IN RE NICHOLAS C. ET AL.
Assigned on Briefs June 3, 2019
from the Juvenile Court for Cocke County No. CU-05441 Brad
Lewis Davidson, Judge
trial court terminated the parental rights of Mother and
Father to their four children on the grounds of abandonment
by failure to visit, substantial noncompliance with the
permanency plan, and failure to manifest the ability and
willingness to assume custody of the children. On appeal, we
conclude that there is clear and convincing evidence to
support all three grounds as well as the trial court's
best interest determination. We, therefore, affirm the trial
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Arthur Cole, Seymour, Tennessee, for the appellant, Jason
Thomas Logue, Newport, Tennessee, for the appellant, Carol
Herbert H. Slatery, III, Attorney General and Reporter, and
Amber L. Seymour, Assistant Attorney General, for the
appellee, Tennessee Department of Children's Services.
D. Bennett, J., delivered the opinion of the Court, in which
John W. McClarty and Carma D. McGee, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
L.G. ("Mother") and Jason B.C. ("Father")
(collectively, "Parents") are the parents of four
children: Nicholas, born in 2005; Tiffany, born in 2008;
Skylar, born in 2010; and Airies, born in 2012. The
Department of Children's Services ("DCS" or
"the Department") first became involved with the
family in May 2015 after seven-year-old Tiffany drew a
picture at school of male genitalia and made comments about
the drawing suggesting sexual abuse. The Department's
investigation revealed that the entire family was living in a
motel room with two queen-size beds. The children were
removed from Parents' custody and, on December 3, 2015,
Parents waived their rights to an adjudicatory hearing and
the juvenile court found the children to be dependent and
neglected. The trial court's order stated that Parents
"may have supervised, therapeutic visitation at the
discretion of the therapist."
previous petition to terminate the parental rights of Mother
and Father was denied by the trial court, but the children
remained in DCS custody. The Department met on December 19,
2017, to develop a new permanency plan to address the issues
that Mother and Father needed to resolve. Neither parent
attended this meeting. Mother's attorney attended the
meeting, but Father's attorney did not. The goals of the
permanency plan were the return of the children to their
parents or adoption. The plan was ratified by the trial court
on February 15, 2018.
Department filed the current petition to terminate
Mother's and Father's parental rights to Nicholas,
Tiffany, Skylar, and Airies on August 24, 2018. The petition
asserts three grounds for termination applicable to both
parents: abandonment by failure to visit pursuant to Tenn.
Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i);
substantial noncompliance with the permanency plan pursuant
to Tenn. Code Ann. §§ 36-1-113(g)(2) and
37-2-403(a)(2); and failure to manifest the ability to parent
pursuant to Tenn. Code Ann. § 36-1-113(g)(14).
trial court held a hearing on January 8, 2019. The first
witness to testify for the Department was Robert Rouleau, the
children's case manager for the entire three and a half
years they had been in DCS custody. He stated that, during
the four-month period prior to the filing of the termination
petition (April 24 through August 23, 2018), Parents did not
visit the children or contact him for visitation. Neither
parent had visited the children at any point during their
time in DCS custody, which began in 2015. Mr. Rouleau stated
that Parents' visitation was at the discretion of their
children's therapists, and that no therapist had
recommended that the children have contact with Mother or
Father. The children had seen several therapists.
Rouleau testified that, between April 24 and August 23, 2018,
neither Mother nor Father contacted him at all. He stated
that he had received no voice mails from either of them, and
that he may have received one text message. Mother and Father
had not come to the DCS office to see Mr. Rouleau. Mr.
Rouleau testified that his last contact with Parents was at
the previous termination hearing in October 2017. Thereafter,
on December 14, 2017, he texted them about the permanency
plan meeting scheduled for December 19, 2017. Mr. Rouleau
I got a text from [Father] on the 20th that said
that from now on to go through their attorneys for any
meetings and contact, because he was going to the Justice
Department to sue the crooked DCS and the Court System in
Newport. Something like that.
that text, Mr. Rouleau stated, he avoided contacting Parents
directly. He further testified:
Just to back that up, Ms. Lawson, who was the attorney for
[Mother] back then, had contacted me probably a week or two
after that and told me that the parents-that the mother told
her she did not know about the [permanency plan] meeting.
