IN RE MAHALEY P. ET AL.
Assigned on Briefs December 2, 2019
from the Juvenile Court for Claiborne County No. 2016-JV-1884
Robert M. Estep, Judge
the second appeal concerning the petition filed by the
Tennessee Department of Children's Services
("DCS") in the Claiborne County Juvenile Court
("Juvenile Court") to terminate the parental rights
of Ed P. ("Father") to the children, Mahaley P. and
Morgan P. ("the Children"). During the first appeal
as to Father, this Court reversed the statutory ground of
substantial noncompliance with the permanency plan and
remanded for the Juvenile Court to make additional findings
of fact and conclusions of law related to the two remaining
grounds and as relevant to the best interest analysis.
See In re Mickeal Z., No. E2018-01069-COA-R3-PT,
2019 WL 337038 (Tenn. Ct. App. Jan. 25, 2019). On April 4,
2019, the Juvenile Court entered an order making additional
findings of fact and conclusions of law. Father appeals the
April 4, 2019 order of the Juvenile Court terminating his
parental rights to the Children upon its determination that
DCS had proven by clear and convincing evidence the statutory
grounds of persistent conditions and failure to manifest an
ability and willingness to assume custody of the Children and
that the termination of Father's parental rights was in
the Children's best interest. Discerning no error, we
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
M. Bailey, Jr., Jacksboro, Tennessee, for the appellant, Ed
Herbert H. Slatery, III, Attorney General and Reporter, and
Amber L. Seymour, Assistant Attorney General, for the
appellee, the Tennessee Department of Children's
Michael Swiney, C.J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S., and Kenny W.
Armstrong, J., joined.
MICHAEL SWINEY, CHIEF JUDGE.
October 2016, the Juvenile Court entered an order placing the
Children in the custody of DCS. DCS filed a petition for
termination of the parents' rights in June 2017, which
was granted by the Juvenile Court. The parents appealed to
this Court. The previous appeal involved both Father and the
Children's biological mother, Alesha Z.
("Mother"). The Children's half-sibling,
Mickeal Z., also was involved in the previous appeal. Mickeal
Z. is not involved in this appeal because Father is not his
biological father. During the previous appeal, this Court
summarized this case as follows:
The Tennessee Department of Children's Services
("the Department") became involved with the parents
and children in October 2016 after Mother was found with the
children on the side of the road in Claiborne County.
According to a later-filed "Petition for Temporary Legal
Custody," the allegations of which were stipulated to by
the parents, the Department's involvement itself stemmed
from allegations that there was a drug-exposed child. In
pertinent part, the Department's petition for custody
outlined the following:
2. This matter came to the Department's attention upon a
referral for Drug Exposed Child. CM Gilliam made contact with
the mother, Alesha, who stated that she had broken down after
picking up her children from school in Ed's truck. The
family has been living part of the time in Clairfield, TN and
the rest of the time in Middlesboro, KY. Alesha stated that
she did not have anyone to help her and so she reached out to
the police. The truck was impounded and Alesha and the kids
were brought to the Justice Center. There was no insurance on
the truck and Alesha did not have her driver's license
with her. Alesha did not have a booster seat in the truck for
Mahaley. Alesha and the children were in the broken down
vehicle for approximately 6 hours.
3. Alesha stated that she had "messed up" and done
meth. Alesha stated that she had also taken a Hydro 7.5
earlier that day that she had found from an old prescription.
Alesha consented to a [urine drug screen] and failed for
methamphetamine, amphetamine, and THC. Alesha stated that she
did not have anyone to pick her up and help her and that she
and her fiancé Ed had split up because he had kicked
her in the face. Alesha reported that Ed had kicked her in
his sleep when she tried to wake him.
4. Alesha stated that her children had been staying with her
father . . . at night in Middlesboro, KY by agreement but
that she had kept the children with her since the weekend.
Alesha stated that she had broken down in her car the night
before and had not got the children home until 4:00 am.
5. Alesha stated that the home at . . . Brentwood Circle
Middlesboro, KY was built in 1893, and that it did not have
water or electricity. Alesha stated that she and Ed were
trying to remodel the home.
6. Ed could not be reached and Alesha stated that he was out
of minutes and could not text either. Alesha requested for
her father . . . to go get Ed and bring him to the Justice
Center. [Her father] refused and stated that he does not get
along with Ed. Alesha named several family members in TN but
none could be approved for an IPA.
7. The children appeared tired and dirty. The baby Morgan was
coughing and fussy. The baby smelled like vomit and the
officer reported that the baby had vomited earlier. Mahaley
appeared dirty and her clothes were dirty. Mickeal appeared
appropriate but was very upset that he was going to have to
miss his field trip at school on Wednesday.
