IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 20, 2019 Session

IN RE JOSHUA S.

Appeal from the Juvenile Court for Hamblen County

No. J170015 Janice H. Snider, Judge

___________________________________

No. E2018-01742-COA-R3-PT

___________________________________

Daniel 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, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court 

Affirmed; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.

SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Whitney Bailey, Kingsport, Tennessee, for the appellant, Daniel S.

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Kimberly T.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant 

Attorney General, for the appellee, the Tennessee Department of Children’s Services.

07/08/2019
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OPINION

Background

On 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.

On 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.

During 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 recommendations.

Ms. 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.

Ms. 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 
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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. 

Mother 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.

During 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. 

The 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. 

Mother 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 
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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.

Ms. 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. 

In May 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.

Ms. 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.
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Ms. 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.

Ms. 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. 

Ms. 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.

Ms. 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.

Father 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.
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Ms. 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 8, 2017.

Ms. 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.

The 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.

Mother 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. 

Mother 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 
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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. 

Mother 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.

Following 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 date.

* * *

GROUND I

SUBSTANTIAL NON-COMPLIANCE WITH PERMANENCY PLAN
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(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 housing.

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 were 

employed.

8. Parents were required to maintain a legal source of income.

9. [Father] was to take all steps to establish paternity of [the 

Child].

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 
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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 plan ratification hearing on 

May 15, 2017, who voiced no objection to the plan on behalf of [Father].

The mother completed her assessments and an inpatient drug 

rehabilitation program at CCS but failed to complete the follow-up 

Intensive Outpatient Program or to remain drug free following rehab. She 

consistently tested positive for various illicit drugs throughout 2017. She 

was then subsequently arrested on drug related charges on May 26, 2018. 

The mother failed to complete any of the other steps on her Permanency 

Plan.

In spite of the case manager’s efforts to schedule assessments for the 

father, these were never completed. The father was in and out of jail during 

2017 but did attend a few visits with Joshua. The case manager, Ms. 

Hensley, testified to her difficulty in keeping up with [Father’s]

whereabouts. In April, 2018, she did go to visit him in the Hamblen 

County jail and stated that he became aggressive and upset with her, so Ms. 

Hensley terminated the meeting. Afterward the case manager did not have 

any additional successful meetings with [Father]. The only plan step 

completed by the father was legally establishing paternity of [the Child].

The father has great disdain for the efforts of DCS to help him 

comply with the requirements of the Permanency Plan. The Court 

understands his frustration and agrees that this case manager might have 

been more persistent in her efforts to locate and contact [Father]. On the 

other hand, it does not appear that [Father] took any affirmative action to 

maintain contact with the case manager or attempt completion of any plan 

steps on his own. Significantly, he could not seem to refrain from criminal 

activity or remain out of jail long enough to work this plan.

For these reasons the Court finds by clear and convincing evidence 

that both these parents have failed to substantially comply with the 

reasonable requirements of the Permanency Plans in this case.
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GROUND II

PERSISTENT CONDITIONS

(Applies to the mother)

T.C.A. § 36-1-113(g)(3)

At the time of the T.P.R. hearing, this child had been in state custody 

for almost seventeen (17) months. He was removed from his mother due to 

her drug use, her unstable lifestyle, domestic violence, and lack of 

appropriate housing.

* * *

During the 17 months following removal of [the Child] from her 

custody, [Mother] has failed to remain drug free or to establish an 

appropriate, stable residence of her own. She continued to abuse various 

illicit drugs throughout 2017 and 2018 as evidenced by the multiple drug 

screen results in evidence as Exhibit 10. The mother was arrested on new 

drug related charges on or about May 26, 2018, and remained in jail on 

those charges until 2 weeks prior to the date of the T.P.R. trial. At the time 

of trial, she was living with a friend while seeking employment. In short, 

she has failed to make any lasting positive changes in her lifestyle that 

would enable her to resume her duties as a safe, appropriate parent for this 

child.

The Court finds by clear and convincing evidence that the conditions 

which led to the child’s removal continue to persist, and there is little 

likelihood that [Mother] will make such an improvement in her life that this 

child could be safely returned to his mother’s care in the foreseeable future 

without subjecting him to a risk of further neglect. Continuation of the 

parent-child relationship greatly diminishes [the Child’s] chances of 

integration into a permanent home in the near future.