Which I then told her that I texted all three phone numbers
that I had for her and that I was told not to contact them
anymore except through their attorneys. And Ms. Lawson did
tell me that she said that [Mother] did tell her that they
did want me to go to the attorneys from now on. So at that
point I did not contact the parents.
about the steps Parents were to take to gain visitation, Mr.
Rouleau stated that they were to engage with the
children's therapists and perhaps eventually participate
in family therapy if and when the therapist felt it was
appropriate. Parents never informed him that they had
contacted any of the therapists. Mr. Rouleau provided their
attorneys with the therapists' contact information, but
he did not know if the attorneys contacted Mother and Father
to give them the information.
Rouleau stated that he provided Parents' attorneys with
copies of the permanency plan. To the best of his knowledge,
Parents had not completed the requirements of the permanency
plan. Mother had not inquired about vocational
rehabilitation, completed a parenting assessment, maintained
contact with DCS twice a month, developed a plan to address
the children's sexually reactive behaviors, paid child
support, made arrangements for continuing therapy or inquired
about the children's therapy needs, engaged in the
children's therapeutic process, or provided proof of a
driver's license or car insurance. Mother had signed
releases. At the time of the permanency plan, Parents stated
that they had housing, but Mr. Rouleau did not know if they
had stable housing at the time of trial. He thought Mother
had been "getting a check" and assumed that she
continued to receive that money. As to Father, Mr. Rouleau
testified that he had not maintained contact with DCS twice a
month, developed a safety plan regarding the children's
sexually reactive behavior, paid child support, made
arrangements for continuing therapy, participated in
medication management, participated in therapy to address his
victim status, engaged in the children's therapeutic
process, or provided proof of a driver's license or car
insurance. Father was also receiving a check, so he had some
income. Parents had a vehicle at one point, but Mr. Rouleau
did not know if they had it at the time of trial.
the third ground for termination, failure to manifest an
ability to parent, Mr. Rouleau testified that he became
concerned about Parents' housing situation when he saw a
Go Fund Me page posted in November 2018 asking for help with
rent. Parents were also seen on a street corner asking for
help. Prior to the first termination hearing (in October
2017), Parents had given Mr. Rouleau gifts for the children,
but they had not done so since that hearing. Mr. Rouleau was
not aware of any cards Parents sent for the children.
time of the hearing, Nicholas was in a residential facility,
and DCS was looking for a foster home. Tiffany had just been
placed in a pre-adoptive home with Youth Villages. Airies was
in a pre-adoptive Smoky Mountain Children's home, and
Skylar had recently been moved to a pre-adoptive home through
Smoky Mountain. Asked why the children were placed
separately, Mr. Rouleau explained:
In the beginning, they were all four together. Tiffany had
some sexual reactive behavior with Airies. So at that point
we separated Tiffany from the three boys.
A little while after that probably-probably a couple of
months, Skylar had some sexual reactive activity with Airies.
So at that point, Airies was separated from Skylar and
Nicholas and Skylar did stay together for a while until
Nicholas was having some issues in the foster home and
that's when he went to residential placement.
Department had approved the adoption of the four children
separately. It would not be safe for them to be in the same
environment without a safety plan, including separate
bedrooms and "probably alarms on the doors to hear if
anybody is getting out in the middle of the night." Mr.
Rouleau stated: "They would have to be watched almost
round-the-clock when together."
Rouleau opined that it was in the children's best
interest that Mother's and Father's parental rights
be terminated and that the children have no further contact
cross-examination, Father's attorney questioned Mr.
Rouleau about the text messages he sent on December 14, 2017,
to the three telephone numbers he had for Parents to notify
them of the permanency plan meeting on December 19, 2017. Mr.
Rouleau acknowledged that he did not receive any response
from Parents. When asked if he had inadvertently hung up on
anyone, Mr. Rouleau recalled about two weeks prior to the
hearing when he was on the phone with Nicholas's
residential facility and the facility requested a number for
Parents. He remembered clicking onto one of Parents'
names to open the contact and initiating a call by mistake,
which he quickly ended. Maybe thirty minutes later, he
received a call from the number he had inadvertently called,
presumably because they saw a call from Mr. Rouleau. He did
not answer because of the previous request to communicate
through their attorneys.
attorney stated that he did not have a record of receiving a
copy of the permanency plan until the ratification hearing in
February 2018. At that hearing, Father's and Mother's
attorneys objected to the plan's goal of adoption.
questioned by the guardian ad litem, Mr. Rouleau testified
that the children's behavior and school performance had
improved since they had been in DCS custody and had been
treated with therapy and medication.
next witness was Ashley Chitwood, a mental health therapist
through Omni Community Mental Health. She testified that she
was a licensed therapist in the State of Tennessee and had
worked as a therapist at Omni for seven and a half years. Ms.
