IN RE TREY S. ET AL.
Assigned on Briefs April 1, 2019
from the Juvenile Court for Williamson County No. 35799
Sharon Guffee, Judge
court terminated a mother's and father's parental
rights to three children on the grounds of wanton disregard
for the children's welfare, substantial noncompliance
with a permanency plan, and persistence of conditions. Both
parents appealed the termination. We affirm the trial
court's judgment in all respects.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Jennifer L. Honeycutt, Franklin, Tennessee, for the
appellant, Elizabeth D.R. David Mitchell Jones, Franklin,
Tennessee, for the appellant, Tony E.S., Jr.
Herbert H. Slatery, III, Attorney General and Reporter, and
Matthew Daniel Cloutier, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
Denise Huddleston Johnson, Brentwood, Tennessee, Guardian Ad
D. Bennett, J., delivered the opinion of the Court, in which
D. Michael Swiney, C.J., and John W. McClarty, J., joined.
D. BENNETT, JUDGE
parental termination case, Elizabeth D.R.
("Mother") and Tony E.S., Jr. ("Father")
are the parents of Trey S., Ryleigh S., and Drake S., who
were born in 2009, 2011, and 2014, respectively. The
Department of Children's Services ("DCS" or
"the Department") took custody of the children by
court order in June 2016 and filed a petition to terminate
the parents' rights on December 20, 2017. The grounds DCS
asserted against Mother and Father included abandonment by
incarcerated parent through wanton disregard for the
children's welfare pursuant to Tenn. Code Ann.
§§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv). The
Department also alleged the ground of persistence of
conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3)
against Mother and substantial noncompliance with the
permanency plan pursuant to Tenn. Code Ann. §
36-1-113(g)(2) against Father. The trial court terminated
both Mother's and Father's parental rights after
finding that DCS proved by clear and convincing evidence each
of the grounds it asserted and that it was in the
children's best interests for Mother's and
Father's rights to be terminated. Mother and Father each
appeal the trial court's judgment, arguing that the trial
court erred in holding that DCS proved by clear and
convincing evidence the grounds DCS asserted and that it was
in the children's best interests that the parents'
rights be terminated.
FACTUAL AND PROCEDURAL BACKGROUND
Department received a referral on June 8, 2016, stating that
Trey, Ryleigh, and Drake were exposed to drugs and were
suffering from educational neglect, medical maltreatment,
lack of supervision, and psychological harm. Mother had left
the family home with the children and moved into a domestic
violence shelter after Father hit her and placed her in fear
for her safety. While living at the shelter, Mother obtained
a six-month order of protection against Father that also
covered the children. She informed a DCS employee that the
children had not been to a pediatrician in over a year. Trey,
the eldest child, was complaining of tooth pain while he was
at the shelter, and Mother told a DCS employee that none of
the children had ever seen a dentist. Trey was nearly seven
years old at that point and had never attended school. While
they were in the shelter, the children's immunizations
were brought up to date. Mother submitted to a drug screen on
June 20 and tested positive for methamphetamine, amphetamine,
and buprenorphine, and she admitted to using cocaine a few
Department removed the children from Mother's custody on
June 20 and filed a petition for temporary custody on June
21, 2016. The juvenile court granted the petition the day it
was filed and appointed a guardian ad litem on June 24, 2016.
The children were placed in a foster home shortly after their
removal. Mother and Father entered into a permanency plan
with DCS on July 7, 2016, and the juvenile court ratified the
plan on August 9. The permanency goal was reunification with
Mother and Father, and the target date was January 8, 2017.
The juvenile court held an adjudicatory hearing on September
27, during which both Mother and Father stipulated to the
children's dependency and neglect, and the court entered
an order on October 12, 2016, adjudicating the children
dependent and neglected.
and Father were working with DCS, their visits with the
children were going well, they were both passing drug
screens, and the children went on a trial home visit starting
in late May 2017. Mother and Father were living together
again by this time, and they had a new baby girl who was born
shortly before the trial home visit began. On July 6, 2017,
the children's home visit was terminated after Father was
arrested for manufacturing between ten and seventy pounds of
a Schedule VI controlled substance and Mother tested positive
for methamphetamine. The children returned to the foster home
where they were living before the trial home visit, and they
have lived there ever since.
termination of the home visit in early July, DCS created a
second permanency plan for Mother and Father dated July 28,
2017, which was ratified by the juvenile court on September
12, 2017. The permanency goals of this plan included
reunification with the parents and adoption, and the goal
target date was October 28, 2017. Mother's and
Father's responsibilities under this plan included
obtaining safe and stable housing, achieving financial
stability, being alcohol- and drug-free, maintaining good
mental health to enable them to parent the children
successfully, resolving all legal issues, and remaining
involved with the children while they were in the
was incarcerated on August 24, 2017, after disclosing to her
probation officer that she had used methamphetamine. She was
on probation from prior charges, and her drug use constituted
a violation of her probation. Mother remained incarcerated
until August 29, 2017. Mother underwent a hair follicle test
on the day of her release, which came back positive for
methamphetamine. Mother gave another hair sample on November
30, 2017, and that drug test also came back positive for
underwent a hair follicle test on August 31, 2017, and his
test came back positive for methamphetamine, cocaine,
benzoylecgonine, and THC. In September 2017, Father was
arrested and charged with domestic assault against Mother.