GROUND III

FAILURE TO MANIFEST AN ABILITY TO PARENT

(Applies to both parents)

T.C.A. § 36-1-113(g)(14)

* * *

This child was in state custody for one year at the time the Petition 

to terminate his parents’ rights was filed. During the period following [the 

Child’s] removal into state custody, neither of his parents have made lasting 
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changes to their circumstances that would enable them to parent [the 

Child]. His father continued to engage in criminal activity [throughout]

2017. He has remained incarcerated for much of the time [the Child] has 

been in DCS custody. [Father] visited his son several times during the year 

prior to the filing of this Petition, and those visits went well. Case manager 

Hensley confirmed that [the Child] appeared bonded with his father. 

Unfortunately, [Father] otherwise failed to function as a parent to his child, 

contribute any form of financial support for [the Child], or establish a home 

for this child since [the Child] entered state custody.

[Mother] initially made some effort to correct the conditions that 

resulted in her child’s placement in state custody. However, she continued 

to use illicit drugs before and after she completed an inpatient rehabilitation 

program. She failed to follow an aftercare plan that would have helped her 

to remain drug free. Although [Mother] did visit her child and paid the 

nominal amount of $10 monthly in support, she did not make 

improvements in her living arrangements or create a stable living 

environment for [the Child]. [Mother] continued to involve herself in an 

unhealthy, dysfunctional relationship with [Father] and with other 

inappropriate men that culminated in the tragic kidnapping episode in late 

2017 detailed on page 9 of this order.

Neither parent contributed more than nominal financial support for 

the children during the 12 months prior to the filing of the Petition to 

Terminate Parental Rights.

If past history is an indicator, then returning [the Child] to the 

custody of either of his parents at this time would subject him to a 

likelihood of drug exposure and neglect subjecting him to substantial 

psychological harm detrimental to his welfare.

The Court finds by clear and convincing evidence that both of these 

parents have failed to manifest, by act or omission, an ability and 

willingness to personally assume legal and physical custody or financial 

responsibility of the child.

GROUND IV

ABANDONMENT BY INCARCERATED PARENT-WANTON 

DISREGARD

T.C.A. §36-1-113(G)(1), 36-1-102(1)(A)(iv) and all applicable law

(Applies to the father)

* * *
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[Father] has an extensive criminal history in multiple jurisdictions 

dating back to 2014 (see Exhibit 13). His most recent term of incarceration 

within the four (4) months preceding the filing of this Petition began on 

December 25, 2017, and he was incarcerated again at the time this Petition 

to Terminate Parental Rights was tried. Specifically, [Father] was 

convicted of the following criminal offenses since the birth of his child and 

prior to the filing of this Petition:

1. Grand theft – plea of guilty in Polk County, Florida, on September 2, 

2014.

2. On August 3, 2017, father entered a plea of guilty to Possession of a 

Schedule II controlled substance (Methadone) and Joyriding that 

occurred on July 24, 2017.

3. On October 5, 2017, father entered a plea of guilty to Disorderly 

Conduct and Criminal Impersonation for incidents that occurred on 

October 3, 2017.

4. On October 18, 2017, father pled guilty to theft for incidents that 

occurred on October 9, 2017.

In April, 2018, [Father] was held in Polk County, Florida, on charges 

of being a fugitive from justice. Court records indicate those charges were 

dismissed but with the notation “held, picked up.” It is unclear whether he 

was picked up and returned to Tennessee or released in Florida.

Court records introduced as Exhibit 13 do not indicate the nature of 

the charges for which [Father] was incarcerated on the date of this trial.

There is also evidence that [Father] has a history of drug abuse. 

When drug tested in early 2017, he was positive for THC on March 24, 

2017, for Oxycodone (without a valid prescription) and THC on April 19, 

2017, and again for THC on April 27, 2017.

Finally, a significant episode occurred between the mother and 

father in December, 2017, wherein the father is accused of kidnapping the 

mother after choking her and hitting her head against a car window. He 

then drove the mother allegedly against her will to Florida. While in 

transit, the father wrecked the vehicle and mother escaped. It requires no 

great stretch of the imagination to find that this conduct exhibited no 

concern for the welfare of [the Child] by the father. These parents 
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continued to have a dysfunctional, destructive relationship during 2017 that 

would be highly detrimental to the welfare of their child if he were returned 

to their custody.