Chitwood stated that she provided therapy for the three male
children in this case, Skylar, Nicholas, and Airies. Their
initial assessment was completed in July of 2015. Ms.
Chitwood had worked with Skylar consistently since 2015 until
his recent move to LaFollette, which was out of her service
area. The last time she met with Skylar was in the fall of
2018. Ms. Chitwood began seeing Nicholas when he was admitted
into the program in 2015 and continued seeing him into 2016;
after that, he was successfully discharged. Once Nicholas
returned in 2017, Ms. Chitwood was not his therapy provider.
Shortly thereafter, Nicholas was admitted to a residential
facility. With respect to Airies, Ms. Chitwood stated that
the child was "not very verbal" when admitted in
2015 and did not cooperate with therapy, "mostly due to
his age," she thought. She saw Airies in 2015 and 2016,
but his file was closed in 2016 "because he wasn't
cooperative." Airies also began receiving medication
management services from another company because Omni did not
treat children under the age of five for medication
management. Ms. Chitwood further testified that she saw
Airies and Skylar for family therapy in 2018.
Chitwood recalled writing a letter to the court in 2016 with
her recommendations concerning visitation. She described the
substance of her letter as follows:
I stated that due to the amount of time that had lapsed since
visiting with parents and continuing to work towards
stability with the kids, I didn't think it would be
appropriate for the children to have visits. But I did add a
clause in here that if the Court deemed it appropriate that
it be completed in a therapeutic setting.
Chitwood stated that she had no contact with either parent
during the three years she was involved with the case. She
had never received any messages from them. Ms. Chitwood
further stated that she had not been provided with any
contact information for Mother or Father, so she was unable
to initiate contact with them.
Skylar, Ms. Chitwood testified that she never reached a point
where she thought it would be appropriate for Parents to have
visitation. Skylar did not remember his parents. When asked
what she would have needed to see before she thought
visitation was appropriate, Ms. Chitwood stated:
A. Throughout the course of treatment with Skylar, he
struggled managing his emotions behaviorally, just complying
with general rules and expectations, coping with transitions.
He had a very difficult time anytime something was changed. I
would have needed to see that Skylar was going to maintain
stability, which he has now. But it's been-we've been
working with him for three years. And he is in a better place
now but-and then I would also hope that the parents were
going to be consistent and do the visits, however they were
scheduled, however that was going to occur. Q. Okay. If the
parents [had] tried to contact you early on and requested
information about being involved in his therapy, how would
you have responded to that?
A. I mean, I would have answered any questions they would
have had and been cooperative. I was told that they may be
calling me a couple of times last year. I was told that I
should be hearing from them. And I was told when I first
admitted them in 2015 that I may hear from them. But I
Chitwood was likewise asked to opine about Airies and whether
it was appropriate for him to have visitation with Parents.
A. Airies still hasn't-he still has a great deal of work
left to do as far as behavior and emotion regulation. He
still has outbursts. He's still receiving therapy weekly.
He just completed a more intensive program with us because of
his behavior and just helping him regulate himself and not be
so impulsive. He does not remember his parents at all. When I
ask him about them, the people that he said was his parents,
was his current foster mom and Derek, foster mom's
Q. Okay. If the parents had been in contact with you and
shown consistency, do you think it might have been possible
at some point to have them involved in therapy?
A. It would have for him, yes. But because he was so young
when he came into custody-it would have been better early on
for him. Because he doesn't have a lot of memories of
them now. . . . .
Q. Okay. Did any of their attorneys that have represented
them over the years get in contact with you?
A. Not that I'm aware of.
cross-examined by the guardian ad litem, Ms. Chitwood
testified that Skylar and Airies both had diagnoses of
attention deficit hyperactivity disorder (ADHD) and were both
taking medication. The boys' treatment plans focused on
anger, defiance, and aggression in the home. When the boys
first came into DCS custody, their therapists addressed
problems with food hoarding. She stated: "Most of what
has been worked on has been just following the rules,
listening, not being impulsive, thinking about things before
they do them." Ms. Chitwood further testified that all
three boys exhibited outbursts of anger. Skylar and Nicholas
"scratch[ed] themselves when they were angry if they
were placed in timeout or something of that nature." The
children also engaged in sexually reactive behaviors.
