Assigned on Briefs November 1, 2016
from the Juvenile Court for Cumberland County No.
2015-JV-5238 Larry Michael Warner, Judge
appeal involves the termination of a mother's parental
rights to six children and a father's parental rights to
three of those children. The juvenile court found clear and
convincing evidence of five grounds for termination of
parental rights and that termination of parental rights was
in the children's best interest. We conclude that DCS did
not prove abandonment by an incarcerated parent by clear and
convincing evidence. Because the record contains clear and
convincing evidence to support four grounds for termination,
namely, abandonment by failure to provide a suitable home,
substantial noncompliance with the requirements of the
permanency plan, persistence of conditions, and severe child
abuse, and that termination is in the best interest of the
children, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Cynthia Fields Davis, Crossville, Tennessee, for the
appellant, Brandie V.
Jeffrey A. Vires, Crossville, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter, and
Brian A. Pierce, 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
V. ("Mother") is the mother of six children, Kayla,
Jaden, Ashton, Isabella, Jace, and Korie. The children range
in age from three to twelve. Allen S. ("Father") is
the father of the three youngest children, Isabella, Jace,
and Korie. On February 11, 2015, acting on a report of
environmental neglect, the Tennessee Department of
Children's Services ("DCS") sent a case manager
to Mother and Father's home to investigate.
investigation revealed a home unfit for human habitation. The
case manager observed piles of trash, empty propane cans, and
broken glass in the yard. The contents from a malfunctioning
toilet flowed directly into the yard. The front door of the
home was broken, allowing cold air to enter. The floor
directly inside the home's entrance was badly
deteriorated, and a large hole had formed.
interior of the home was also dirty and unsafe, filled with
used batteries, dirty dishes and clothes, trash, and more
empty propane cans. Dirty diapers were scattered throughout
the home. The home lacked running water and electricity, and
a propane heater was being used near flammable objects.
Tobacco products were in easy reach of the children.
the state of the children reflected the home. The children
case manager administered drug screens to the parents.
Mother's test showed negative, but Father's test
showed positive for methadone.
case manager informed the parents that the home was unsafe.
Mother and Father agreed to move the children to a hotel
temporarily so that they could eliminate the safety hazards.
The next day, however, after discovering that the parents and
the children had remained in the home, DCS filed an emergency
petition seeking temporary protective custody of the
Juvenile Court for Cumberland County, Tennessee, entered a
protective custody order granting temporary legal custody of
the children to DCS on February 12, 2015. After a preliminary
hearing, the court found probable cause to believe that the
children were dependent and neglected. At the adjudicatory
hearing on April 24, 2015, Mother and Father stipulated that
the children were dependent and neglected and further
stipulated to the facts alleged in DCS's emergency
petition. Consequently, the court found that DCS had proven
by clear and convincing evidence that the children were
dependent and neglected.
October 5, 2015, DCS filed a petition to terminate the
parental rights of both Mother and Father. The petition
alleged abandonment by failure to establish a suitable home,
abandonment by an incarcerated parent, substantial
noncompliance with the requirements of the permanency plans,
severe child abuse, and persistent conditions that prevented
the children from being returned to the parents' custody.
On February 17, 2016, the court held a hearing on DCS's
petition to terminate parental rights.
Proof at the Hearing
2012 Dependency and Neglect Case
was not DCS's first encounter with this family. On March
30, 2012, DCS received a report of prenatal drug exposure
when Mother gave birth to twins, Jace and Korie. Upon
admission to the hospital, Mother tested positive for
benzodiazepines, opiates, and THC. At birth, Jace tested
positive for opiates, and Korie tested positive for opiates
and benzodiazepines. The family was living in a hotel, having
recently been evicted for not paying rent. The children were
placed in the protective custody of DCS on April 1, 2012. On
September 24, 2012, the Juvenile Court for Cumberland County,
Tennessee, adjudicated all six children dependent and
neglected and further found that Jace and Korie were the
victims of severe child abuse perpetrated by Mother and
Father "due to mother's pre-natal drug use and the
father's knowledge of that pre-natal drug use and failing
to stop or attempt to stop the pre-natal drug abuse."
parents cooperated fully with DCS and freely admitted their
struggles with substance abuse. The parents obtained alcohol
and drug assessments and followed the recommendations for
inpatient substance abuse treatment. During the course of
treatment, Mother learned that she was a "binge user,
" in that she was able to maintain sobriety for a period
of time and then would relapse after a triggering event.