October 13, 2016, the Claiborne County Juvenile Court entered
a protective custody order, pursuant to which the Department
was awarded temporary legal custody of the children. A
preliminary hearing was set for October 19, 2016, and
following that hearing, the juvenile court determined that
probable cause had been established to show that the children
were dependent and neglected. An "Adjudicatory Hearing
Order" was entered the following month after both
parents waived the scheduled adjudicatory hearing and
stipulated to the allegations in the Department's
petition for custody. Pursuant to this latest order, the
juvenile court held that the children were "dependent
and neglected within the meaning of the law" and that
their removal was required pursuant to the Tennessee Code.
Although the order provided that the Department would retain
temporary custody of the children, it also stated that the
parents would be allowed supervised visitation according to
the rules and regulations of the Department.
the course of the Department's involvement with the
family, a number of permanency plans were created. The first
permanency plan, dated October 26, 2016, had several
requirements directed to ensuring that the children had
stable housing and that the parents were drug-free. With
respect to the parents' ability to provide safe and
stable housing, for instance, the permanency plan directed
the parents to give the Department documentation of valid
housing, provide information regarding their address, and
provide documentation of legal income. Regarding substance
abuse concerns, the permanency plan required Mother to
schedule and attend an alcohol and drug assessment and follow
all recommendations. Moreover, both parents were required to
pass random drug screens and pill counts.
addition to the above, the permanency plan had several other
discrete requirements. Included among these was the
requirement that Father establish parentage of the children.
Further, the parents were required to attend the
children's medical appointments, as well as create a
transportation plan and provide the Department with proof of
insurance on any vehicle in which the children would be
transported. Concerning the parents' responsibilities
regarding visitation, the permanency plan provided in
relevant part as follows:
Parents will schedule visitation at least one week prior to
the desired visitation with the department FSW or private
provider (if utilized). Parents will cancel any visit at
least 24 hours prior to the scheduled visitation. Parents
will arrive at the visit at least 15 minutes prior to the
scheduled visit. The visitation will be cancelled if the
parents arrive 15 minutes (or more) late for the visit.
Parents will provide their own transportation to and from
scheduled visit. Parents will provide for all the needs of
the child(ren) during the visit such as any needed snacks,
drinks, and diapers. Parents will demonstrate appropriate
parenting skills during visits. Parents will not be under the
influence of drugs or alcohol before or during the scheduled
second permanency plan, dated April 11, 2017,  added additional
requirements for the parents. Whereas Father was required to
schedule a mental health assessment, both parents were
required to begin family counseling. Both parents were also
required to take anger management classes and provide
documentation to the Department that the classes were
completed. Further, the parents were directed to maintain
contact with the Department at least once a week.
concerns that Mother's diabetes was impeding her ability
to effectively care for the children, the second permanency
plan also required Mother to "follow recommendations
from her doctor to maintain her health." Moreover, in
light of the fact that both parents had criminal trespassing
charges and unpaid tickets, both parents were required to
resolve all legal issues.
third permanency plan, dated October 11, 2017, was generally
consistent with the previous two plans. However, as the
Department has highlighted, the third plan specifically noted
that Mother was not following the recommendations of her
alcohol and drug assessment, whereas it did acknowledge that
both parents had provided copies of valid driver's
12, 2017, the Department filed its "Petition to
Terminate Parental Rights" in the Claiborne County
Juvenile Court, requesting that Mother's parental rights
be terminated as to Mickeal Z., Mahaley P., and Morgan P.,
and that Father's parental rights be terminated as to
Morgan P. The petition was later amended to specify that the
Department was also seeking to terminate Father's
parental rights to Mahaley P. Multiple grounds for
termination were alleged in the Department's petition. As
to both parents, the following grounds were asserted:
abandonment for failure to provide a suitable home,
substantial noncompliance with permanency plan, persistent
conditions, and failure to manifest an ability to parent. As
to Father alone, the Department alleged that Father had
engaged in conduct that exhibited a wanton disregard for the
children's welfare. In addition to asserting the above
grounds for termination, the Department averred that the
termination of Mother's and Father's parental rights
would be in the children's best interests.
11, 2018, the juvenile court held a hearing on the
Department's termination petition. The first witness to
testify was Nicki Stone, a case manager with the Department.