Nicholas was diagnosed with autism.
Chitwood observed a change in Nicholas's behavior during
the time she saw him. In the beginning, he was "very
shy, extremely anxious" and "had a lot of
nightmares." Medication for anxiety helped him
stabilize, but he began to regress and act out behaviorally
in 2017-cursing, yelling, refusing to obey his teachers,
fighting with Skylar. He was subsequently placed in a
residential facility. Skylar had improved over time; he was
better able to regulate his emotions and control his
impulses. He could function at school and comply with the
rules, whereas in the past he would engage in risky behavior
or blurt things out in the classroom.
Lewis, a former Omni therapist, testified that she worked
with Tiffany for about seven months in 2017. Tiffany had just
been released from residential care. She was "up and
down in her behaviors." She and Ms. Lewis were working
on developing her coping skills. Tiffany "started to
connect more with her foster parents, care more about the
rules and being more empathetic with others." Ms. Lewis
communicated with Tiffany's foster parents, never with
Mother or Father. She stated that, at the permanency plan
meeting in December 2017, she provided her contact
information to give to Parents so that she could meet with
them to assess whether family therapy would be appropriate
for Tiffany, but Parents never contacted her.
cross-examination, Ms. Lewis stated that Tiffany was having a
hard time coping in the home she was in at that time:
[S]he had been through many foster care situations and she
just couldn't cope in general. I don't think it was
specific to the home. Just specific to the nature of her
symptoms. She couldn't self-soothe. She couldn't cope
with her own mood. And not getting her way, she couldn't
calm herself down, things like that. . . . .
Oh, gosh. She was defiant. She was-she had-again, like I
can't speak to all of the things, because it has been a
year. But she had behavioral issues at school. . . . She had
boundary issues, physical boundary issues, not respecting
people's personal space, too comfortable with people, a
lot of things. She had some sexually reactive behaviors.
Things like that.
next witness, Melissa Smith, a resource coordinator at Omni,
worked with Tiffany from May 2017 through October 2018. Ms.
Smith attended the permanency plan meeting on December 19,
2017, and she recalled that she and Mr. Rouleau were going to
try to contact Parents but that "the parents had
requested for all communication to go through their
attorneys." Ms. Smith attempted to contact Mother and
Father at the three telephone numbers provided to her by Mr.
Rouleau. According to her testimony, "it was
disconnected whenever I attempted to contact them." Ms.
Smith was told "that the parents would be given the
therapists['] phone numbers as well as my phone number
from their attorneys and that they could contact us."
Ms. Smith testified that she contacted all three of
Parents' phone numbers between the December 19, 2017
meeting and the first of January 2018, but she never received
a call back from them. She was not able to leave a message at
any of the numbers (because they were disconnected).
Smith stated that the only contact she had with Parents was
at an IEP (individualized education plan) meeting at the
first of the 2017 school year. Mother called into the
meeting, and Ms. Smith heard her voice over the phone. Ms.
Smith's contact with Tiffany ended in October 2018 when
the child went to a new foster home.
Department called Rebekah Crass, who was Tiffany's foster
mother for a time as well as her mentor when she was in a
residential facility. Tiffany came to Ms. Crass's home in
June of 2016 for about a month and a half and then moved to
intensive residential treatment for nine months. Tiffany
returned to the Crass home from April 2017 through August
2018, and she then went to another foster home. Ms. Crass
explained that, initially, Tiffany exhibited "a lot of
issues with emotional dysregulation, physical aggression,
some sexual hyperreactivity, defiance." According to Ms.
Crass, Tiffany showed classic signs of trauma and abuse,
including bed-wetting and night terrors. Ultimately,
Tiffany's physical aggression led the team to decide that
she needed a higher level of care.
Tiffany returned to the Crass home after residential
treatment, Ms. Crass testified, a lot of the same behaviors
resurfaced, despite all of the work that had been done during
residential treatment. Although Tiffany improved in some
areas, Ms. Crass found her physical aggression and emotional
dysregulation especially challenging when Tiffany was in her
home. During Tiffany's time in residential treatment, the
Crass family had adopted a son, and Ms. Crass found it
difficult to maintain the safety of both Tiffany and her son.