This Court finds by clear and convincing evidence that [Father’s]

lifestyle, drug abuse, and involvement with the criminal justice system 

demonstrate wanton disregard for the welfare of his child in such a manner 

as to constitute abandonment of his child within the meaning of T.C.A. 

§36-1-113(g)(1) and §36-1-102(1)(A)(iv).

* * *

GROUND V

ABANDONMENT - FAILURE TO PROVIDE A SUITABLE HOME

(Applies to [Mother])

T.C.A. §36-1-113(g)(1), 36-1-102(1)(A)(ii)

[The Child] was removed into DCS custody on January 31, 2017.

* * *

Case manager Hensley was obviously confused and overwhelmed 

when she testified concerning her efforts to assist the parents in this case. 

She was unsure of many important details of her efforts to assist these 

parents and unclear as to the timing or specifics of others. When asked 

about her efforts to help [Mother] during the relevant four (4) month period 

between January 31, 2017 and April, 2018, Ms. Hensley was unable to 

affirmatively articulate or detail her efforts to assist [Mother] in meeting the 

requirements of the permanency plan or to establish a suitable home for 

[the Child] during that period of time. Interestingly, there was no Affidavit 

of Reasonable Efforts submitted at trial that would have helped clarify this 

issue. The Court makes note of an excerpt from the Permanency Order 

wherein [Mother] commended Ms. Hensley for her “hard work” on this 

case. Unfortunately, this Court is unable to glean the details or a time 

frame of what that hard work consisted of or how it assisted this mother in 

achieving her goal of a suitable home for this child. There is one reference 

in the trial testimony that Ms. Hensley provided the mother with 

information on Section 8 housing, for which the mother was not eligible.

Sadly, it appears from the trial evidence that very little was accomplished 

by either party . . . during the first eight to ten months following the 

removal of this child.
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Based upon the proof at trial, the Court does not have sufficient 

evidence to find that DCS made reasonable efforts to assist this mother to 

establish a suitable home for her child during the four months following the 

child’s removal to state custody. DCS failed to carry [its] burden of proof 

on this ground and Ground V of the Petition is dismissed.

BEST INTERESTS OF CHILDREN

* * *

T.C.A. §36-1-113(i) sets out a non-exhaustive list of factors to guide 

the Court’s best interest analysis. Looking at these factors the Court finds 

that: [The Child] currently resides in a DCS foster home where he is well 

loved and cared for. Neither parent has made such an adjustment of their 

circumstances or conduct as to make it safe and in the child’s best interest 

for him to be returned to their custody. Although the parents did visit with 

[the Child], their relationship with him has been interspersed with periods 

of unavailability, incarceration and drug abuse. The parents did have a 

relationship with [the Child] but their instability is an unhealthy 

environment for a young child’s growth and emotional development. [The 

Child] appears to be well settled into his current foster home. This home as 

well as a potential placement with his maternal grandfather are prospective 

permanent adoptive homes offering the stability his parents are unable to 

provide in the foreseeable future. The mother was only released from jail 

on June 12, 2018 and had not yet obtained employment or a stable 

residence of her own. The father is still incarcerated with an anticipated 

release date of September, 2018. His future circumstances are unknown. 

Consequently, the ability of either parent to financially support [the Child]

is speculative.

In spite of the Court’s inability to find that DCS . . . fully met its 

burden of making reasonable efforts to help the mother establish a suitable 

home for [the Child] during the four month period following removal, the 

case manager did assist the mother in other ways. Her efforts . . . to assist 

the father were complicated by his lack of adequate contact information, 

instability, and incarcerations. The other factors set forth in T.C.A. 36-1-

113(I) clearly mandate a best interest finding in favor of termination of 

these parents’ rights. For all of the reasons set forth previously, the Court 

finds by clear and convincing evidence that termination of [Father’s] and 

[Mother’s] parental rights is in best interests of their child.

