In re NEAMIAH R. et al.
Session February 22, 2018
from the Juvenile Court for Knox County No. 162925 Timothy E.
action, the trial court terminated the respondent
father's parental rights to his children, following its
finding that clear and convincing evidence existed to
establish the statutory grounds of (1) severe child abuse,
(2) substantial noncompliance with the reasonable
requirements of a permanency plan, and (3) failure to
manifest an ability and willingness to personally assume
legal and physical custody or financial responsibility of the
children. The court also determined by clear and convincing
evidence that termination was in the best interest of the
children. The father has appealed solely the best interest
determination. Discerning no error regarding the statutory
grounds for termination found by the trial court or the
court's best interest analysis, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
Matthew A. Robinson, Knoxville, Tennessee, for the appellant,
Earl R. 
Herbert H. Slatery, III, Attorney General and Reporter, and
Peako A. Jenkins, Assistant Attorney General, for the
appellee, State of Tennessee Department of Children's
R. Frierson, II, J., delivered the opinion of the court, in
which Charles D. Susano, Jr., and John W. McClarty, JJ.,
R. FRIERSON, II, JUDGE
Factual and Procedural Background
5, 2017, the Tennessee Department of Children's Services
("DCS") filed a petition seeking to terminate the
parental rights of Earl R. ("Father") to his three
children: Neamiah, age five years; Major, age three years;
and Mal'akhi, age nineteen months (collectively,
"the Children"). DCS sought to terminate the
parental rights of the Children's mother, Jennifer F.
("Mother"), via a separate proceeding. In the June
5, 2017 petition concerning Father's parental rights, DCS
averred that it had been awarded temporary custody of the
Children on August 2, 2016, following the Children's
removal from their parents' custody due to nutritional
and medical neglect, domestic violence, substance abuse, lack
of supervision, inappropriate care, and failure to abide by
safe sleep protocols. Specifically, DCS asserted that
Mal'akhi had been hospitalized on May 26, 2016, after
being diagnosed with severe failure to thrive. DCS further
averred in the petition that on the day the Children were
taken into custody, Mal'akhi was found alone on a bed in
Mother's apartment while Mother visited with a neighbor
and Neamiah and Major played outside unsupervised. Mother
failed a drug screen administered on that day. Father
appeared at the apartment while Mother was being interviewed
and was arrested for domestic assault based on Mother's
allegation that Father had hit her.
termination petition, DCS alleged that following a dependency
and neglect hearing conducted on February 14, 2017, the trial
court entered an order determining that Mal'akhi was the
victim of severe abuse at the hands of both parents. DCS
cited Father's testimony at the prior hearing, wherein
Father reportedly stated that he was aware that Mal'akhi
was underweight but that he nonetheless trusted Mother to
take care of Mal'akhi. Father allegedly admitted that he
failed to follow up on Mother's compliance with medical
recommendations for Mal'akhi and that he "probably
should have done more." Father reportedly acknowledged
that he participated in the care of the Children but stated
that he did not attend Mal'akhi's medical
also alleged in its termination petition that Father had
failed to substantially comply with the reasonable
responsibilities set out in his permanency plan. According to
DCS, a permanency plan had been developed on August 24, 2016,
with Father's participation, which required that Father:
(1) complete an alcohol and drug assessment and follow any
resultant recommendations; (2) refrain from associating with
drug users or dealers; (3) pass random drug screens; (4)
address domestic violence in therapy or classes; (5) obtain
and maintain safe, suitable housing; (6) complete parenting
education through therapeutic visitation and follow the
therapist's recommendations; and (7) complete a mental
health assessment and follow resultant recommendations.
Father was also required to visit the Children regularly,
maintain a legal source of income, pay child support, avoid
criminal charges, and maintain contact with the DCS case
regard to these requirements, DCS acknowledged in the
petition that Father had visited the Children, albeit not
consistently, and had completed both substance abuse and
mental health assessments. DCS asserted, however, that Father
had failed to follow through with other requirements,
including the recommendations from his assessments, and that
he had recently tested positive for cocaine use.
further alleged in the petition that Father had failed to
"manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody
or financial responsibility of the children, and placing the
children in [Father's] legal and physical custody would
pose a risk of substantial harm to the physical and
psychological welfare of the children." See
Tenn. Code Ann. § 36-1-113(g)(14).
a bench trial conducted on October 5, 2017, the trial court
entered an order terminating Father's parental rights to
the Children on October 18, 2017. In its order, the court
noted that it had previously entered an order determining
that Mal'akhi had suffered severe abuse at the hands of
both parents, following Mal'akhi's diagnosis of
severe failure to thrive while in the parents' custody.
The child's condition necessitated hospitalization. The
court also stated that Father had testified during the
dependency and neglect hearing that he was aware of
Mal'akhi's low weight and that he should have done
more to address the issue. The court further relied upon the
testimony of Dr. Marymer Perales, an expert witness in the
fields of pediatric emergency medicine and child abuse, who
testified at the dependency and neglect hearing regarding
failure-to-thrive infants. According to the court, Dr.
