Assigned on Briefs May 1, 2017
from the Juvenile Court for Claiborne County Nos.
2012-JV-1106, 2015-JV-1560, 2016-JV-1701 Robert M. Estep,
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.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed in Part, Reversed in Part, and Remanded
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.
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
D. Bennett, J., delivered the opinion of the Court, in which
Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
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.
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
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
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
Department requested that the children be taken into its
custody and that they be found dependent and neglected at a
final hearing. A hearing was held on May 14, 2014, and
the juvenile court entered an order on June 16, 2014 finding
the children dependent and neglected.
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
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.
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."
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 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).
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)).
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.
Grounds For Termination
Abandonment by failure to visit prior to filing of
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 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.
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.
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.
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.
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,  but he stated that he had
trouble paying the "couple of dollars" required to
use the service.
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.
Abandonment by failure to support prior to filing of
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.
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
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 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.
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).
therefore, reverse the trial court's termination of
Shawn's H.'s parental rights on the ground of willful
failure to support.
Abandonment by failure to visit prior to
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
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 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
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.
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?
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.
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
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
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
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.
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).
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.
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.
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.
Abandonment by failure to support prior ...