Mother refused to testify against Father in court, resulting
in the dismissal of that charge. Father was supposed to
provide a hair sample in November 2017, but he refused to
submit a sample when he learned that DCS requested a sample
from a location on his body other than his
Department filed its petition to terminate Mother's and
Father's parental rights to Trey, Ryleigh, and Drake on
December 20, 2017. The case was tried over a period of five
days, beginning on March 23, 2018, and ending on October 12,
2018. The juvenile court issued a very thorough final order
terminating Mother's and Father's parental rights to
the three children, finding that DCS proved by clear and
convincing evidence each of the grounds on which it based its
petition and that it was in the children's best interest
that Mother's and Father's rights be terminated.
STANDARD OF REVIEW
Tennessee Supreme Court has described the appellate review of
parental termination cases as follows:
An appellate court reviews a trial court's findings of
fact in termination proceedings using the standard of review
in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts
review factual findings de novo on the record and accord
these findings a presumption of correctness unless the
evidence preponderates otherwise. 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. The trial court's ruling that the
evidence sufficiently supports termination of parental rights
is a conclusion of law, which appellate courts review de novo
with no presumption of correctness. Additionally, all other
questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn.
2016) (citations omitted); see also In re Gabriella
D., 531 S.W.3d 662, 680 (Tenn. 2017).
termination of a parent's rights is one of the most
serious decisions courts make. As the United States Supreme
Court has said, "[f]ew consequences of judicial action
are so grave as the severance of natural family ties."
Santosky v. Kramer, 455 U.S. 745, 787 (1982).
"Terminating parental rights has the legal effect of
reducing the parent to the role of a complete stranger,"
In re W.B., IV, Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App.
Apr. 29, 2005), and of "severing forever all legal
rights and obligations of the parent or guardian," Tenn.
Code Ann. § 36-1-113(1)(1).
parent has a fundamental right, based in both the federal and
state constitutions, to the care, custody, and control of his
or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250
(Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174-75 (Tenn. 1996) (citing Nale v. Robertson,
871 S.W.2d 674, 678 (Tenn. 1994)); In re Adoption of
Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995)
(citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.
1993)). This right "is among the oldest of the
judicially recognized fundamental liberty interests protected
by the Due Process Clauses of the federal and state
constitutions." In re Carrington H., 483 S.W.3d
at 521 (citing U.S. Const. amend. XIV, § 1; Tenn. Const.
art. 1, § 8). While this right is fundamental, it is not
absolute. Id. at 522. The State may interfere with
parental rights in certain circumstances. Id. at
522-23; In re Angela E., 303 S.W.3d at 250-51. Our
legislature has listed the grounds upon which termination
proceedings may be brought. See Tenn. Code Ann.
§ 36-1-113(g). Termination proceedings are statutory,
and a parent's rights may be terminated only where a
statutory basis exists. In re Angela E., 303 S.W.3d
at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn.
2004); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.
2002); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998).
terminate parental rights, a court must find by clear and
convincing evidence the existence of at least one of the
statutory grounds for termination and that termination is in
the child's best interest. Tenn. Code Ann. §
36-1-113(c); In re Kaliyah S., 455 S.W.3d 533, 552
(Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). '"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 Carrington H., 483 S.W.3d
at 522 (quoting In re Bernard T., 319 S.W.3d 586,
596 (Tenn. 2010) (citations omitted)). "Evidence
satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly
probable." In re Audrey S., 182 S.W.3d 838, 861
(Tenn. Ct. App. 2005). As a reviewing court, we "must
'distinguish between the specific facts found by the
trial court and the combined weight of those
facts."' In re Keri C., 384 S.W.3d 731, 744
(Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228
S.W.3d 148, 156 (Tenn. Ct. App. 2007)). Then, we must
determine "whether the combined weight of the facts . .
. clearly and convincingly establishes all of the elements
required to terminate" a parent's rights.
