In re NASHAY B. et al.
Assigned on Briefs August 1, 2017
from the Juvenile Court for Montgomery County No.
MC-JV-TP-CV-16-JV-536, MC-JV-TP-CV-16-JV-537 Timothy Barnes,
mother appeals the termination of her parental rights to her
two children. The juvenile court found three statutory
grounds for termination of parental rights: abandonment by
failure to support, abandonment by failure to provide a
suitable home, and persistence of conditions. The juvenile
court also found that termination of the mother's
parental rights was in the children's best interest. We
conclude that the evidence was less than clear and convincing
that the mother abandoned the children by failure to support.
But the record contains clear and convincing evidence to
support the other grounds for termination and that
termination is in the children's best interest. Thus, we
affirm the termination of the mother's parental rights.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed as Modified
Gregory D. Smith, Clarksville, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter, and
Ellison M. Berryhill, 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 Arnold B. Goldin, JJ., joined.
NEAL McBRAYER, JUDGE
Factual &Procedural History
C. ("Mother") is the mother of Nashay B., born in
December 2008, and Damon B., born in July 2010. On April 24,
2013, acting on a report of lack of supervision, the
Tennessee Department of Children's Services
("DCS") sent a case worker to Mother's home to
investigation revealed that Mother and the children had moved
to Tennessee from Missouri. Mother lived in a two bedroom
apartment. The apartment was also the home of Mother's
boyfriend and his brother. Mother, her boyfriend, and the two
children all slept in one of the bedrooms. Mother, who was
unemployed at the time, stated that she was unable to care
for the children because of her rheumatoid arthritis and
bipolar disorder. Mother also complained that, since
relocating to Tennessee, she had been unable to obtain
medication for her medical conditions.
told the case worker that she felt like it was in her
children's best interest that they be placed in state
custody. DCS developed a plan to put services in the home and
contacted family members, but Mother's family was
unwilling to help.
next day, DCS received a second referral concerning Mother.
While seeking treatment at a medical clinic, Mother expressed
her wish to commit suicide. As a result, she was transferred
to a mental facility. Before she left, Mother informed the
clinic that she had placed the children in the care of a
neighbor whom she barely knew.
April 29, 2013, DCS filed a petition seeking temporary
protective custody of the children. The Juvenile Court of
Montgomery County, Tennessee, entered a protective custody
order granting temporary legal custody of the children to DCS
"as of April 25, 2013." At the subsequent
adjudicatory hearing, Mother waived her right to a hearing
and stipulated that the children were dependent and
neglected. And the juvenile court ordered that the children
remain in the custody of DCS.
and DCS developed three permanency plans between May 2013 and
October 2015. Among other things, the first plan required
Mother to make voluntary child support payments, obtain
appropriate housing, and seek treatment for her medical and
mental conditions. The second permanency plan added the
requirement that Mother visit with the children. The third
permanency plan clarified that Mother's support
obligation was $25 per month.
5, 2016, DCS filed a petition to terminate Mother's
parental rights. The petition alleged abandonment by
failure to visit, abandonment by failure to support,
abandonment by failure to provide a suitable home, and
persistent conditions that prevented the children from being
returned to Mother's custody.
November 17, 2016, the juvenile court held a hearing on
DCS's petition. A DCS caseworker and Mother were the only
witnesses. At the time, Mother was staying at a women's
shelter in Nashville, where she had been for the previous
four to five months. Prior to that, she stayed at the YWCA,
which had a transitional housing program. According to
Mother, she could not participate in that program because she
was not employed.
had worked on several occasions since the removal of her
children. But testimony revealed that her longest period of
employment was only five months. Mother claimed her inability
to maintain employment was due to her physical health. She
last worked approximately two months prior to the hearing.
Ultimately, she left the job due to her arthritis. Mother had
applied for social security disability benefits, but despite
her health issues, she was denied.
admitted to being diagnosed with bipolar disorder. And she
claimed to have received both medical and mental health
treatment since removal of her children, a fact DCS could not
verify. Mother conceded that she had not provided DCS with
her records or executed a release to allow DCS access to her
protected health information. The caseworker testified that
Mother had not consistently followed the recommendations of
explained that she was not in active treatment as of the date
of trial for her mental health issues because she had lost
her job and insurance. According to her, she had three
months' worth of medication that she could take until she
could be seen again. Mother testified that her psychiatrist,
whose name she could not initially recall, would provide her
with free samples when she could not afford her prescription
medication. Mother acknowledged going periods as long as two
months without taking her medication.
Juvenile Court's Ruling
March 7, 2017, the trial court entered an order terminating
Mother's parental rights to the children. The court found
that DCS failed to prove the ground of abandonment by willful
failure to visit. But the court found termination was
appropriate based on the grounds of abandonment by failure to
support, abandonment for failure to provide a suitable home,
and persistence of conditions. The court also found that
termination was in the children's best interest.
parent has a fundamental right, based in both the federal and
State constitutions, to the care and custody 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); In re Adoption of Female Child,
896 S.W.2d 546, 547-48 (Tenn. 1995). But parental rights are
not absolute. In re Angela E., 303 S.W.3d at 250.
Our Legislature has identified those situations in which the
State's interest in the welfare of a child justifies
interference with a parent's constitutional rights by
setting forth the grounds upon which termination proceedings
may be brought. See Tenn. Code Ann. §
Code Annotated § 36-1-113 sets forth both the grounds
and procedures for terminating parental rights. In re
Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015). First,
parties seeking termination of parental rights must prove the
existence of at least one of the statutory grounds for
termination listed in Tennessee Code Annotated §
36-1-113(g). Tenn. Code Ann. § 36-1-113(c)(1). Second,