IN RE RODERICK R. ET AL.
Assigned on Briefs February 2, 2018
from the Circuit Court for Sevier County No. 16-TM-2-II
Telford E. Forgety, Jr., Chancellor.
a termination of parental rights case. Upon the petition of
the Tennessee Department of Children's Services, the
trial court terminated the parental rights of both the mother
and father of two children. Clear and convincing evidence
supports each ground relied upon by the trial court and the
trial court's conclusion that termination of both
parents' parental rights is in the children's best
interest. Accordingly, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
Gregory E Bennett, Seymour, Tennessee, for the appellant
Rodrick R. Samantha A McCammon, Sevierville, Tennessee, for
the appellant, Elisabeth R.
Herbert H. Slattery, III, Attorney General and Reporter;
Brian A. Pierce Assistant Attorney General, for the appellee,
Tennessee Department of Children's Services.
L. Huddleston, Maryville, Tennessee, Guardian Ad Litem for
J.R. and R. R., appellees.
B. Goldin, J., delivered the opinion of the Court, in which
Andy D. Bennett and Thomas R. Frierson, II, JJ., joined.
B. GOLDIN, JUDGE
Background and Procedural History
appeal, we address the termination of the parental rights of
Elisabeth R. ("Mother") and Roderick R.
("Father") to their two minor children, J.R. (born
January 2010) and R.R. (born July 2008) (together, the
and Mother met in 2005 when they were both serving on active
duty in the military. In 2010, Mother and Father were married
and living in California where Mother was stationed at Camp
Pendleton. On April 6, 2010, Father was arrested
after bringing J.R. to the hospital with severe
injuries. Father pled guilty to three counts of
inflicting serious corporal injury upon J.R., and he was
sentenced to serve a total of six years in the California
Department of Corrections where he remained until his release
on July 17, 2015. Sometime after the April 6, 2010 incident,
Mother filed for divorce. As a result of the injuries
inflicted during the incident that led to Father's
convictions,  J.R. is permanently mentally handicapped,
mostly wheel-chair bound, and extremely limited in his
ability to speak.
December 2012, Mother was discharged from the military and
moved to Tennessee with the Children. The Tennessee
Department of Children's Services ("DCS") first
became involved with the Children in August 2014. Shortly
after midnight on August 6, 2014, Sergeant Rebecca Cowan of
the Sevierville Police Department was dispatched to
Mother's apartment building in response to a noise
complaint. Sergeant Cowan testified that when she arrived,
Mother was outside in the parking lot, and she was talking to
a ball, which she addressed as her "happy ball."
Mother appeared disoriented and was not wearing shoes. When
Sergeant Cowan approached Mother, she began yelling at the
officer and attempted to run away. Based upon Mother's
behavior, Sergeant Cowan testified that she decided to arrest
Mother for disorderly conduct. Once Mother was in the patrol car
and had been informed that she would be going to jail, Mother
told the officer that she could not leave because the
Children were in her apartment alone. According to Sergeant
Cowan, Mother refused to provide information identifying a
possible relative or friend to temporarily take care of the
Children. Mother continued to behave erratically, and
Sergeant Cowan decided to call EMS rather than taking Mother
directly to jail. EMS directed the officer to bring Mother to
the hospital for further evaluation, and DCS took the
Children into custody.
August 7, 2014, DCS filed a "Petition for Temporary
Legal Custody and Ex Parte Order, " seeking temporary
custody and requesting that the trial court adjudicate the
Children to be dependent and neglected. The petition averred
that Mother remained under observation due to mental health
concerns, but DCS had not yet been able to get in touch with
Mother. On August 8, 2014, the trial court entered an
emergency protective custody order, appointed a guardian ad
litem for the Children, and set a preliminary hearing date
for August 20, 2014. Mother did not appear at the preliminary
hearing,  but she was represented by counsel. The
trial court found probable cause that the Children were
dependent and neglected and determined that the Children
would remain in DCS's custody pending the adjudicatory
hearing scheduled to take place on October 29, 2014.
October 29, 2014, an adjudicatory hearing was
held. Mother appeared at the hearing and
stipulated that she had "ongoing mental health concerns
associated with PTSD from military service." The trial
court adjudicated the Children to be dependent and neglected
and ratified the permanency plan submitted by DCS with the
permanency goals of "return to parent" or
"exit custody to relative."
participated in the development of the initial permanency
plan. Among other things, the permanency plan directed Mother
to "identify and address all mental health needs [by
taking the following steps]: . . . (1) [Mother] will schedule
a mental health assessment with a parenting component at the
VA; (2) [Mother] will sign a release with the VA for DCS to
obtain a copy of the assessment and any recommendations; (3)
[Mother] will follow all recommendations from the
assessment." The permanency plan also directed Mother to
maintain safe and suitable housing, provide proof of legal
income, and attend all of the Children's doctor's
January 15, 2015, a dispositional hearing was held. The trial
court judge entered a no-contact order against Father. The
trial court also found that Mother was making progress, but
it determined that visitation would remain supervised. A
letter from a clinical psychologist employed by the VA was
filed with the trial court on January 15, 2015. The letter
indicated that Mother was participating in counseling for her
PTSD and taking her medications as prescribed.