Id. "When it comes to live, in-court witnesses,
appellate courts should afford trial courts considerable
deference when reviewing issues that hinge on the
witnesses' credibility because trial courts are
'uniquely positioned to observe the demeanor and conduct
of witnesses.'" Kelly v. Kelly, 445 S.W.3d
685, 692 (Tenn. 2014) (quoting State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000)).
ground for termination is established by clear and convincing
evidence, the trial court or the reviewing court conducts a
best interests analysis. In re Angela E., 303 S.W.3d
at 251. "The best interests analysis is separate from
and subsequent to the determination that there is clear and
convincing evidence of grounds for termination."
Id. at 254. The existence of a ground for
termination "does not inexorably lead to the conclusion
that termination of a parent's rights is in the best
interest of the child." In re C.B.W., No.
M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App.
June 26, 2006).
Grounds for Termination
Abandonment by Wanton Disregard (Mother and Father)
ground for termination that DCS asserted against both Mother
and Father was abandonment by incarcerated parent and conduct
prior to the incarceration showing a wanton disregard for the
children pursuant to Tenn. Code Ann. §§
36-1-113(g)(1) and 36-1-102(1)(A)(iv). Tennessee Code
Annotated section 36-1-102(1)(A)(iv) defines
"abandonment," in pertinent part, as:
A parent or guardian is incarcerated at the time of the
institution of an action or proceeding to declare a child to
be an abandoned child, or the parent or guardian has been
incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or
proceeding, and . . . the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child. . . .
parent who was incarcerated during all or part of the four
months immediately preceding the filing of the termination
petition can abandon his or her children by engaging in
conduct prior to the incarceration that shows a "wanton
disregard" for the children's welfare. The
Department filed the termination petition on December 20,
2017, with the result that the relevant four-month period
began on August 20 and ended on December 19, 2017. See In
re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL
689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that
statutory four-month period covers four months ending on day
before termination petition is filed).
statute does not define "wanton disregard." In
re H.A.L., No. M2005-00045-COA-R3-PT, 2005 WL 954866, at
*6 (Tenn. Ct. App. Apr. 25, 2005). Tennessee courts have held
that "probation violations, repeated incarceration,
criminal behavior, substance abuse, and the failure to
provide adequate support or supervision for a child can,
alone or in combination, constitute conduct that exhibits a
wanton disregard for the welfare of a child." In re
Audrey S., 182 S.W.3d at 867-68. "Our courts have
consistently held that an incarcerated parent who has
multiple drug offenses and wastes the opportunity to
rehabilitate themselves by continuing to abuse drugs,
resulting in revocation of their parole and reincarceration,
constitutes abandonment of the child, and demonstrates a
wanton disregard for the welfare of the child."
Dep't of Children's Servs. v. J.M.F., No.
E2003-03081-COA-R3-PT, 2005 WL 94465, at *7 (Tenn. Ct. App.
Jan. 11, 2005) (citing In re C.T.S., 156 S.W.3d 18,
25 (Tenn. Ct. App. 2004); Dep't of Children's
Servs. v. J.S., No. M2000-03212-COA-R3-JV, 2001 WL
1285894, at *3 (Tenn. Ct. App. Oct. 25, 2001); In re
C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000);
G.M.C. v. A.V.I., No. E2000-00134-COA-R3-CV, 2000 WL
1195686, at *5-6 (Tenn. Ct. App. Aug. 23, 2000);
Dep't. of Children's Servs. v. Wiley, No.
03A01-9903-JV-00091, 1999 WL 1068726, at *7 (Tenn. Ct. App.
Nov. 24, 1999)).
enactment of Tenn. Code Ann. § 36-1-102(1)(A)(iv)
reflects the General Assembly's recognition that
"parental incarceration is a strong indicator that there
may be problems in the home that threaten the welfare of the
child" and that "[i]ncarceration severely
compromises a parent's ability to perform his or her
parental duties." In re Audrey S., 182 S.W.3d
at 866. "The actions that our courts have commonly found
to constitute wanton disregard reflect a 'me first'
attitude involving the intentional performance of illegal or
unreasonable acts and indifference to the consequences of the
actions for the child." In re Anthony R., No.
M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App.
June 9, 2015).
are not limited to the four-month period preceding a
parent's incarceration to determine whether the parent
has engaged in conduct evidencing a wanton disregard for his
or her children's welfare. Id. at *2; In re
F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077, at
*3 (Tenn. Ct. App. Apr. 11, 2016); see also Dep't of
Children's Servs. v. Hood, 338 S.W.3d 917, 926
(Tenn. Ct. App. 2009) ("parental conduct exhibiting
wanton disregard for a child's welfare may occur at any
time prior to incarceration and is not limited to acts
occurring during the four-month period immediately preceding
the parent's incarceration"). Incarceration itself
is not grounds for the termination of a parent's rights,
but courts consider the incarceration a "triggering
mechanism that allows the court to take a closer look at the
child's situation to determine whether the parental
behavior that resulted in incarceration is part of a broader
pattern of conduct that renders the parent unfit or poses a
risk of substantial harm to the welfare of the child."