Father obtained a psychological evaluation and received
appropriate mental health treatment.
24, 2013, the parents had obtained new housing and addressed
their substance abuse and mental health issues. After
approving the condition of the new home, DCS allowed the
three oldest children to return to the parents for a trial
home visit. In August, however, Mother suffered a relapse,
which necessitated additional treatment and supervision and
slowed the return of the remaining children.
February 8, 2014, because the parents had fulfilled their
responsibilities in the permanency plan, the court returned
custody of all six children to the parents. Unfortunately,
one year later, the juvenile court again removed the children
from their parents' custody based on the deplorable
condition of the home and concerns about the parents'
2015 Dependency and Neglect Case
with the participation of the parents, developed a new
permanency plan on March 2, 2015, with the twin goals of
return to parent and adoption. The 2015 plan identified four
areas of concern and directed the parents to take specific
actions to meet those concerns. First, because of the
parents' history of drug abuse, the plan required the
parents to submit to an alcohol and drug assessment and
follow all recommendations, refrain from associating with
drug abusers, and submit to random drug screens. Second, to
ensure a safe and suitable home for the children, the plan
directed the parents to obtain a legal means of support,
develop a budget, obtain appropriate housing, demonstrate the
ability to maintain a safe and clean home, and allow monthly
home visits. Third, because Mother and Father had disclosed
potential mental health issues, the plan required the parents
to obtain psychological evaluations and follow all
recommendations. Finally, Mother and Father were directed to
pay child support, visit their children, and complete
parenting classes after the other plan requirements were met
because of their pattern of poor parenting skills.
explaining the plan requirements and the criteria for
termination of parental rights to the parents, the case
manager attempted to help them fulfill their
responsibilities. She set up phone calls and visitation with
the children. She showed them the hazardous conditions in the
home that needed to be remedied. She provided information for
the parents to schedule alcohol and drug assessments and
psychological evaluations. She also discussed applying for
public housing and developing a budget. She provided both gas
cards and actual transportation. She administered numerous
random drug screens and supervised visitation with the
children. As the case progressed, she reminded the parents of
their responsibilities and offered continued assistance.
February and July, however, the parents made little progress.
They did not remedy the safety concerns in the home, obtain
appropriate alcohol and drug assessments,  or complete
psychological evaluations. Father failed drug screens in
March and April. Mother also failed her April drug screen,
was arrested for shoplifting, and spent nine days in jail.
was incarcerated a second time on May 16, and remained in
jail until mid-October. Father was incarcerated for probation
violations for ten days in May and from June 19 until July
22. By July, neither parent had paid any child support, and
Father pled guilty to three counts of criminal contempt for
his failure to pay.
court held a review hearing on July 24, 2015, making the
obstacles to reunification apparent. The parents stipulated
[Mother] is presently incarcerated. [Father] was recently
incarcerated on a [probation violation]. [Father] failed his
hair follicle this month for methamphetamine, oxycodone, and
THC. [Mother] was clean on her most recent hair follicle, but
she has been incarcerated since May and admitted to using
suboxone and THC prior to her incarceration. Their home
currently has no water or electricity, and the outside of the
home has not been cleaned.
parents failed the drug screens administered on the day of
the hearing. In late July, the parents' home and
all its contents were destroyed in a fire. Fortunately,
neither parent lived in the home at the time.
the July hearing, Father found employment with an excavation
company and subsequently made three child support payments:
$30 in August, $45 in September, and $15 in November. He
failed another drug screen in August, but he passed his drug
screen in November. The case manager testified that Father
had been unavailable for drug screens since November. By
February 2016, Father had not obtained an alcohol and drug
assessment or received any treatment for substance abuse.
completed a substance abuse program while in jail and passed
a drug screen when she was released in mid-October. She also
submitted to a second alcohol and drug assessment but never
obtained the results or learned the recommendations. In
December, Mother tested positive for oxycodone without a
prescription. She completed a psychological evaluation in
January, which indicated that she was at high risk for a
relapse. Mother never obtained steady employment; she worked
for a short time for "the Villa" and cleaned a few
and Father moved into a new rental home in January 2016. Both
parents claimed that their new home would be safe and
appropriate for the children. The case manager, however,
testified that, although she had attempted one or two random
home visits, the parents were never home when ...