Assigned on Briefs February 20, 2019
from the Juvenile Court for Anderson County No.
J32585/17-1904 Brian J. Hunt, Judge.
a termination of parental rights case involving the parental
rights of the mother, Tora W. ("Mother"), to her
minor child, Kaden W. ("the Child"), who was eleven
years old at the time of trial. On January 19, 2017, the
Anderson County Juvenile Court ("trial court")
found that the Child was dependent and neglected and entered
an order removing the Child from Mother's custody and
placing the Child into the temporary legal custody of the
Tennessee Department of Children's Services
("DCS"). The Child was immediately placed in foster
care, where he remained at the time of trial. On December 20,
2017, DCS filed a petition to terminate the parental rights
of Mother. Following a bench trial, the trial court
terminated Mother's parental rights to the Child upon
determining by clear and convincing evidence that (1) Mother
had abandoned the Child by failing to provide a suitable home
for him, (2) Mother had not substantially complied with the
reasonable requirements of the permanency plans, and (3) the
conditions leading to the Child's removal from
Mother's custody persisted. The trial court further found
by clear and convincing evidence that termination of
Mother's parental rights was in the best interest of the
Child. Mother has appealed. Discerning no reversible error,
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
Matthew Birdwell, Oak Ridge, Tennessee, for the appellant,
Herbert H. Slatery, III, Attorney General and Reporter, and
Erin A. Shackelford, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and J. Steven Stafford, P.J.,
R. FRIERSON, II, JUDGE.
Factual and Procedural Background
and the Child were previously involved with DCS and the trial
court in 2015 when DCS filed a "Petition to Transfer
Temporary Legal Custody." In its petition, DCS requested
that the court find the Child to be dependent and neglected
and place custody of the Child with a proposed legal
custodian, E.S. The trial court subsequently placed the
Child into the custody of his biological father, Navy S.
("Father"), on May 22, 2015. The adjudicatory
hearing was continued more than once to allow Mother to work
with DCS's Family Support Services or to allow the
attorneys and parties to prepare for the upcoming
adjudicatory hearing. On September 3, 2015, DCS voluntarily
dismissed its "Petition to Transfer Temporary Legal
Custody," and the trial court restored custody of the
Child to Mother.
March 29, 2016, DCS filed a "Petition for Order
Controlling Conduct & For Protective Supervision,"
requesting that the trial court find the Child dependent and
neglected, as well as to request that the trial court
"require protective supervision" and "control
the conduct of the [parents]." In its petition, DCS
alleged, inter alia, that Mother had not taken the
Child to the doctor to obtain his prescription medication for
his severe ADHD and that the Child was having difficulty in
school since returning to Mother's custody. The trial
court subsequently entered an order requiring that Mother
comply with the "non-custodial permanency plan" as
The mother shall complete a Mental Health Assessment, a
parenting assessment, and follow the recommendations from
both assessments. The mother shall maintain stable housing,
keep [the Child's] doctor's appointments and ensure
he takes all medications as prescribed. [The Child] shall not
have any unexcused tardies or unexcused absences from school,
and shall bring all of his grades up to passing, and that the
mother shall attend all parent/teacher conferences as
requested by the school.
[Mother] shall work with in home services as long as
necessary and comply with DCS.
adjudicatory hearing was ultimately conducted on January 19,
2017. The trial court entered an adjudicatory and
dispositional hearing order on the date of the hearing,
reflecting that Mother waived her adjudicatory hearing and
stipulated that the Child had "improper guardianship at
the time of removal by the Mother - [Tennessee Code Annotated
§] 37-1-102(b)(13)(F)." The trial court therefore
found the Child to be dependent and neglected. Consequently,
Mother's parenting time with the Child was restricted to
supervised visitation at that time.
