Session February 21, 2018
from the Chancery Court for Carroll County No. 2015-AA-190
Carma Dennis McGee, Chancellor
appeal arises from a Petition to Terminate Parental Rights
filed by the foster parents. The Department of Children's
Services removed the child from the mother and father's
custody and placed the child in the custody of the foster
parents because, shortly after the child was born, the child
tested positive for drugs. On the petition of DCS, the
juvenile court adjudicated the child dependent and neglected
based on the finding that the parents committed severe child
abuse. Thereafter, DCS filed a Petition to Terminate Parental
Rights based, in part, on the records provided by the case
worker. Subsequently, DCS determined that the case worker had
falsely reported that the parents were noncompliant with the
permanency plan. Following an inquiry that revealed the
parents were in substantial compliance with the permanency
plan and that all drug tests were negative, DCS dismissed its
petition with court approval. Thereafter, the foster parents
commenced a new and independent action to terminate mother
and father's parental rights; the petition also named DCS
as a respondent. The foster parents subsequently filed a
motion to compel joinder of DCS as a co-petitioner on the
ground that Tenn. Code Ann. § 36-1-113(h)(1)(D) mandated
that DCS file a petition to terminate parental rights if a
juvenile court has made a finding that the parents committed
severe child abuse. DCS opposed the motion on the ground that
it had the discretion not to pursue termination of parental
rights if a compelling reason existed. The trial court denied
the motion, and the case proceeded to trial on the foster
parents' petition. Following trial, the court found that
the foster parents proved severe child abuse by clear and
convincing evidence; however, the court determined that
termination of the parents' rights was not in the
child's best interests and dismissed the petition. This
appeal followed. Having determined that the foster parents
failed to prove by clear and convincing evidence that
termination of the parents' rights was in the child's
best interests, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
A. Keeton, Huntingdon, Tennessee, for the appellants, Charles
A. and Misha A.
A. Cox, Paris, Tennessee, for the appellee, Vicky B.
W. Hawley, Paris, Tennessee, for the appellee, Steven P.
Jasmine McMackins, Paris, Tennessee, Guardian Ad Litem.
Herbert H. Slatery, III, Attorney General and Reporter; W.
Derek Green, Assistant Attorney General, for the Tennessee
Department of Children's Services.
G. Clement Jr., P.J., M.S., delivered the opinion of the
court, in which J. Steven Stafford, P.J., W.S., and Brandon
O. Gibson, J., joined.
G. CLEMENT JR., P.J., M.S.
P. was born seven weeks premature in May 2014, to Vicki B.
("Mother") and Steven P. ("Father")
(collectively, "Parents"). Zayne tested positive
for opiates and methamphetamines at birth, and on May 30, the
Tennessee Department of Children's Services
("DCS") gained temporary custody with physical
custody given to foster parents, Charles A. ("Foster
Father") and Misha A. ("Foster Mother") who
are the petitioners in this proceeding. A permanency plan was
developed and signed by Parents on June 19, 2014, and
subsequently ratified by the court; it was revised and signed
by Parents on October 16 and ratified by the court on
November 19. In an order entered on December 10, 2014, the
Henry County Juvenile Court found that Parents had committed
severe child abuse by exposing Zayne prenatally to drugs.
Zayne was also adjudicated dependent and neglected and has
remained with the foster parents.
noted in the October permanency plan that Mother and Father
each had a long history of substance abuse. Therefore, the
plan required Parents to submit to random drug screens,
attend alcohol and drug counseling at Carey Counseling, and
to continue counseling and Suboxone treatment at Behavioral
Health Group (BHG). The desired outcome was that Parents
would maintain their sobriety long-term. Parents were to
comply with BHG's protocol, which included decreasing
their Suboxone use until they were substance free.
also noted in the permanency plan that Mother and
Father's home was an environmental concern with regard to
animals, fleas, and lack of cleanliness. The plan required
parents to provide a clean environment with working utilities
and to submit to a parenting assessment and counseling
services to assist Parents with parenting skills. As of
October 2014, Parents received in-home services from Youth
Villages to address the foregoing issues.
Zayne was born premature and tested positive for several
drugs, the permanency plan addressed Zayne's medical
needs. It required that the Tennessee Early Intervention
System ("TEIS") evaluate Zayne for developmental
delay. It also mandated that Parents and the foster parents
cooperate with Zayne's medical providers and follow
through with TEIS and all other medical appointments.
goal of the June permanency plan was "return to
parent/exit custody with kin." In October, the goal of
the permanency plan was amended so that Zayne would
"retain permanency through adoption." Accordingly,
DCS filed a Petition to Terminate Parental Rights on January
12, 2015. Thereafter, the permanency plan was updated in
January 2015 and then, again, in April 2015 with the same
desired outcomes and goals.
interim, a DCS supervisor, Bret Brooks, conducted an internal
review of Zayne's DCS file and determined that a DCS case
worker had falsely reported that Parents were noncompliant
with the permanency plan. Conversely and significantly, Ms.