In re Audrey S., 182 S.W.3d at 866.
concluding that DCS proved this ground against Mother by
clear and convincing evidence, the trial court wrote:
The proof is undisputed Mother was incarcerated on a
probation violation in Williamson County (for a 2014 felony
drug conviction) from August 24-29, 2017, for a positive drug
screen for methamphetamine and three additional new charges
in multiple other jurisdictions (Davidson and Sumner
Mother testified she was also on probation in Fairview and
Cheatham County. She was unable to get her driver's
license because of her inability to pay all the court costs
and fines due to her criminal behavior. She tested positive
for methamphetamine while the children were on a trial
home visit. Although she denied knowledge Father was
growing marijuana plants at home, there was contradictory
evidence from the children that Mother would help water the
plants. It was the family's "secret garden."
Mother admitted the children suffered from medical neglect
for dental work. They had never been to the dentist. The
testimony was the children's teeth were rotting out
causing extensive dental work requiring anesthesia. She said
she was incarcerated at the time and Father had the children.
When she got out of jail, she did not have transportation.
She admitted to several years of drug abuse including
cocaine, opiates and meth. She had some treatment in 2012 but
did not ever complete a program. She would use every four to
five months when she would break up with Father. She was in
suboxone treatment off and on since 2012. Her substance abuse
treatment was sporadic at best.
. . . .
Mother admitted stress is her trigger to relapse. She
testified she was overwhelmed during the trial home visit and
unable to manage the children despite frequent visits from
DCS, CASA and foster mother.
admitted at trial that she was incarcerated from August 24
through 29, 2017, which was during the relevant four-month
period of August 20 to December 19, 2017. She was
incarcerated for violating her probation by using illegal
drugs. Mother's criminal history goes back to 2012, when
she was convicted of simple possession. Mother explained that
she was abusing medicine for which she had a prescription.
She was also charged with prescription fraud and criminal
impersonation in 2014 or 2015. Mother used methamphetamine
after Father was arrested in July 2016, while the children
were with her on their trial home visit. Mother was on
probation at the time, and her drug use constituted a
violation of her probation.
criminal history is intertwined with her substance abuse.
Mother testified that her drug use began six years before
trial, in 2012. Initially, Mother's use was limited to
Oxycodone and Opana. Mother testified that she sought
treatment for her drug abuse beginning in 2012 or 2013, when
she went to "detox off the pain pills." She was
clean for about three years, but then she started using
cocaine. Mother was asked how often she used, and she
I was - - mostly I would binge. Like, if we would break up. I
would go to [a friend's] house, and that's when I
would use. So maybe once every four or five months.
then admitted to using methamphetamine "a couple of
times" starting in 2017. When the children were placed
into DCS custody in June 2016, Mother submitted to a drug
screen that was positive for methamphetamine, amphetamine,
and buprenorphine. Mother was surprised the test showed
anything other than cocaine:
I - - I told them that when they - - when they took the kids
that I don't know why it showed up for [meth], because it
was cocaine that I used. I - - I told them it was cocaine,
and that's what it was, or at least that's what I
thought it was.
explained that she relapsed around the time she lost custody
of the children. She then went back into treatment and
completed a twenty-eight-day program between July and August
2016. Mother testified that she went to an outpatient clinic
every other week to get Suboxone, which helped with her prior
addiction to opiates, and saw a therapist once a month.
denied that alcohol had been a problem for her, yet she
testified that she "drank too much" one night in
September 2017 when Father was arrested outside her house and
charged with domestic abuse. When asked what transpired that
night leading up to Father's arrest, Mother responded
that she did not "really remember that night much"
because she "had a lot to drink." Mother testified
that the children had witnessed arguments between her and
Father and that her daughter witnessed Father's physical
abuse of Mother that led Mother to seek a restraining order
evidence revealed that Mother was not taking proper care of
the children's medical and/or dental needs before they
entered the State's custody. None of the children had
ever been to a dentist, and they all had serious problems
with their teeth when they entered DCS custody. They were
also behind on their immunizations when they went with Mother
to the shelter in June 2016. Trey was nearly seven years old
when the children were removed from Mother's care, yet he
had never been to school. The foster mother testified that
Trey did not know how to hold a pencil and could not identify
letters of the alphabet.
the evidence clearly and convincingly shows that Mother
abandoned the children by engaging in conduct prior to her
incarceration that exhibited a wanton disregard for her
children's welfare. As this Court has said, probation
violations, criminal behavior, substance abuse, and the
failure to provide properly for the children constitute the
sort of conduct that exhibits a wanton disregard for the
children's welfare. See In re Audrey S., 182
S.W.3d at 867-68.
concluding that DCS proved this ground against Father by
clear and ...