Session May 20, 2019
from the Juvenile Court for Hamblen County No. J170015 Janice
H. Snider, Judge
S. ("Father") and Kimberly T. ("Mother")
appeal the August 27, 2018 order of the Hamblen County
Juvenile Court ("Juvenile Court") terminating their
parental rights to the minor child, Joshua S. ("the
Child"). Upon petition of the Tennessee Department of
Children's Services ("DCS"), the Juvenile Court
terminated the parents' rights on the grounds of
substantial noncompliance with the permanency plan and
failure to manifest an ability and willingness to assume
custody or financial responsibility for the Child. The
Juvenile Court also terminated Mother's parental rights
on the ground of persistent conditions and Father's
parental rights on the ground of abandonment by wanton
disregard. Upon its determination that grounds existed to
terminate the parents' rights to the Child, the Juvenile
Court determined that termination of both parents' rights
was in the best interest of the Child. Discerning no error,
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
Whitney Bailey, Kingsport, Tennessee, for the appellant,
T. Eidson, Rogersville, Tennessee, for the appellant,
Herbert H. Slatery, III, Attorney General and Reporter, and
Jordan K. Crews, Assistant Attorney General, for the
appellee, the Tennessee Department of Children's
Michael Swiney, C.J., delivered the opinion of the court, in
which Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ.,
MICHAEL SWINEY, CHIEF JUDGE
January 31, 2017, the Juvenile Court entered an order
removing the Child from Mother's custody and placing the
Child into the custody of DCS, following an altercation that
occurred at the home where Mother was residing. At the
adjudicatory and dispositional hearing on March 22, 2017,
both Mother and Father waived their adjudicatory hearing,
stipulating that the Child was dependent and neglected due to
Mother's "drug abuse and lack of supervision"
and Father's "homelessness, lack of employment, and
unavailability." The Juvenile Court ordered that the
Child would remain in the legal and physical custody of DCS.
March 22, 2017, the Juvenile Court entered an order
establishing the Child as "the legitimate child of
[Father]." The Child remained in DCS custody until
January 31, 2018, when DCS filed its petition to terminate
the parental rights of Mother and Father to the Child. The
case proceeded to trial on June 27, 2018, in which testimony
was proffered from April Hensley, the child's DCS case
manager; Mother; and the foster parent.
trial, Ms. Hensley testified regarding the development of the
permanency plan on February 13, 2017. The permanency plan
required that both Mother and Father obtain and maintain
stable housing, complete parenting classes, resolve all
pending legal issues, refrain from incurring new criminal
charges, obtain and maintain a legal source of income,
complete a mental health assessment and all recommendations
therefrom, and develop an appropriate daycare plan if the
Child is placed in their care. Additionally, Father would
need to establish paternity of the Child. Mother was also to
comply with random drug screens and pill counts and complete
an alcohol and drug assessment and follow all
Hensley testified that it was sometimes difficult to contact
Mother because Mother changed her phone number several times.
Ms. Hensley testified that Mother lived with the maternal
grandmother throughout a majority of the case. Ms. Hensley
stated that she had concerns with grandmother's own drug
issues. According to Ms. Hensley, the grandmother had tested
positive for different substances in the past and had
provided her with only an outdated prescription for some of
the substances. Ms. Hensley also testified that the initial
stabbing incident, which ultimately led to the Child's
removal, occurred at the grandmother's home.
Hensley testified that she submitted an application for
funding to cover the expense of a mental health assessment,
alcohol and drug assessment, and parenting assessment for
Mother. Those requests were approved for funding to allow
Mother to receive services. Mother completed her parenting
assessment on July 24, 2017, with Omni Community Health. The
assessment recommended that case management assist Mother in
establishing stability and finding acceptable housing. The
assessment further recommended that Mother complete eight
hours of parenting classes, medication management classes,
drug education classes with a focus on relapse prevention,
and six hours of individual therapy. According to Ms.
Hensley, Mother did not complete parenting classes. Ms.
Hensley testified that she found Mother a parenting education
class with Broken Arrow that Mother could attend for free.
