Session January 8, 2019
from the Chancery Court for Sumner County No. 2017-AD-11
Louis W. Oliver III, Chancellor
three years after a child was placed with them by an
unlicensed child placing agency, the child's guardians
petitioned to terminate the parental rights of the
child's parents. The chancery court found two statutory
grounds for termination: abandonment by willful failure to
visit and abandonment by willful failure to support. The
court also found that termination of parental rights was in
the child's best interest. Only the child's mother
appeals. We conclude that the evidence was less than clear
and convincing as to each of the alleged statutory grounds.
So we reverse the termination of mother's parental
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Shyanne C. Riddle, Nashville, Tennessee, for the appellant,
J. Rutherford, Nashville, Tennessee, for the appellees, Barry
B. and Jennifer B.
Fordham, Gallatin, Tennessee, Guardian ad Litem.
Neal McBrayer, J., delivered the opinion of the court, in
which Andy D. Bennett, J., joined.
NEAL McBRAYER, JUDGE
April 11, 2014, a volunteer with Jonah's Journey
contacted Barry B. and Jennifer B. (together,
"Guardians," or individually, "Mr. B."
and "Mrs. B.") about 11- month-old Raeshad, whose
mother Askia T. ("Mother") was incarcerated. A
ministry of a local church, Jonah's Journey assisted
incarcerated mothers by placing their children with Christian
families. It was regarded as "an alternative to the
children going to foster care with Department of
Children's Services." It was not licensed as a child
placing agency. See Tenn. Code Ann. §
37-5-501(b)(7) (2014) (defining "child placing
had attended an informational meeting for Jonah's Journey
the previous month. According to Mrs. B., prior to the April
call about Raeshad, "[a]ll we did was sign a piece of
paper and I think we left our phone number and our e-mail
address maybe." In comparing Jonah's Journey with
their previous years of experience as foster parents for the
Department of Children's Services, Mr. B. agreed that
"there was less red tape with Jonah's Journey, less
paperwork, less oversight [and] rules and regulations."
the call, the volunteer for Jonah's Journey informed
Guardians that the child had to be placed that day. Guardians
were also informed that Raeshad required further surgery for
clubfeet. Guardians agreed to the placement, and Raeshad came
to their home with only the clothes on his back, a bottle, a
blanket, and a limited power of attorney that had been
executed by Mother. The limited power of attorney, which
misspelled Jonah's Journey as "Jonas Journey,"
granted Guardians temporary custody of Raeshad and authorized
Guardians to "secur[e] and mak[e] any necessary
provisions for my child [sic] care, comfort, maintenance and
any medical care, treatment or support." The power of
attorney further specified that the temporary custody would
only remain in effect until Mother's release from
last minute arrangements were never part of the plan. Mother
became pregnant with Raeshad while on parole for felony drug
possession. After violating her parole, Mother became
concerned that she might be arrested during the pregnancy or
just after giving birth. Leaving the child with his father,
Rae B. ("Father"), was not an option for various
reasons. And Mother did not want the child to go into the
Jonah's Journey, Mother met a prospective couple, other
than Guardians, who were willing to care for Raeshad during
her incarceration. Mother planned to let the other
prospective couple take Raeshad from the hospital. But after
giving birth, Mother had a change of heart. She decided to
take Raeshad home and stay with him through an initial
surgery, which was to take place in the coming months, for
his clubfeet. The need for multiple surgeries had been
revealed through an ultrasound during Mother's pregnancy.
cared for Raeshad through his first surgery, but she was
arrested just shy of Raeshad's first birthday. By that
time, the other prospective couple could no longer take
Raeshad, so Jonah's Journey contacted Guardians. Mother
met Guardians for the first time when they brought Raeshad to
the prison for a visit. Guardians continued to bring the
child for visits every other week throughout Mother's
October 2014, Mother moved to a step-down program in
Chattanooga. Despite the over 100 mile distance between
Guardians' home and the Chattanooga facility, Guardians
continued to facilitate visits between Mother and Raeshad. On
January 21, 2015, Mother was released.
her release, Mother moved in with a relative, Thiakia T.