The Department and the Crass family tried therapy, brain
mapping, and other interventions, but the team ultimately
decided to remove Tiffany from the Crass home in August 2018.
if she ever spoke to Mother or Father about Tiffany's
condition, Ms. Crass stated that there was a "no
contact" order under which she was asked not to have
contact with Tiffany's parents. She stated that Mother
and Father never attempted to contact her and that Mr.
Rouleau had never asked for an update regarding Tiffany to
provide to Mother and Father.
Crass stated that she had had contact with Tiffany since her
transfer to another foster home. Tiffany spent Christmas with
the Crass family and displayed "some typical defiant
behaviors." Ms. Crass testified that, in light of
Tiffany's history of "extensive trauma and
abuse," caution was necessary in placing her to prevent
"unsafe incidents with another child." When Tiffany
was living with Ms. Crass, there was an extensive safety plan
in place. Ms. Crass described the plan as follows:
A. [Tiffany's] behavioral plan at school required someone
to pick her up from the time we dropped her off and to
carry-not to carry her-but to escort her to every class. She
had to use a separate bathroom than other kids, escorted by a
teacher. She would have to be escorted to the bus stop and
she had a specific bus seat in which she would have to sit
until she arrived at our home. And that was due to previous
behaviors that she had at other schools.
Q. And in the home, could you can [sic] explain what that
safety plan was? A. Uh-huh. We were not allowed to have any
other long-term placements with her. We were never called for
other placements. Because she just-it is not an option to
have any other foster children with her. The exception for
our son was because he was in the process of being adopted by
us. . . . And he also slept in our room.
There were not to be any other children in her room, in the
bathroom with her. She was not allowed to have sleepovers
with other children or have any overnight contact with kids
or adults. She couldn't stay in our bedroom either. She
had to have a safe place to go whenever she was having her
physical aggression incidents.
cross-examination, Ms. Crass stated that Tiffany sometimes
lied, like any other child. She did not think that it was
possible that Tiffany lied to her in the disclosures she made
about sexual abuse. Tiffany "never recanted any of those
Stanley, the foster mother for Airies for the preceding three
years, testified that, when he first came into her home,
Airies was three years old. He was disruptive and exhibited
"a lot of anxiety issues" and anger issues.
According to Ms. Stanley, Airies "was just not
listening, basically." During the three years that
Airies had been in her home, the child had been in therapy
and was now on medication-Vyvanse for ADHD; Buspirone HCL for
anxiety; Remeron for sleep; and L-Methfolate Forte for low
folic acid to help him metabolize the medications. Ms.
Stanley had stopped working outside the home in order to
better care for Airies. She intended to adopt the child.
the time that Airies was in her home, Ms. Stanley had not had
any contact with Mother or Father. She understood that there
was a "no contact" order in place. She stayed in
contact with Airies's therapist about his progress. Upon
questioning by the guardian ad litem, Ms. Stanley testified
that Airies had calmed and become more focused since he
started on medication. She described him as "a totally
different child than from day one." In school, Airies
was "doing a lot better now that we have the right
medication for him."
was the next witness called by the Department, and she
admitted that she had not visited her children in three and a
half years. She was not incarcerated or hospitalized during
that time period. Mother stated that she attended court
hearings and that she attended DCS meetings if she knew about
them. She testified that, if she did not attend the meeting
on December 19, 2017, she did not know about it. When asked
if she knew about the meeting on December 19, 2017, Mother
stated: "I don't know." Mother identified the
phone number she was using on December 19, 2017, and stated
that the number was one that Mr. Rouleau had for her and that
she would have received a text message sent to that number.
Mother also identified Father's number, but denied having
a third number. According to Mother, both her number and
Father's number were active as of December 19, 2017, and
would not have been disconnected at that time:
Q. Okay. But neither one of them were tore up in December of
A. No. But it could be fixed. All you got to do is to switch
batteries from my phone and recharge it, and still it pulls
up on either phone.
Q. Okay. Do you all ever share numbers? Would [Father] ever
text someone from your phone?
A. Yeah. If his phone wouldn't work. While his was
if she had contact with her attorney, Chris Lawson, in
December 2017, Mother stated that she did not know Ms.
Lawson's number and was waiting for her to call Mother.
(Mother later obtained Ms. Lawson's telephone number.)
Mother further testified that the only time Ms. Lawson called
her was when Mother told her that she and Father did not want
to talk directly to DCS. Mother affirmed that Ms. Lawson