January 19, 2017, the trial court entered a bench order,
removing the Child from Mother's custody and placing the
Child in the physical and legal custody of DCS. The trial
court stated in its bench order that probable cause indicated
that the Child was dependent and neglected. The court also
determined that continuation of Mother's custody was
contrary to the Child's proper welfare because Mother
"tested positive for amphetamine and methadone at court
[on January 19, 2017, ] and has been noncompliant with both
the order controlling conduct and [the Family Support
Services] case in regards to completing drug treatment and
making sure the child receives his medication and based upon
the unavailability of the father." In turn, the trial
court concluded that DCS had made reasonable efforts to
prevent the Child's removal from Mother's home,
including parenting classes, drug and alcohol counseling for
Mother, intensive case management, residential treatment for
Mother, "court-ordered services (FSS case) and [a]
petition for order controlling conduct."
the Child's placement into DCS custody, DCS developed
permanency plans on February 9, 2017, and September 8, 2017,
which included requirements for Mother to complete. The trial
court approved the permanency plans on March 7, 2017, and
October 10, 2017, respectively, finding the requirements to
be reasonably related to the reasons the Child had been
removed from Mother's custody.
after the Child entered foster care, Mother completed an
inpatient drug and alcohol detoxification program at
Centerpointe, which had begun on January 26, 2017, and
continued through February 5, 2017. Upon Mother's release
from Centerpointe, Mother was to complete intensive
outpatient treatment, attend Alcoholics Anonymous/Narcotics
Anonymous ("AA/NA") meetings, and complete
aftercare. On February 9, 2017, Mother tested positive on a
drug screen for benzodiazepines and buprenorphine but held
prescriptions for those medications from Centerpointe.
completed a psychological evaluation on March 7, 2017,
performed by H. Abraham Brietstein, Ph.D., a clinical
psychologist. In his psychological evaluation report, Dr.
Brietstein concluded as follows:
SUMMARY AND RECOMMENDATIONS: [Mother] was
referred due to failing a recent drug screen, which resulted
in the removal of her children from her care. She has a long
history of drug addiction involving opioids and obtained
methadone for a number of years from a clinic that sounds as
if it had questionable practices. Her children have also been
removed in the past although they were returned. [Mother] has
always lived with her mother, although she has 2 children by
2 different m[e]n, and her youngest child is now in his
father's care. She is noted to function at a very low
level and appears to meet the criteria for intellectual
disability. As such, her intellectual limitations contribute
to her poor parenting practices, affecting her ability to
make appropriate judgments on their behalf. She has received
SSI [Supplemental Security Income] benefits secondary to
suffering a brain injury at the age of 9 when the bicycle she
was [riding] was struck by a minivan. She supports herself on
the disability benefits and has only briefly been employed.
Her personality is one in which she is antagonistic toward
authority figures, including DCS, and is generally suspicious
and distrustful of other people's motives, which further
complicates her ability to benefit from their services. Based
on the above, the following are some recommendations:
1. [Mother] should be involved in outpatient drug
rehabilitation in order to remain clean and should be able to
pass random drug screens on a consistent basis before having
her children returned.
2. [Mother's] mother should also participate in drug
rehabilitation and be able to pass random drug screens if
[Mother] continues to live with her mother.
3. Parenting classes need to be provided at a more basic
level for her to benefit from them.
4. A parenting or bonding assessment should be completed to
determine the extent to which the children are attached to
5. Should [Mother] fail to successfully complete the above
recommendations, termination of parental rights should be
October 10, 2017, Mother participated in a drug screen and
proved negative for all tested substances. On October 13,
2017, however, Mother tested positive on a nail-bed drug
screen for methamphetamine, the results of which included up
to a six-month timeframe preceding the test. On October 31,
2017, Mother completed an alcohol and drug assessment. During
the assessment, Mother participated in an additional drug
screen, testing positive for cocaine, amphetamines,
methamphetamine, and alcohol. The assessor accordingly
recommended that Mother complete intensive outpatient
treatment, continue compliance with her mental health service
provider, participate in a twelve-step program, and
participate in an aftercare program.
Kinser, the DCS family service worker for the family from
January 19, 2017, through November 2017, testified during
trial that Mother was participating in the case "for the
most part" after the Child entered DCS custody. He
further explained that she had stable housing during that
time and was residing with the maternal grandmother
("Grandmother"). Mr. Kinser also related that DCS
had concerns that Grandmother had substance abuse issues.
According to Mr. Kinser, although Mother had completed a
psychological evaluation and an alcohol and drug assessment
while he was working on the case, Mother had failed to
complete the recommendations therefrom, including parenting
classes and intensive outpatient drug treatment.
DCS efforts, Mr. Kinser additionally reported that he had
referred Mother to the service provider for the alcohol and
drug assessment, maintained regular contact with Mother
during that time, offered random drug screens to Mother, and
offered her encouragement and recommendations. DCS also had
submitted "PSGs," case services funded by the
state, to pay for Mother's psychological evaluation,
psychological services, therapeutic supervised visits, ETHRA
transportation, and parenting classes.
family service worker, Desiree Shelton, assumed
responsibility for the case in November 2017, following Mr.