Perales explained that malnutrition in infants carries many
risks, including frequent illness, delayed brain growth,
learning disabilities, and other mental health and cognitive
issues. Dr. Perales also opined that improper monitoring of
children who failed to thrive could ultimately result in
on these and other facts, the trial court determined that
Father had committed severe child abuse against Mal'akhi.
In addition, the court found that (1) Father had failed to
substantially comply with the reasonable responsibilities of
his permanency plan and (2) Father had failed to manifest, by
act or omission, an ability and willingness to personally
assume legal and physical custody or financial responsibility
of the children, and placing the children in Father's
legal and physical custody would pose a risk of substantial
harm to their physical and psychological welfare. As the
This case is remarkably simple. The severe abuse adjudication
against [Father] is final and unappealed. [Father] completed
the assessments required by the permanency plan but then did
not follow any of the recommendations. He came to some visits
but not regularly and missed half of the therapeutic visits
provided to increase his parenting skills. He did not
participate in any domestic violence treatment and attacked
another woman after the children entered foster care,
resulting in his current incarceration. He had the
opportunity to participate in those programs that could have
put him on the road to recovery, but he did not cooperate.
The Court liked his closing speech and liked his attitude.
The Court believes that [Father] would like to change, but
there is no evidence so far to that effect. The Court wished
he had made those changes when it counted. The Court also
wished he had not subjected his child to severe abuse and the
risk of serious bodily injury or death.
regard to best interest, the trial court analyzed the
applicable statutory factors and made specific findings
regarding the Children's best interest. After considering
the factors and circumstances, the court determined by clear
and convincing evidence that it was in the best interest of
the Children to terminate Father's parental rights.
Father timely appealed.
presents one issue for our review, which we have restated
Whether the trial court erred by determining that it was in
the Children's best interest to terminate Father's
Standard of Review
termination of parental rights case, this Court has a duty to
determine "whether the trial court's findings, made
under a clear and convincing standard, are supported by a
preponderance of the evidence." In re F.R.R.,
III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial
court's findings of fact are reviewed de novo
upon the record, accompanied by a presumption of correctness
unless the evidence preponderates against those findings.
Tenn. R. App. P. 13(d); see In re Carrington H., 483
S.W.3d 507, 524 (Tenn. 2016); In re F.R.R., III, 193
S.W.3d at 530. Questions of law, however, are reviewed de
novo with no presumption of correctness. See In re
Carrington H., 483 S.W.3d at 524 (citing In re
M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial
court's determinations regarding witness credibility are
entitled to great weight on appeal and shall not be disturbed
absent clear and convincing evidence to the contrary. See
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
have a fundamental constitutional interest in the care and
custody of their children under both the United States and
Tennessee constitutions." Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established,
however, that "this right is not absolute and parental
rights may be terminated if there is clear and convincing
evidence justifying such termination under the applicable
statute." In re Drinnon, 776 S.W.2d 96, 97
(Tenn. Ct. App. 1988) (citing Santosky v. Kramer,
455 U.S. 745 (1982)). As our Supreme Court has recently
The parental rights at stake are "far more precious than
any property right." Santosky, 455 U.S. at
758-59. Termination of parental rights has the legal effect
of reducing the parent to the role of a complete stranger and
of ["]severing forever all legal rights and obligations
of the parent or guardian of the child." Tenn. Code Ann.
§ 36-1-113(1)(1); see also Santosky, 455 U.S.
at 759 (recognizing that a decison terminating parental
rights is "final and irrevocable"). In
light of the interests and consequences at stake, parents are
constitutionally entitled to "fundamentally fair
procedures" in termination proceedings.
Santosky, 455 U.S. at 754; see also Lassiter v.
Dep't of Soc. Servs. of Durham Cnty, N.C. , 452 U.S.
18, 27 (1981) (discussing the due process right of parents to
fundamentally fair procedures).
Among the constitutionally mandated "fundamentally fair
procedures" is a heightened standard of proof-clear and
convincing evidence. Santosky, 455 U.S. at 769. This
standard minimizes the risk of unnecessary or erroneous
governmental interference with fundamental parental rights.
Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). "Clear and convincing evidence enables the
fact-finder to form a firm belief or conviction regarding the
truth of the facts, and eliminates any serious or substantial
doubt about the correctness of these factual findings."
In re Bernard T., 319 S.W.3d at 596 (citations
omitted). The clear-and-convincing-evidence standard ensures
that the facts are established as highly probable, rather
than as simply more probable than not. In re Audrey
S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the
trial court or as supported by a preponderance of the
evidence, amount to clear and convincing evidence of the
elements necessary to terminate parental rights. In re
Bernard T., 319 S.W.3d at 596-97.
In re Carrington H., 483 S.W.3d at 522-24.
"[P]ersons seeking to terminate [parental] rights must
prove all the elements of their case by clear and convincing
evidence, " including statutory grounds and the best
interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
Statutory Grounds for Termination of Father's Parental
Code Annotated § 36-1-113 (2017) lists the statutory
requirements for termination of parental ...