Ms. Stone testified that when the family was brought to the
attention of the Department, Mother reported to her that
"things had been rough for her and that she had really
messed up, that she had used meth and that she had taken some
sort of pain pill." According to Ms. Stone, Mother also
reported that the home she and Father were residing in at
that time had no water or electricity. Regarding the
children, Ms. Stone stated that the children appeared
"very tired and dirty" when she first saw them.
Although Ms. Stone stated that Father could not be reached
the night that the children came into custody, she testified
that, during her subsequent interaction with him, he was
compliant with everything that she asked him to do.
testify was Jessica Dillon, a family service worker with the
Department. Ms. Dillon was involved in the case from the time
the children came into custody until the end of January 2017.
She testified that she met with the parents to create the
initial permanency plan. Among her concerns was the
parents' housing; according to Ms. Dillon, their previous
housing was not livable "due to bedbugs and several
different things going on in that home." Mother's
drug issues were also among Ms. Dillon's biggest concerns
with the family at the time the initial permanency plan was
created. During a drug screen on December 9, 2016, Mother
tested positive for amphetamine, methamphetamine, opiate, and
Oxycodone. Ms. Dillon testified, however, that Father tested
clean at that time.
Mother failed to show up on time for a January 13, 2017
visit, Ms. Dillon tried to find her and eventually located
her in a mall bathroom. Ms. Dillon testified that, although
she tried to administer a drug screen to Mother on that date,
Mother refused. A few days later, on January 17, 2017, Ms.
Dillon made an unannounced visit to a residence the parents
had obtained at a trailer park in Cumberland Gap. No one was
present when she arrived, and Ms. Dillon observed that there
was a large amount of debris around the home, that there were
smashed windows, and that the home did not appear to be
livable. According to Ms. Dillon, at a subsequent foster care
review board meeting on January 19, 2017, Mother tested
positive for amphetamine, methamphetamine, and THC.
Dillon testified that Mother showed up for about half of her
visitations with the children. Although she testified that
the visits went well overall, she also stated that on some
visits she suspected that Mother was under the influence. Ms.
Dillon stated that Father was present at all of his
visitations from what she recalls and that he did not fail
any drug screens while she had the case.
Ms. Dillon testified, the court heard from Rhonda Combs, an
employee with Youth Villages. Ms. Combs was assigned to work
with the family beginning in December 2016 after a referral
from the Department, and she carried this responsibility
through April 2017. Ms. Combs testified that her role was as
a support to help the parents meet the conditions of the
permanency plan and that she was available three days a week.
However, her testimony revealed that there was a lack of
consistency regarding the parents' usage of this
Three times a week is what our schedule was. There were times
that we would have a high rate of no-shows, and then they
would do great and meet consistently for the next three
weeks. And then they might fall off the next week, and
it'd be once a week, then twice a week. So it kind of
went back and forth a little bit.
the parents' trailer in Cumberland Gap, Ms. Combs
testified that it had weak flooring and that it did not
initially have water or electricity. Although she stated that
the parties had made some progress by the time her
involvement ended, she testified that the progress made was
"minimal" and that there were still electrical
issues in that wiring was exposed and not behind drywall. Ms.
Combs further stated that, although a kitchen sink was
working when she left, the parties had to use public
facilities or five-gallon buckets they kept in the trailer in
order to use the restroom. Although Ms. Combs advised the
parents about public housing, she testified that no
documentation was ever provided to her to confirm a claim
made by Mother that the family was on a waiting list.
to Ms. Combs, although the parents had put up some drywall in
the trailer "for a little bit," the progress was
removed. As she explained it:
The problem . . . was whenever there would be an argument or
disagreement in the home, [Mother] told me that -- and I saw
the damage but she told me she did, but she took a hammer and
went all the way down every bit of that drywall and busted it
Combs further testified that graffiti had sometimes appeared
in the home, the product of Mother venting her frustration
following a disagreement. We observe that pictures
chronicling some of the graffiti was introduced as an exhibit
at trial. One of the messages, written in large print across
a wall, concludes in part with the following: "What are
you f***** in the head! You[']ll Regret." Another
picture of Mother's graffiti shows a message stating
that, "I Bought it I Bought it I hung it sorry for your
luck That's what you get for refusing to take me to Rehab
F*** You." Clearly evident and interspersed throughout
the graffiti in this latter message are various holes in the
wall. According to Ms. Combs, Mother never reported that
Father had made any of these holes and actually
self-professed that the destruction was her own doing.
regarding the relationship between the parents, Ms. Combs
testified as follows:
When I first started with the case . . . [Father] . . . was
actually in the hospital at U.T. after his surgery. [Mother]
was extremely concerned with his care and well-being, wanted
to take care of him, make sure he got better. So, initially