Kinser's transfer to a different position within DCS. Ms.
Shelton remained the caseworker thereafter. During trial, Ms.
Shelton testified that when she was assigned the case, Mother
still needed to complete intensive outpatient treatment,
complete parenting classes, and provide proof of
transportation. Ms. Shelton noted that she had attempted to
assist Mother with gaining admittance into an intensive
outpatient program for drug treatment. Furthermore, Ms.
Shelton had spoken to the service provider offering parenting
classes, instructing that the provider "may need to go
slower with her and to be more . . . one-on-one and
personal." According to Ms. Shelton, the service
provider had not received a response from Mother after
January 12, 2018, Mother tested positive on a drug screen for
amphetamines and methamphetamine. Concerning the event, Ms.
Shelton related that Mother informed her that the January
2018 positive drug screen result was caused by a prescription
for stomach medicine. According to Ms. Shelton, although
Mother agreed to provide the respective prescription, she
never did. During the period that Ms. Shelton was assigned
the case, Mother had not completed her parenting classes and
had not completed any type of alcohol or drug treatment. Ms.
Shelton attempted to inspect Mother's home but was denied
entry because Mother would not answer the door. Ms. Shelton
opined that Mother did not trust her.
the request of Mother's trial counsel, a social worker
for Quality Care for the Heartland Company, Denee Foisy,
become case manager for Mother in June 2017 to assist DCS in
providing services to Mother. As such, Ms. Foisy attempted to
assist Mother in completing intensive outpatient treatment,
parenting classes, and random drug screens. Regarding
intensive outpatient treatment, Ms. Foisy gave information to
Mother with several providers she could approach to seek
treatment. Ms. Foisy explained that Mother ultimately chose
Hope of East Tennessee due to its close proximity to her
home. Ms. Foisy also assisted Mother in locating parenting
classes and further instructed Mother to appear at Hope of
East Tennessee once a week to undergo a random drug screen.
According to Ms. Foisy, of approximately forty or forty-five
occasions she requested that Mother appear for a drug screen,
Mother participated in only one drug screen, "and it was
only because [Mother] went to [intensive outpatient] intake
for East Tennessee and they make you."
Ms. Foisy's determination that Mother needed more intense
services, she referred Mother for Department of Intellectual
and Developmental Disability ("DIDD") services.
With Ms. Foisy's assistance, Mother was approved to
receive DIDD services. As such, by trial, DIDD had been
providing services to Mother for approximately three weeks
and was in the process of determining what additional
services Mother needed. According to Ms. Foisy, although she
had also attempted to provide Mother with those services,
Mother definitely thought she had completed almost
December 20, 2017, DCS filed its petition to terminate
Mother's parental rights to the Child. The trial court
conducted a trial concerning the termination petition on
March 27, 2018. When Mother did not appear during the trial,
her attorney stated that she could not appear because her
disability caused her not to "handle these situations
very well." Mother's attorney also conveyed having
informed Mother that "her hysterical behavior . . .
would not be accepted in [the] courtroom." At the
conclusion of trial, the trial court terminated Mother's
parental rights upon a determination by clear and convincing
evidence that (1) Mother had abandoned the Child by failing
to provide a suitable home, (2) the conditions which had led
to the Child's removal from Mother's custody
persisted, and (3) Mother had not substantially complied with
the reasonable requirements of her permanency plans. The
trial court further found by clear and convincing evidence
that termination of Mother's parental rights was in the
Child's best interest. Mother timely appealed.
raises one issue for review, which we have restated as
1. Whether DCS provided reasonable efforts to assist Mother
in accordance with Mother's and the Child's specific
presented two additional issues for review, which we have
restated slightly as follows:
2. Whether the trial court erred by finding clear and
convincing evidence to support statutory grounds for
termination of Mother's parental rights.
3. Whether the trial court erred by finding clear and
convincing evidence that termination of Mother's parental
rights was in the best interest of the Child.
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.
See Tenn. R. App. P. 13(d); see also 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 387, 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');">455 U.S. 745 (1982)). As our Supreme Court has explained:
The parental rights at stake are "far more precious than
any property right." Santosky [v.
Kramer], 455 U.S. [745, ] 758-59 [(1982)]. 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 decision 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 ...