Ms. Hensley testified that she assisted Mother in scheduling
an appointment with Broken Arrow, but to her knowledge,
Mother had not attended the parenting education class.
also completed her mental health assessment with Covenant
Counseling and Consultation Services ("CCS") on
January 29, 2018. The assessor observed that Mother appeared
to be engaged throughout the interview and answered the
questions to the best of her ability. Following the
interview, the assessment recommended that Mother complete an
alcohol and drug assessment and attend intensive outpatient
treatment for "co-occurring treatment regarding
addiction, grief and depressive symptoms." The
assessment stated that counseling and medication management
may assist Mother with her depression and anxiety. In the
assessment, the assessor also instructed that the counseling
Mother received should address parenting and coping skills
and educate Mother regarding community resources.
trial, Ms. Hensley was unable to recall the date of
Mother's alcohol and drug assessment, but a letter from
the services coordinator at New Hope Recovery Center stated
that Mother had attended a "pre-screening"
appointment on March 6, 2017, which had consisted of a
clinical alcohol and drug assessment. The letter further
stated that intensive outpatient treatment had been
recommended for Mother. According to Ms. Hensley, Mother
subsequently attended an intake appointment on March 13,
2017. Ms. Hensley explained that Mother attended intensive
outpatient treatment through Health Connect, but Mother's
services were discontinued after Mother failed to comply with
treatment. Ms. Hensley testified that on July 18, 2017, she
asked Mother to go to a rehab facility, but Mother declined,
stating that she did not need rehab.
record reflects that Mother failed several drug screens from
March 2017 to September 2017. On March 24, 2017, Mother
tested positive for THC, methamphetamine, amphetamines, and
methadone. On April 19, 2017; April 27, 2017; and June 30,
2017, Mother was positive on a drug screen for THC. On June
22, 2017 and September 7, 2017, Mother tested positive for
methamphetamine, amphetamines, and THC. Mother failed to
comply with a drug screen request from Ms. Hensley on
September 14, 2017, admitting that she would fail.
entered residential treatment at CCS for her alcohol and drug
issues on October 5, 2017. The residential treatment Mother
received at CCS consisted of "Integrated Services for
Substance Abuse and Mental Health Problems." Mother
ultimately completed that treatment and was discharged on
November 2, 2017. Upon Mother's release from CCS, Mother
was instructed to attend parenting classes and aftercare
appointments soon after her release from CCS in order to
"keep [Mother] focused on her recovery and to get her
the therapy and potential medication she needs." The CCS
aftercare plan also recommended that Mother attend AA/NA
meetings regularly and obtain a sponsor. Ms. Hensley
testified that she assisted Mother in setting up the
follow-up intensive outpatient treatment at Health Connect
America on April 12, 2018. Prior to that time, Ms. Hensley
stated that she provided Mother with a list of places where
she could attend group therapy and AA/NA meetings prior to
getting Mother into her intensive outpatient treatment.
Hensley provided Mother with drug screens after her discharge
from CCS. Mother tested positive for THC on December 8, 2017.
Mother tested positive for amphetamines, methamphetamine, and
THC on December 19, 2017. According to Ms. Hensley, Mother
stated that she had been sick and had been taking
"night-time medication." Specifically, Ms. Hensley
testified that Mother informed her that Mother had taken
"night-time Nyquil" for two days and
"acetaminophen PM" for five days due to
"sinuses and a headache." Mother was provided
another drug screen on January 29, 2018, at which time she
tested positive for amphetamines, methamphetamine, and THC.
Ms. Hensley testified that following the January 29, 2018
drug screen, Ms. Hensley had contacted Mother for a drug
screen "several times," but she was unable to get
Mother to come into the DCS office. The record reflects three
occasions when Mother refused a drug screen, occurring on May
22, 2018; May 31, 2018; and June 20, 2018. On May 31, 2018,
while Mother was in Hamblen County Jail, Ms. Hensley
attempted to obtain a hair follicle drug screen from Mother,
but Mother refused.
2018, Mother was arrested on drug-related charges and found
guilty of possession of a schedule six drug and possession of
drug paraphernalia. Mother was found to be guilty of those
charges and sentenced to eleven months and twenty-nine days
probation. Mother last visited the Child on June 20, 2018,
and had consistently visited the Child throughout the case.
Ms. Hensley acknowledged that the visits between Mother and
the Child went well.
Hensley testified that she had difficulty contacting Father
throughout the case. Father was residing in Florida when the
Child was placed into DCS custody. In early March, Father
came to Tennessee, and Ms. Hensley met with Father on March
29, 2017. Father was living different places from March to
August of 2017. During that time, Ms. Hensley stated that she
was mostly trying to locate Father. Ms. Hensley was able to
locate Father on August 3, 2017, while he was incarcerated in
the Hamblen County Jail. Father pled guilty on August 3,
2017, to possession of a schedule two drug and joyriding. Ms.
