In re AYDEN S. et al.
Session March 14, 2018
from the Juvenile Court for Macon County No. 2016-JV-136 Ken
appeal the termination of parental rights to their three
children. The juvenile court found three statutory grounds
for termination: substantial noncompliance with the
requirements of the permanency plans, persistence of
conditions, and failure to manifest an ability and
willingness to assume custody or financial responsibility of
the children. The court also found that termination of the
parents' parental rights was in the children's best
interest. We conclude the evidence of the statutory grounds
for termination was less than clear and convincing. Thus, we
reverse the termination of the parents' parental rights.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
W. Parrish, Lebanon, Tennessee, for the appellants, Leslie S.
and Curtis S.
Herbert H. Slatery III, Attorney General and Reporter, and
Alexander S. Rieger, Deputy Attorney General, for the
appellee, Tennessee Department of Children's Services.
Neal McBrayer, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S., and J. Steven
Stafford, P.J., W.S., joined.
NEAL MCBRAYER, JUDGE
S. ("Mother") and Curtis S. ("Father")
have three children: Katelyn S., born in January 2007, C.J.,
born in December 2009, and Ayden S., born in March 2013. The
Tennessee Department of Children's Services
("DCS") first became involved with the family prior
to the birth of Ayden. While staying the night with their
maternal grandmother, Katelyn and C.J. managed to leave the
home and find their way to a neighbor's house.
incident did not result in any charges against Mother or
Father, but the investigator noted concerns with the parents.
According to the investigator, "there was mention of
domestic violence between both [Father] and [Mother]."
The investigator also learned of possible drug use by Father.
offered the parents counseling, which was refused. And the
case was closed without any court action.
the indications of drug use proved true. In late-2011, the
Juvenile Court for Macon County, Tennessee, adjudicated
Katelyn and C.J. dependent and neglected based on the
parents' abuse of prescription medication. After
approximately one year and the completion of a trial home
visit, the court restored custody to Mother and Father.
April 2013, DCS received another referral alleging drug
exposure. Upon investigation, both parents' drug screens
were positive for opiates. Hair follicle tests conducted less
than two weeks later showed Mother negative for all
substances. But Father was positive for methamphetamines,
oxycodone, hydrocodone, and amphetamines.
result, DCS filed a petition to declare all three children
dependent and neglected. Based on the petition, the juvenile
court issued an order, restraining Father from "coming
about the person, residence or school of the . . .
children" and prohibiting any contact with the children,
except by court-ordered supervised visitation. The order also
directed Mother not to allow any contact between the children
and Father and to report any contact or attempted contact to
September 5, 2013, the court entered an order adjudicating
the children to be dependent and neglected based on the
parents' stipulation and continuing the restraining order
against Father. But the court permitted Mother to retain
custody. The order included findings about the parents'
positive drug screens but noted that, at the time of the
screen, Mother had a prescription for hydrocodone following
the recent birth of Ayden.
point thereafter, Father was arrested for breaking
Mother's arm. Mother would later testify that the
incident occurred in November 2013.
August 25, 2014, nearly a year after the court returned
custody to Mother, DCS moved for temporary legal custody of
the children. The motion alleged that, five months earlier,
two of the children had engaged in "sexually
inappropriate behavior." The motion linked the behavior
to abuse that occurred while one of the two children was in
foster care. According to the motion, DCS advised Mother of a
mandatory requirement that the children receive counseling
"and [of] the need for the children to be supervised at
all times while together or with any other children to
prevent further occurrences." But again according to the
motion, the children had missed several counseling sessions
and were not being properly supervised.
further alleged that Ayden had injured his foot as a result
of not being properly supervised and that the children had
not received appropriate medical care outside of visits to
the Health Department or Emergency Room. DCS claimed that
Mother "display[ed] great difficulty parenting her
motion also related to Father, alleging that he had
"made minimal progress towards returning to the
home." It expressed concern that Father was again
abusing prescription drugs. And the motion claimed that
Father was violating the court's restraining order and,
with Mother's acquiescence, was visiting the children in
October 23, 2014, the juvenile court entered an order finding
that the children "continue to be dependent and
neglected" based on the facts alleged in DCS's
motion. And the court changed its previous disposition of the
children, placing them in the custody of DCS.
the children were in foster care, the parents participated in
the creation of three permanency plans, from November 2014 to
May 2016. Each of the subsequent plans acknowledged the
parents' progress but for the most part included
substantially similar requirements as the first plan.
October 2015, the court granted Mother a ninety-day trial
home visit with the children, which was extended by agreement
for an additional ninety days. But in April 2016, the court
terminated the trial home visit based on DCS's
observations that, among other things, Mother's parenting
of the children's behavior was ineffective, C.J. failed
kindergarten, Ayden "regressed" from being
potty-trained, and the family "ha[d] not made changes in