Session August 18, 2016
from the Juvenile Court for Montgomery County No. 151290,
151291 Timothy K. Barnes, Judge
Department of Children's Services received custody of two
children as a result of a petition it filed to have the
children declared dependent and neglected; the children's
mother had died, and they were unable to be placed with their
father due to uncertainty regarding his paternity of the
children and housing arrangement. After custody was granted
to the Department and a permanency plan developed, the father
established his paternity; the permanency plan required that
he continue to address his housing and employment situations,
among other matters. Eleven months after the children came
into custody, the Department filed a petition to terminate
Father's rights on the grounds of abandonment by failure
to visit or support, abandonment by failure to provide a
suitable home, substantial noncompliance with the permanency
plan, and persistence of conditions. After a trial, the court
found that clear and convincing evidence existed as to all
grounds and that termination was in the best interest of the
children. Father appeals, contending that the evidence
preponderates against various findings of the court, that the
evidence does not support a conclusion that any of the
grounds were established, or that termination is in the
children's best interest. Inasmuch as the children were
not removed from the Father's home at the time they came
into the Department's custody, we reverse the judgment
terminating the Father's rights on the grounds of
persistence of conditions and abandonment by failure to
provide a suitable home; in all other respects, the judgment
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Reversed in Part and Affirmed in Part; Case Remanded
R. Dahl, Clarksville, Tennessee, for the appellant, Raymond
S. A., Sr.
Herbert H. Slatery, III, Attorney General and Reporter; Brian
A. Pierce, Assistant Attorney General, for the appellee,
Tennessee Department of Children's Services.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.
RICHARD H. DINKINS, JUDGE.
Factual and Procedural History
an appeal from the termination of Raymond A.'s
("Father") rights to his two children: Promise A.,
born September 2007, and Raymond A. Jr. born June 2008. The
Department of Children's Services ("DCS")
became involved in May 2014, when it received a referral that
the children's mother had been hospitalized and, as a
result, the children were unsupervised. On May 23 the
children's mother passed away; that same day DCS filed a
Petition to Adjudicate Dependency and Neglect. Pertinent to
the instant appeal, the petition alleged:
The father to the two younger children is [Father] and he
lives in Clarksville, Tennessee. It is unknown where the
father lives, but it was reported he lives in a motel.
[Father] reported that he was the father of Raymond Jr. and
Promise. . . . [Father] stated that he was not in a
relationship with [Mother], but he visited the children every
other weekend. He reported seeing the children a month ago.
[Father] stated there was no court order for visitation.
[Father] reported that he moved to Clarksville, TN from Texas
along with [Mother] and the children. He reported that he
currently is staying with a friend and does not have a place
of his own. . . .
[Father] admitted to past prescription drug use, but denied
current use. [Father] consented to a drug screen and tested
negative for all substances tested for. [Father] admitted to
past prescription drug use, but denied current use. . . .
CPSA Williams contacted Texas Department of Family and
Protective Services. Tamala with DFPS reported that [ ] was
listed as being the father of [ ]; [Father] was listed as
being the father of Raymond A. and that the father of Promise
was not listed.
[Mother's sister] stated that [Father] was good with
children, but that he was not capable of providing for the
children financially. She reported that [Mother] stated to
her that [Father] was not the biological father of any of the
children. She reported that according to [Mother], [Father]
was aware that he was not the children's biological
father. She reported that [Mother] stated that [Father]
signed both Promise and Raymond Jr's birth certificate
but she was not aware if this was true. She reported that . .
. Promise and Raymond's father's name is Chris.
[Father] reported that [Mother] . . . advised that he was not
biological father of Promise. [Father] reported hearing in
the past that he was not the biological father of Promise.
[Father] asked the worker if he was able to take a paternity
test to determine paternity.
CPSA attempted to obtain the birth certificate of Promise and
Raymond. [Father] nor any of the other family members were
able to provide the department with definitive proof who the
legal father of any children [sic] is. Due to all three
children left without a caretaker, DCS placed them in
protective custody order was entered placing the children in
the custody of DCS and setting a preliminary hearing on the
petition for May 27. On October 2, 2014, a hearing was held on
the dependent and neglect petition; the court found clear and
convincing evidence that the children were dependent and
neglected and continued custody with DCS.