Hensley later located Father incarcerated again on October 5,
2017, at which time Father entered a guilty plea to
disorderly conduct and criminal impersonation. Father
subsequently pled guilty on October 18, 2017, to theft.
Hensley explained that while Father was incarcerated, she was
able to schedule a clinical mental health assessment that
included an alcohol and drug component. The assessment was
scheduled for November 6, 2017, but Father was released from
jail before they could provide the service. Father
subsequently was incarcerated in Polk County, Florida from
December 25, 2017, through January 30, 2018. He was
transferred from Florida back to Hamblen County Jail where he
has remained since that time. Ms. Hensley testified that she
met with Father two times since the filing of the termination
petition on January 31, 2018.
Hensley testified that she visited Father in jail on April
19, 2018, in order to get Father to sign paperwork. According
to Ms. Hensley, Father refused to sign the paperwork and
became aggressive and upset, which resulted in the visit
ending prematurely. Ms. Hensley explained that Father was
"very aggressive" in the conversations she had with
him, and he would inform Ms. Hensley that he did not need her
to tell him how the system worked. Ms. Hensley stated that
she was unaware Father had an appointed attorney until
recently and had not contacted Father's attorney when
communication with Father broke down. Ms. Hensley
acknowledged that Father had been in foster care as a child.
Hensley testified that Father had established paternity of
the Child but had not completed any other requirements on his
permanency plan. According to Ms. Hensley, Father had visited
with the Child three times since the Child had been in DCS
custody, and he had not visited since April 20, 2017. Ms.
Hensley acknowledged that the visits went well, that Father
appeared to have a bond with the Child, and that Father
parented appropriately during those visits. Ms. Hensley
testified that she did not observe the Child to be scared of
Father during visits.
Hensley testified that she spoke to Father regarding his
housing situation and his job status. Because Father informed
her that he had injured his back, Ms. Hensley spoke with him
about applying for disability benefits. However, Father did
not have a driver's license, birth certificate, or social
security card. Ms. Hensley acknowledged that she did not
assist Father in obtaining this documentation.
failed three drug tests in March and April 2017 for THC.
Father also tested positive for oxycodone during the April
19, 2017 drug test. According to Ms. Hensley, Father had
informed her that he had a prescription for the medication
but never provided her with proof of that prescription. Ms.
Hensley testified that she tried getting Father to go to the
MATS shelter at one point but that Father had told her that
you had to be clean to get into MATS, and he was not clean.
She also stated that she referred Father to other local
shelters until they could find something more permanent.
Hensley met with Mother on December 8, 2017. Ms. Hensley
testified that Mother had informed her of an incident that
occurred between Mother and Father when Father kidnapped
Mother and drove her to Florida. According to Ms. Hensley,
Mother described Father choking her, slamming her head into a
window, knocking her out, and driving her to Florida. Mother
told Ms. Hensley that Mother and Father had a car accident on
the way to Florida, and Mother was able to escape at that
time. Mother told her that the incident had happened
recently, and she had just returned from Florida on December
Hensley testified that the Child likes his current foster
home, where he had resided for nearly six months at the time
of trial. According to Ms. Hensley, the foster parents are
interested in adopting the Child. Ms. Hensley testified that
another option for permanency for the Child was with his
maternal grandfather in Florida who also wishes to adopt the
Child. According to Ms. Hensley, the process for approval of
the grandfather's home had been initiated pursuant to the
Interstate Compact on the Placement of Children.
Child's current foster mother, A.B. ("Foster
Mother"), testified that the Child had been in her home
since January 12, 2018. Her husband and another foster child
also reside in the home. Foster Mother testified that she
would like to adopt the Child if that became an option.
According to Foster Mother, the Child had "trauma based
issues," for which he was in counseling but that the
Child was doing very well overall. When asked to explain the
Child's "trauma based issues," Foster Mother
explained that the Child is afraid of many things, including
violence. According to Foster Mother, the Child told her that
he had observed violence in the home with his Mother and
Father. The Child had stated to Foster Mother that Mother had
been stabbed, which the Juvenile Court admitted only for
consideration of the Child's state of mind. The Child had
expressed a fear of weapons and of someone breaking into
their home and hurting him. Foster Mother testified that the
Child also asked whether Father would have access to his
weapons when he is released from jail or whether they
remained in the shed.
testified at trial that she had been living with a family
friend for two and a half weeks that she met after she was
released from rehab. She stated that she had not informed Ms.
