In re KEILYN O. ET AL.
Assigned on Briefs May 1, 2018
from the Juvenile Court for Bedford County No. 2016-JV-217
Charles L. Rich, Judge
appeals the termination of her parental rights to two
children. The juvenile court found six statutory grounds for
termination and that termination of the mother's parental
rights was in the children's best interest. We conclude
that the evidence was less than clear and convincing as to
one of the statutory grounds and that two other statutory
grounds did not apply in this instance. But the record
contains clear and convincing evidence to support three
grounds for termination and that termination is in the
children's best interest. So we affirm the termination of
the mother's parental rights.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed as Modified
Emeterio "Terry" R. Hernando, Lewisburg, Tennessee,
for the appellant, Mary O.
Herbert H. Slatery III, Attorney General and Reporter, and
Brian A. Pierce, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
Neal McBrayer, J., delivered the opinion of the court, in
which Arnold B. Goldin, JJ., joined. Thomas R. Frierson II,
J., filed a concurring opinion.
NEAL McBRAYER, JUDGE
("Mother") had five children, ranging in age from
sixteen to three. This case involves termination of her
parental rights to two of those children, Keilyn, born
October 2002, and Jahlin, born January 2004. Mother had a
long history of addiction to prescription medications, a
problem she attempted to remedy several times over the years
with limited success.
present difficulties began in September 2015 after her
boyfriend evicted her from his home. She moved in with
friends, along with three of her children, including Keilyn
and Jahlin. In November, Mother left her children with her
friends and enrolled in a 14-day inpatient drug treatment
program in Madison, Alabama. While Mother was gone, one of
the children threatened another student at school and was
taken to the police department. When Mother's friends
were notified, they informed the police that they were no
longer willing to care for the children due to the incident
at school and the children's behavior in the home.
November 20, 2015, DCS took the children into emergency
custody. And, shortly thereafter, DCS filed a petition for
temporary legal custody and to find the children dependent
and neglected in the Juvenile Court of Bedford County,
December 2015, Mother participated by telephone in the
development of a permanency plan. The goal of the plan was to
return the children to Mother's custody. Based on
conversations with Mother, DCS had three primary concerns:
Mother's history of drug addiction, her untreated mental
health issues, and her lack of housing. To address these
concerns, the plan required Mother to complete a series of
action steps. Mother needed to provide proof of completion of
the Alabama program and any follow up recommendations, sign a
release of information for the program, participate in random
drug screens, and keep anyone under the influence of alcohol
or drugs away from the children. Because Mother reported that
she had been diagnosed with bipolar disorder and
attention-deficit hyperactivity disorder or ADHD, she was
required to submit to a mental health assessment, follow all
recommendations, provide proof of completion, and sign a
release. Mother also needed to secure housing for a
three-month period and notify DCS of the address. The plan
anticipated that Mother would pay child support and
participate in supervised visitation with the children. DCS
informed Mother that it could help her complete her action
after development of the plan, Mother was arrested for a
probation violation. She pled guilty to failure to appear and
evading arrest. She remained incarcerated from January 3 to
March 11, 2016.
Mother's absence, the juvenile court held a ratification
hearing on the permanency plan. After reviewing the plan, the
court found the requirements in the plan to be reasonable and
related to remedying the conditions that necessitated foster
care and were in the best interests of the children.
her release, Mother attended the March 2016 adjudicatory
hearing with her appointed counsel. She stipulated at the
hearing that the facts alleged in the petition for temporary
custody were true. And the court found by clear and
convincing evidence that the children were dependent and
neglected. The court also ordered supervised visitation and
directed Mother to pay $50 per week in child support.
family service worker (the "FSW") assigned to the
case met with Mother and her attorney that same day and
reviewed the permanency plan and the criteria and procedures
for termination of parental rights. She specifically told
Mother that she could lose her parental rights if she failed
to visit her children or pay child support. She also provided
Mother with a copy of the plan and the criteria for
termination of parental rights. Mother told the FSW that she
was living with a friend but did not provide the address. She
also explained that she was in the process of obtaining a new
telephone and would let the FSW know her new number.
with a new phone number, the FSW had difficulty contacting
Mother. Mother did not answer the FSW's calls. And when
the FSW scheduled a meeting, Mother did not show.
a phone conversation in early April 2016, the FSW again
discussed the requirements of the plan with Mother. Mother
reported on her progress under the plan, specifically that
she was attending narcotics anonymous meetings, seeing a
counselor, and actively looking for new employment. But she
still did not provide an address, and she declined the
FSW's offer to help her complete her responsibilities.
April, Mother found a job. Between April and November 2016,
she earned $800 a month. After paying her expenses, Mother
typically had $200-$400 in discretionary funds. Although she
never paid any formal child support for Keilyn or Jahlin,
Mother bought various items for the boys, such as school
supplies, backpacks, shoes, groceries, and soap.
placed Keilyn and Jahlin in a resource home approximately
four hours away from Mother. DCS initially allowed the
children to visit their maternal grandmother on weekends so
that Mother could visit under the grandmother's
supervision. But on July 1, 2016, the grandmother did not
return the children to foster care as scheduled. And, on July
6, it was discovered that the maternal grandmother had
allowed the children to spend several days unsupervised with
Mother. DCS discontinued the weekend visits at
grandmother's home. Mother and maternal grandmother were
informed that they should visit the children at the foster
home. Mother testified that she spoke with her children every
day but did not visit them again until Thanksgiving 2016 when
DCS allowed the children to spend the holiday at their
maternal grandmother's home.
20, Mother informed the FSW that she had completed her action
steps. The FSW requested that Mother meet with her to review
her progress on the permanency plan and to provide the
necessary proof of completion. The FSW explained that,
without the documentation, she could not start the
reunification process. Despite this warning, Mother failed to
comply with either request.
July and August, although Mother spoke with the FSW and
exchanged text messages, she failed to appear for scheduled
meetings even when she selected the meeting date. In late
August, after numerous requests for a meeting, Mother told
the FSW that a meeting was unnecessary as she had completed
her responsibilities under the permanency plan and did not
need any assistance. After August, the FSW again lost contact
November 9, 2016, DCS filed a petition to terminate
Mother's parental rights to Keilyn and Jahlin. The
petition alleged six grounds for termination: abandonment by
failure to visit, abandonment by failure to support,
abandonment by failure to provide a suitable home,
substantial noncompliance with the permanency plans,
persistent conditions, and failure to assume custody. DCS was
unable to personally serve Mother and was granted permission
to serve her by publication after presenting proof that she
was evading service.
April 2017, over a year since her last meeting with DCS,
Mother met with the FSW to discuss her progress. Again,
Mother failed to provide proof that she had completed any of
her responsibilities. The FSW created a list of her most
important action steps, which Mother acknowledged by signing.
But when the topic of termination of parental rights arose,
Mother became angry and left.
Mother tested positive for methamphetamine and
Also in May, Mother finally obtained a mental health
evaluation. Mother testified that the evaluation recommended
inpatient treatment, but she did not follow the
recommendation. Instead, she obtained two more evaluations
from other providers, hoping for a more favorable result. At
the time of trial, Mother had not received any treatment for
her mental health issues. And although she had been
prescribed medications for her diagnoses in the past, she
admitted that she had not taken the prescribed medications
while the boys were in foster care.
2017, a new family service worker was assigned to
Mother's case. Although she immediately requested a
meeting with Mother to discuss her progress, the new family
service worker encountered similar difficulties as the FSW.
Eventually, Mother disclosed that she was avoiding ...