March 6, 2015, Mother participated in the development of a
second permanency plan. On March 25, 2015, a permanency plan
hearing was held, and the trial court entered an order titled
"Permanency Hearing Order and Adjudication (adverse to
Father), " which ratified the second permanency plan.
The order also stated:
[p]rogress toward resolving the reasons the [children are] in
foster care has been made but the following barriers still
exist: Mother has to eliminate safety concerns from the home,
namely 1) secure firearms, 2) obtain suitable beds; and 3)
declutter the household.
court also noted that DCS was assisting Mother to achieve the
permanency plan goals by making home visits to Mother's
home and supervising those visits.
permanency plan was created on August 7, 2015, shortly before
the trial court approved a trial home placement. The
permanency plan directed Mother to continue taking her
medications as prescribed and attending her weekly support
group for PTSD. Because Mother appeared to be making progress
towards the permanency goals, on September 9, 2015, the
Children were returned to Mother's physical custody for a
ninety-day trial home placement. DCS retained legal custody.
November 23, 2015, DCS filed a "Motion and Notice
Disrupting Trial Home Placement." The motion averred
that events occurring on November 20, 2015 had compelled DCS
to disrupt the trial home placement and return the Children
to foster care. Specifically, DCS reported that Mother had
displayed bizarre behavior in public which had led to her
detention by military police, arrest, and involuntary
commitment to a VA hospital. The motion explained that,
"prior to [Mother's] arrest, [she] was observed at a
mall in Knoxville acting erratically. [Mother] was seen
speaking to a cat (as though it was a person); attempting to
drag the cat by a leash-clearly choking the cat." The
motion also reported that Mother had refused to allow DCS
personnel to enter Mother's apartment to retrieve
necessary medication and medical supplies for J.R. during her
January 13, 2016, a hearing was held and the trial court
entered a "Permanency Hearing Order and Preliminary
Hearing on Disruption of Trial Home Placement." Once
again, the trial court ordered Mother to execute a release
form so that DCS could access her VA medical and mental
health records. The trial court also added the permanency
goal of "adoption" and removed the permanency goal
of "return to parent" from the permanency plan.
Mother objected to the permanency goal changes and continued
to refuse to sign the necessary medical releases.
hearing on March 2, 2016, the trial court entered an
"Adjudicatory Order on Disruption of Trial Home
Placement." Mother stipulated that the trial home
placement disruption was for just cause, and the Children
were returned to foster care. Once more, the trial court
ordered Mother to sign the necessary medical release forms so
that DCS could obtain her health records from the VA.
Eventually, Mother executed the release forms, but DCS was
unable to obtain the VA records until November
March 3, 2016, DCS filed a petition to terminate Mother and
Father's parental rights on multiple grounds. DCS
retained a licensed clinical psychologist, Dr. Shannon
Wilson, and sought to have Mother evaluated prior to trial.
On July 14, 2016, the trial court entered an order titled,
"Motion and Order to Allow Access to Records and Comply
with Psychological Evaluation." Mother was ordered to
cooperate with Dr. Wilson in the evaluation and to sign all
necessary releases so that Dr. Wilson could access her
records. Mother was evaluated by Dr. Wilson over three days
in September and October of 2016; however, Dr. Wilson
testified that she was never provided Mother's VA
were held on February 9, 2017 and May 24, 2017. Three DCS
employees testified at the hearings: Seth Gilliam, Lynn
Eggers-Bentley, and Jan Gardner. Mother, Father,
Sergeant Cowan, and Ronald C., Mother's character
witness, also testified. DCS also submitted the depositional
testimony of Dr. Wilson. The trial court did not credit
Mother's testimony; however, the court placed "great
weight" on the opinion of Dr. Wilson.
Wilson testified that Mother's testing revealed she
"appears to be rather emotionally unstable and may
behave in negative, unpredictable, and aggressive ways."
Dr. Wilson found that Mother exhibited hostility and mistrust
towards authority figures, and she was unwilling to admit to
the existence of her problems. Dr. Wilson's analysis
indicated that Mother exhibited several symptoms associated
with post-traumatic stress disorder (PTSD), paranoid
personality disorder, borderline personality disorder, and
narcissistic personality. Ultimately, Dr. Wilson opined that
she was confident Mother's mental impairments rendered
her unable to serve as the Children's caregiver.