Hensley of her current living situation because she had only
talked briefly with her since she got out of jail on June 12,
2018. Mother testified that she currently is looking for
employment and had an interview scheduled for the following
day. Mother had paid $10 per week for child support for the
Child according to an agreement with the State of Tennessee.
She proffered a letter from the Department of Human Services
that stated she is current with her child support.
explained that she refused to comply with the May 31, 2018
hair follicle drug screen while incarcerated because the
facility was nasty, her hair is very long, she had been
sleeping on a small mat on the floor, her hair had been
touching things in the facility, and she was in jail with
many other people with drug problems. On the refused May 22,
2018 drug test, Mother claims that she never personally spoke
with Ms. Hensley. On June 20, 2018, she refused a drug screen
because she had admitted to Ms. Hensley that she would fail
it for THC and did not want to get in trouble with probation.
stated that Ms. Hensley had not provided her with contact
information or any literature on Broken Arrow, and if she
had, she would have already completed the classes. Mother
testified that Ms. Hensley had not provided her any
assistance in seeking appropriate housing.
trial, the Juvenile Court entered an order on August 27,
2018, terminating Mother's and Father's parental
rights to the Child. The Juvenile Court found that clear and
convincing evidence supported termination of Mother's
parental rights on the grounds of substantial noncompliance
with the permanency plan, persistence of conditions, and
failure to manifest an ability and willingness to assume
custody or financial responsibility for the Child. The
Juvenile Court also found that clear and convincing evidence
existed to support the grounds of substantial noncompliance
with the permanency plan, failure to manifest an ability and
willingness to assume custody or financial responsibility for
the Child, and abandonment by wanton disregard against
Father. Applying the same clear and convincing standard, the
Juvenile Court determined that termination of both
parents' rights was in the Child's best interest.
Specifically, the Juvenile Court found and held as follows:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
[The Child] was removed from his mother's home into DCS
custody on January 31, 2017, following an incident in the
mother's home on January 20, 2017, wherein the mother and
an uncle were allegedly stabbed by another female in the home
who was high on methamphetamine. [The Child] did not witness
the stabbing but was present in the home when it occurred. It
was further alleged that law enforcement also found another
female sleeping in another bedroom along with a plethora of
illicit drugs under her bed. The child's mother tested
positive for THC, benzodiazepines, methamphetamine and
amphetamine. The child's father was not in the home and
is believed to have been in Florida at the time.
Following his removal into state custody [the Child] was in
placed in a D.C.S. foster home, where he remains to this
* * *
SUBSTANTIAL NON-COMPLIANCE WITH PERMANENCY PLAN
(Applies to both parents)
T.C.A. §36-1-113(g)(2) and §37-2-403(a)(2)
* * *
Both parents attended the adjudicatory hearing on March 22,
2017, and stipulated dependency and neglect due to the
mother's drug abuse and lack of supervision of her child,
and the father's homelessness, unemployment and
unavailability to care for his child.
The initial Permanency Plan in this case was created on
February 13, 2017, and gave [Mother and Father] until August
13, 2017, to complete the plan steps toward reunification
with a parent or a relative placement. This plan required the
parents to complete the following steps designed to remedy
the conditions for removal and reunify this family:
1. Parents were to complete an alcohol and drug assessment
and follow all recommendations of same.
2. Parents were to pass all drug screens and pill counts.
3. Both parents were to obtain/maintain safe and stable
4. Both parents were to complete parenting classes.
5. Parents were to resolve their legal issues in the criminal
justice system and refrain from incurring new charges.
6. Parents were to complete a mental health evaluation and
follow all recommendations of that evaluation.
7. Parents were to devise and implement an appropriate day
care plan if child was returned to them at a time when they
8. Parents were required to maintain a legal source of
9. [Father] was to take all steps to establish paternity of
This Court finds that the requirements of the permanency plan
for the parents were reasonably related to the grounds for
removal and the goal of the parents achieving a stable
lifestyle free of criminal activity and substance abuse which
would permit re-unification with their child. The Court
specifically finds that [DCS] has complied with the
requirements of T.C.A. §37-2-403(a)(1)(B)(ii)
in this case.
The mother attended the permanency plan ratification hearing
on May 15, 2017, and she was provided a copy of the Criteria
for Termination of Parental Rights on that date. She voiced
no objection to any of the plan steps or responsibilities
assigned to them. The father did not attend the permanency
hearing and did not sign or approve the permanency plan. He
was represented by counsel at the permanency ...