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In re Ayden S.

Court of Appeals of Tennessee, Nashville

May 31, 2018

In re AYDEN S. et al.

          Session March 14, 2018

          Appeal from the Juvenile Court for Macon County No. 2016-JV-136 Ken Witcher, Judge

         Parents 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed

          Adam 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.

          W. 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.

          OPINION

          W. NEAL MCBRAYER, JUDGE

         I.

         Leslie 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.

         The 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.

         DCS offered the parents counseling, which was refused. And the case was closed without any court action.

         Sadly, 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.

         In 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.

         As a 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 DCS.

         On 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.

         At some point thereafter, Father was arrested for breaking Mother's arm. Mother would later testify that the incident occurred in November 2013.

         On 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.

         DCS 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 children."

         The 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 Mother's home.

         On 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.

         While 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.

         In 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 their ...


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