first permanency plan was developed on June 20, 2014; the
first permanency goal, with a target date of December 8, was
"return to parent, " and the secondary goal was
"exit custody with relative." The plan, inter
alia, required Father to pay support for and attend all
scheduled visits with the children; have a drug and alcohol
assessment and comply with any recommendations; be subject to
twice-monthly drug screens; demonstrate an ability to provide
the children with a safe home environment and meet their
basic, physical, and medical needs; have a legal source of
income; and complete a paternity test. A second permanency
plan was completed on October 22; the plan continued many of
the requirements of the first plan, maintained the primary
goal of return to parent, and changed the secondary goal to
adoption. The second plan modified the first by adding the
requirements that Father implement the recommendations from
the alcohol and drug assessment he took, complete a
psychiatric intake and assessment and random drug screens,
and that he participate in the Parenting Education class
through Family Support Services.
filed a petition to terminate Father's rights on April 9,
2015, alleging as grounds: persistence of conditions pursuant
to Tennessee Code Annotated section 36-1-113(g)(3);
abandonment by failure to visit, support, or to establish a
suitable home pursuant to section 36-1-113(g)(1); and
substantial non-compliance with permanency plans pursuant to
section 36-1-113(g)(2). The petition also alleged that
termination was in the children's best interest. Father
was appointed counsel, and a guardian ad litem was
hearing was held over two days in September 2015, at which
DCS family service worker Lawanna Hassan, the children's
foster father, and Father testified. At the completion of the
hearing, the court stated its factual findings and that
termination of Father's parental rights was in the best
interest of the children, and terminated his rights on the
grounds of failure to visit or support, persistence of
conditions, substantial noncompliance with the permanency
plans, and failure to establish a suitable home; an order was
entered on February 4, 2016, memorializing the oral ruling.
Father appeals, articulating the following issues for our
1. Whether there is clear and convincing evidence to support
the termination of parental rights on any of the grounds
enumerated, specifically whether there is clear and
convincing evidence of substantial noncompliance with the
permanency plan, abandonment by failure to provide a suitable
home, abandonment by failure to visit and support, or
persistence of conditions.
2. Whether there is clear and convincing evidence to support
that termination of the Father's parental rights was in
the best interests of the minor children.
3. Whether the Father's lack of counsel in the dependency
and neglect adjudicatory hearing, which directly preceded the
termination of parental rights proceeding, violated the
Father's right to due process, as due process requires
States to provide parents with fundamentally fair procedures.
4. Whether the Department of Children's Services provided
reasonable efforts to reunify the children with their Father.
Standard of Review
have a fundamental right to the care, custody, and control of
their children. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Adoption of A.M.H., 215 S.W.3d
793, 809 (Tenn. 2007). However, that right is not absolute
and may be terminated in certain circumstances. Santosky
v. Kramer, 455 U.S. 745, 753-54 (1982); State
Dep't of Children's Services v. C.H.K., 154
S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for
a court to terminate a parent's rights. Osborn v.
Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental
rights may be terminated only where a statutorily defined
ground exists. Tenn. Code Ann.§ 36-1-113(c)(1);
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002);
In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App.
1998). To support the termination of parental rights, only
one ground need be proved, so long as it is proved by clear
and convincing evidence. In the Matter of D.L.B.,
118 S.W.3d 360, 367 (Tenn. 2003).
the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts
must apply a higher standard of proof when adjudicating
termination cases. Santosky, 455 U.S. at 766-69. A
court may terminate a person's parental rights only if
(1) the existence of at least one statutory ground is proved
by clear and convincing evidence and (2) it is shown, also by
clear and convincing evidence that termination of the
parent's rights is in the best interest of the child.
Tenn. Code Ann. § 36-1-113(c); In re Adoption of
A.M.H., 215 S.W.3d at 808-09; In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened
standard of proof in these cases, a reviewing court must
adapt the customary standard of review set forth by Tenn. R.
App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654
(Tenn. Ct. App. 2004). As to the court's
findings of fact, our review is de novo with a
presumption of correctness unless the evidence preponderates
otherwise, in accordance with Tenn. R. App. P. 13(d).
Id. We must then determine whether the facts,
"as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly
establish the elements" necessary to terminate parental
Grounds for Termination
trial court found that the following statutory grounds for
termination were established: abandonment by failure to
visit, failure to support, and failure to provide a suitable
home; that the conditions which led to the children's
coming into DCS custody persisted; and that Father was in
substantial noncompliance with the permanency plans. Father
challenges the court's holdings with respect to each
ground for termination.
Substantial Noncompliance ...