Brooks determined that Mother and Father had made substantial
progress toward meeting their goals on the permanency plan;
specifically, that all drug tests had been negative, and
Parents were now providing a safe environment. Based on these
findings, Ms. Brooks concluded that DCS did not have a basis
upon which to pursue the petition to terminate Parents'
thereafter, on June 4, 2015, DCS dismissed its Petition to
Terminate Parental Rights, and on June 30, 2015, DCS added
"Return to Parent" as an alternative goal in the
permanency plan. In July 2015, the juvenile court permitted
Parents to have significant visitation with Zayne, starting
at six hours per week and progressing to unsupervised
overnight visits. Shortly following, in September, the court
found that Parents were compliant with the permanency plan
and that their visits with Zayne were successful. As a
consequence, the court approved unsupervised overnight
visitation every weekend beginning in October 2015. The
weekend visits have continued ever since.
the September 2015 hearing, the foster parents (collectively,
"Petitioners"), filed a Petition to Terminate
Parental Rights and for Adoption on the grounds of willful
failure to provide support, Tenn. Code Ann. § 36-1-102;
substantial noncompliance with the permanency plan, Tenn.
Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2);
severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4);
and persistence of conditions, Tenn. Code Ann. §
36-1-113(g)(3). One week later, they filed an amended
Petition, adding DCS as a respondent.
Petition also asked for a temporary restraining order
suspending Zayne's visits with Parents. On September 29,
the trial court granted the restraining order pending a
hearing on October 8, and after the hearing, the trial court
dissolved the temporary restraining order, finding no
evidence that Parents' visitation with Zayne would cause
him irreparable harm.
subsequently filed a Motion to Compel Joinder of DCS to
require DCS to assist Petitioners in the prosecution of the
petition to terminate Parents' rights. The principal
basis for the motion was that Tenn. Code Ann. §
36-1-113(h)(1) mandated that DCS file a petition to terminate
parental rights if a juvenile court has made a finding that
the parents committed severe child abuse. Because the Henry
County Juvenile Court found severe child abuse in Zayne's
case, Petitioners argued that the court should compel DCS to
join Petitioners' Petition to Terminate Parental Rights.
opposed the motion on the ground that it had the discretion
not to pursue termination of parental rights if a compelling
reason existed and insisted that Parents' substantial
compliance with the permanency plan was a compelling ground.
The trial court denied the motion, and the case proceeded to
trial on the foster parents' petition.
following Petitioners' motion to compel joinder of DCS,
Father filed a Tenn. R. Civ. P. 11 motion against Petitioners
and their attorney, alleging that Petitioners
"misled" the court to obtain a temporary
restraining order and that the allegations set forth in the
Petition were not supported by the evidence. Father argued
that the filing of the Petition was "intended to harass,
cause unnecessary delay, and/or needlessly increase the cost
of litigation" and asked the court to award
attorney's fees as a sanction. The trial court reserved
judgment on Father's motion pending trial.
petition to terminate Mother's and Father's parental
rights was tried over five days,  during which the court
heard testimony from Dr. Fred Steinberg, a psychologist who
evaluated Parents on behalf of Petitioners; Debbie Jelks,
Zayne's physical therapist; Heather France, Parents'
drug counselor at BHG; Jamie Estrada, DCS case manager;
Velvet Arnold, friend of Petitioners; Bret Brooks, DCS
supervisor; Abbey Buffington, Parents' counselor at Carey
Counseling Center; Jessalyn Medlock, Parents' family
intervention specialist at Youth Villages; Mother, Father,
Foster Mother, and Foster Father.
conclusion of Petitioners' case in chief, Father moved
for involuntary dismissal under Tenn. R. Civ. P. 41.02 based
on Petitioners' failure to prove grounds for termination
and best interest by clear and convincing evidence. The court
granted Fathers' motion as to willful failure to provide
support, Tenn. Code Ann. § 36-1-113(g); substantial
non-compliance with permanency plan, Tenn. Code Ann. §
36-1-113(g)(2); and abandonment, Tenn. Code Ann. §
36-1-102(1)(A)(iv). The trial court denied the motion as
to severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4);
persistence of conditions, Tenn. Code Ann. §
36-1-113(g)(3); and best interest, Tenn. Code Ann. §
36-1-113(i), and the trial moved forward on the remaining
conclusion of the trial, the court determined that
Petitioners had not proven persistence of conditions:
The child was removed due to the parents' use of illegal
drugs and the child testing positive for drugs at birth.
There is no proof that the parents continue to abuse illegal
drugs. They are both currently on Suboxone, for which they
have prescriptions and receive regular monitoring. There is
not proof that there are any other factors or conditions
which prevent the child's safe return to [Parents]. All
case workers called as witnesses testified that
[Parents'] home was safe and appropriate and that there
were no barriers or safety concerns in returning the child to
court determined that while Petitioners proved that Parents
had committed severe child abuse by clear and convincing
evidence, Petitioners did not prove that it would be in
Zayne's best interest to terminate Parents' parental
rights. Examining the best interest factors in Tenn. Code
Ann. § 36-1-113(i), the court found that Parents
maintained regular visitation with Zayne, that Parents
provided financial support to him, that Parents established a
meaningful relationship with Zayne, that both parents had
been compliant with drug treatment, and that they provided a
safe and appropriate environment. The court also denied
Father's Tenn. R. Civ. P. 11 motion.
the trial court dismissed the Petition, and Petitioners
present three issues for our review:
I. Did the trial court err in denying the Petitioners'
motion to compel DCS to join in the Petition to Terminate
Parental Rights pursuant to Tenn. Code Ann. §
II. Did the trial court err in finding that Petitioners did
not prove the statutory ground of Tenn. Code Ann. §
36-1-113(g)(3), persistence of conditions, by clear and
III. Did the trial court err in finding that Petitioners did
not show by clear and convincing evidence that termination