted, unsuccessfully, to contact
Mother and Lynx. As a result, DCS petitioned the Juvenile
Court of Knox County, Tennessee for an ex parte order
allowing DCS to enter Mother's home and conduct an
investigation into the child's circumstances.
court granted the ex parte protective order finding probable
cause to believe Lynx was dependent and neglected due to
medical neglect. DCS then removed the child from Mother's
home on November 10, 2015, just before his first birthday.
Mother was given a copy of the protective order and notice of
the preliminary hearing two days later. That same day, DCS
filed a petition in the Juvenile Court of Knox County,
Tennessee to declare the child dependent and neglected and
for emergency temporary legal custody. Both Mother and Father
failed to appear at the preliminary hearing on the matter. On
January 26, 2016, the juvenile court heard the petition, and
on March 4, 2016, the court issued a final order adjudicating
Lynx dependent and neglected.
March 21, 2016, DCS filed a petition to terminate
Mother's parental rights to Lynx. DCS alleged three grounds
for termination, including abandonment by willful failure to
support, by willful failure to visit, and by failure to
provide a suitable home. The juvenile court held a hearing on
the petition on July 26, 2016. Mother, Father, the DCS
caseworker assigned to Lynx's case, and the child's
foster parent testified.
caseworker testified that, following the child's removal,
she attempted to locate Mother for months to no avail.
Despite DCS efforts, Mother did not contact the caseworker
until February 17, 2016, over three months after Lynx was
removed from her home. That day, Mother left the caseworker a
voice message asking to set up a visit with Lynx, but when
the caseworker attempted to return Mother's call, she
could not be reached.
caseworker testified that she attempted to contact mother at
least three or four times without response in the days
following Mother's call. Two weeks later, on March 3,
2016, Mother contacted DCS for the second time. Mother spoke
with the caseworker and asked for guidance on regaining
custody. The DCS caseworker testified that she reminded
Mother of the responsibilities in the permanency plan by
phone and provided her contact information to obtain an
alcohol and drug assessment. Mother assured the caseworker
that she would call back the following Monday to set up a
meeting with DCS, but according to the caseworker, Mother
made no further contact with DCS until March 29, 2016, after
she was served with the petition to terminate her parental
caseworker further testified that Mother failed to attend a
scheduled appointment with DCS in April 2016, after which DCS
was again unable to locate Mother for a time. On May 2, 2016,
Mother showed up unexpectedly at DCS's offices to speak
with the caseworker. Mother indicated that she had received
the caseworker's messages and that she was still living
in the same apartment in Knoxville, Tennessee where she had
resided since Lynx's removal. According to the
caseworker, Mother visited her child for the first time on
July 1, 2016. She was permitted two additional visits before
the hearing on the petition.
also offered testimony concerning her failure to keep in
contact with DCS. She testified that she did not attempt to
contact DCS before February 2016 because she had relapsed on
opiates after Lynx's removal from her home. She explained
that she was afraid for DCS to learn of her relapse. Prior to
the present case involving Lynx, DCS removed Mother's
older son from her care. Though Mother is permitted to visit
her first child, he is in the custody of her mother-the
child's maternal grandmother. Mother expressed her fear
that she would lose her second child as well if DCS knew that
she had relapsed. Mother claimed that she participated in
drug treatment in April 2016, but she failed to provide
documentation of such treatment. She also failed to inform
DCS of the claimed treatment.
her employment, Mother testified that she worked at a Pilot
convenience store from January 2016 to April 2016. According
to Mother, she was unemployed at the time of the hearing but
actively looking for work. The record does ...