("Cousin"), in Antioch. Although by its terms the
limited power of attorney and thus the temporary custody had
expired, Mother and Mrs. B. both proceeded as if the
transition would not be immediate. Since Mother's
incarceration, another entity had taken over the work of
Jonah's Journey, and it was now a licensed child placing
agency. But Mother did not agree to participate in the
licensed program. So, as Mrs. B. described the situation,
"[i]t was up to the mother and the caregivers to work
begin, Mother and Mrs. B. agreed to an overnight visit. Their
recollections of the timing of that first post-release visit
differed. According to Mrs. B., the visit took place nearly a
month after Mother's release. According to Mother, she
visited ten days after her release. Both did agree that Mrs.
B. brought Raeshad to Cousin's home for the visit.
time, Mother planned to move from her cousin's home into
transitional housing offered through a local non-profit. When
that plan did not work out, Mother led an itinerate life.
While Mother visited her child roughly once a month during
the first half of the year, she did not visit at all in
August, September, or October. Mother's moves and lack of
communication frustrated Mrs. B. As Mrs. B. described
matters, "[i]t was very vague, a lot of unanswered
questions, and I don't want to be a drill sergeant. I
didn't want to be her mother. I just wanted to know a
couple of things for safety purposes, for a safe environment
November, Mother called Mrs. B., requesting that she bring
Raeshad to the home of a friend of Mother's for a visit.
Mrs. B. declined because she "didn't know the
friend's name or situation." Instead, she agreed to
meet Mother at a local church on a Friday. Saturday morning,
Mrs. B. received a call from a friend who had spotted Raeshad
at a restaurant where Mother worked. Mrs. B. called Mother,
and Mother explained that she had been called into work
unexpectedly and that Raeshad was never out of her sight.
Mrs. B. described Mother as very angry with Mrs. B.'s
that evening, Mother called Mrs. B. back to say that she was
keeping Raeshad. But the very next day, Mother texted Mrs. B.
to ask if she could take Raeshad because Mother had to work.
It was as if the previous conversation never happened. Mrs.
B. agreed to pick up the child.
December, Mother visited with Raeshad again. Then on the day
after Christmas, Mother called to inform Mrs. B. that she was
moving to Jackson, Tennessee, and taking Raeshad with her.
Mother claimed that she had first alerted Guardians to her
potential move in October. Mother's mother lived in
Jackson, and it was Mother's hometown. As Mother later
Nashville was not doing it for me. It was all closed doors.
I'm an incarcerated woman. I have felonies on my
background. Nashville was just beating me down, so it was not
like I volunteered just to go away and get away from
everybody freely, I needed to get away because either I was
going to go back to the same stuff I used to do in my past or
probably would have wind [sic] up dead, homeless on the
opposed the idea of Mother taking Raeshad with her. She
suggested that Mother first get a job, an apartment, and
arrange for child care in Jackson. According to Mrs. B.,
I kept reiterating it would be best if [Mother] had a job,
place of [her] own -- just get those two things -- were
crucial to having stability, and it was not -- it was not
being met with any kind of agreement. She was going to come
get him regardless. She did not like what I was saying.
told Mother "that [they] were going to let a judge
decide because [Mother] wasn't doing anything stable in
[Mrs. B.'s] opinion, and [Guardians] had a little
experience with DCS."
December 29, 2015, Guardians did go to the clerk's office
for the juvenile court to explain their situation. But they
were advised that they needed an attorney.
with Guardians' refusal to let her take her child, Mother
contacted the founder of Jonah's Journey, but by that
point, she was no longer associated with the program. The
founder remembered being confused by both the call and why
Mother did not already have her child. She recalled the
following about the call:
[Mother] was really upset with me and she was having words
with me, and I was, like, I don't understand what
you're wanting me to say. She was trying to get me to say
she was part of a program. I was, like, you were part of
Jonah's Journey, the ministry. You're not part of
Jonah's Journey, the licensure. I'm not understanding
what you ...