28, 2017, the trial court entered an order terminating
Mother's parental rights on the grounds of mental
incompetence, abandonment by failure to establish a suitable
home, and persistence of the conditions that led to the
Children's removal. The trial court terminated
Father's parental rights on the grounds of severe abuse
and incarceration for child abuse with a sentence of two
years or more. The trial court also concluded that there was
clear and convincing evidence that termination of both
parents' rights would be in the Children's best
interest. Mother and Father timely appealed.
presents four issues for our review, which we have restated
1. Whether the trial court erred in terminating Mother's
parental rights based upon the statutory ground of mental
2. Whether the trial court erred in terminating Mother's
parental rights based upon the statutory ground of
persistence of conditions.
3. Whether the trial court erred in terminating Mother's
parental rights based upon the statutory ground of
abandonment by failure to establish a suitable home.
4. Whether the trial court erred in determining that
termination of Mother's parental rights is in the best
interest of the Children.
Father presents three issues for our review, which we have
restated as follows:
1. Whether the trial court erred in terminating Father's
parental rights based upon the statutory ground of severe
2. Whether the trial court erred in terminating Father's
parental rights based upon the statutory ground of
imprisonment with a sentence of two years or more for abusive
conduct against a child.
3. Whether the trial court erred in determining that clear
and convincing evidence supports DCS's position that
termination of Father's parental rights is in the best
interest of the Children.
of Review in Termination Proceedings
the Tennessee and United States Constitutions protect a
parent's fundamental liberty interest in the care,
custody, and control of his or her children. Stanley v.
Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174 (Tenn. 1996); In re
Navada N., 498 S.W.3d 579, 590 (Tenn. Ct. App. May 23,
2016) (citations omitted). However, a parent's rights are
not absolute, and the State, as parens patriae, has
the authority to interfere when a compelling interest exists
to prevent serious harm to a child. Nash-Putnam, 921
S.W.2d at 174-75 (citing Santosky v. Kramer, 455
U.S. 745 (1982)).
setting forth specific grounds upon which termination
proceedings may be initiated, our termination statutes
identify the circumstances which indicate that the
State's compelling interest in the welfare of a child may
justify termination of a parent's constitutionally
protected rights. In re Navada N., 498 S.W.3d at
590. Thus, when DCS seeks to terminate a biological
parent's rights to his or her child, it must prove two
things. In re Audrey S., 182 S.W.3d 838, 860 (Tenn.
Ct. App. Nov. 7, 2005). First, DCS must prove the existence
of at least one of the statutory grounds for termination.
Tenn. Code Ann. § 36-1-113(c)(1); In re Audrey
S., 182 S.W.3d at 860. Second, DCS must prove that
termination of the biological parent's rights is in the
child's best interest. Tenn. Code Ann. §
36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860.
civil action carries with it graver consequences than a
petition to sever family ties irretrievably and
forever." In re Audrey S., 182 S.W.3d at 860
(citation omitted). In light of these profound repercussions,
Tennessee courts impose a heightened standard of proof-clear
and convincing evidence-in the biological parent's favor.
See Tenn. Code Ann. § 36-1-113(c)(1); In re
Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016). Both
the grounds for termination and the best-interest conclusion
must be established by clear and convincing evidence. See
In re Carrington H., 483 S.W.3d at 523 ("The best
interest analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of
grounds for termination."); In re Navada N.,
498 S.W.3d at 590. "These requirements ensure that each
parent receives the constitutionally required
'individualized determination that a parent is either
unfit or will cause substantial harm to his or her child
before the fundamental right to the care and custody of the
child can be taken away.'" In re Carrington
H., 483 S.W.3d at 523 (quoting In re Swanson, 2
S.W.3d 180, 188 (Tenn. 1999)). 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." Id. (quoting In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)).
"Such evidence 'produces in a fact-finder's mind
a firm belief or conviction regarding the truth of the facts
sought to be established.'" Id.
heightened burden of proof in termination of parental rights
cases also requires this Court to adapt the customary
standard of review that we typically apply in an appeal from
a bench trial. See Tenn. R. App. P. 13(d); In re
Audrey S., 182 S.W.3d at 861. First, we must review the
trial court's factual findings de novo on the
record, presuming the trial court's factual findings to
be correct. See Tenn. R. App. P. 13(d); In re
Audrey S., 182 S.W.3d at 861. "Second, we must
determine whether the facts either as found by the trial
court or as supported by the preponderance of the evidence,
clearly and convincingly establish the elements required to
terminate a biological parent's parental rights."
See In re Audrey S., 182 S.W.3d at 861 (citations
a trial court judge is able to observe the witnesses, their
manner, and their demeanor when testifying, the trial judge
is far better situated than we are to make credibility
determinations. In re Navada N., 498 S.W.3d at 591
(citations omitted). Accordingly, when the resolution of an
issue in a case depends upon the truthfulness of ...