Mother and Father timely appealed the Juvenile Court’s judgment.
- 15 -

Discussion

Although not stated exactly as such, Mother raises one issue on appeal: whether 

the Juvenile Court erred by finding by clear and convincing evidence that termination of 

the Mother’s parental rights was in the best interest of the Child. Likewise, Father raises 

on appeal the single issue of the Juvenile Court’s best interest determination as to his 

parental rights. DCS has raised the following additional issue for our review: whether 

the Juvenile Court erred by finding that DCS had proven by clear and convincing 

evidence that grounds existed for termination of the parents’ rights.

With regard to the termination of parental rights, our Supreme Court has 

instructed:

A parent’s right to the care and custody of her child is among the 

oldest of the judicially recognized fundamental liberty interests protected 

by the Due Process Clauses of the federal and state constitutions.1 Troxel v. 

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed.2d 49 (2000); 

Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed.2d 551 

(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption 

of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 

855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although 

fundamental and constitutionally protected, are not absolute. In re Angela 

E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty 

to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority 

as parens patriae when interference with parenting is necessary to prevent 

serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re 

Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky 

v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed.2d 599 (1982); In 

re Angela E., 303 S.W.3d at 250. “When the State initiates a parental rights 

termination proceeding, it seeks not merely to infringe that fundamental 

liberty interest, but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388. 

[“]Few consequences of judicial action are so grave as the severance of 

natural family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J., 

519 U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed.2d 473 (1996). The parental 

rights at stake are [“]far more precious than any property right.” Santosky, 

455 U.S. at 758-59 102 S. Ct. 1388. Termination of parental rights has the 

 

1 U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or 

property, without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee 

Constitution states “[t]hat no man shall be taken or imprisoned, or disseized of his freehold, 

liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, 

liberty or property, but by the judgment of his peers or the law of the land.”
- 16 -

legal effect of reducing the parent to the role of a complete stranger and of 

[“]severing forever all legal rights and obligations of the parent or guardian 

of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also Santosky, 455 

U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating 

parental rights is [“]final and irrevocable”). In light of the interests and 

consequences at stake, parents are constitutionally entitled to 

[“]fundamentally fair procedures” in termination proceedings. Santosky, 

455 U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of 

Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed.2d 640 

(1981) (discussing the due process right of parents to fundamentally fair 

procedures).

Among the constitutionally mandated [“]fundamentally fair 

procedures” is a heightened standard of proof – clear and convincing 

evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard 

minimizes the risk of unnecessary or erroneous governmental interference 

with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 

596 (Tenn. 2010). [“]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 Bernard T., 319 S.W.3d at 596 (citations omitted). 

The clear-and-convincing-evidence standard ensures that the facts are 

established as highly probable, rather than as simply more probable than 

not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re 

M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

Tennessee statutes governing parental termination proceedings 

incorporate this constitutionally mandated standard of proof. Tennessee 

Code Annotated section 36-1113[sic](c) provides:

Termination of parental or guardianship rights must be based 

upon:

(1) A finding by the court by clear and convincing evidence that 

the grounds for termination of parental or guardianship rights 

have been established; and

(2) That termination of the parent’s or guardian’s rights is in the 

best interests of the child.

This statute requires the State to establish by clear and convincing proof 

that at least one of the enumerated statutory grounds2for termination exists 

 

2

Tenn. Code Ann. § 36-1-113(g)(1)-(13).
- 17 -

and that termination is in the child’s best interests. In re Angela E., 303 

S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is 

separate from and subsequent to the determination that there is clear and 

convincing evidence of grounds for termination.” In re Angela E., 303 

S.W.3d at 254. Although several factors relevant to the best interests 

analysis are statutorily enumerated,3the list is illustrative, not exclusive. 

The parties are free to offer proof of other relevant factors. In re Audrey S., 

182 S.W.3d at 878. The trial court must then determine whether the 

combined weight of the facts “amount[s] to clear and convincing evidence 

that termination is in the child’s best interest.” In re Kaliyah S., 455 

S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent 

receives the constitutionally required “individualized determination that a 

parent is either unfit or will cause substantial harm to his or her child before 

the fundamental right to the care and custody of the child can be taken 

away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

Furthermore, other statutes impose certain requirements upon trial 

courts hearing termination petitions. A trial court must “ensure that the 

hearing on the petition takes place within six (6) months of the date that the 

petition is filed, unless the court determines an extension is in the best 

interests of the child.” Tenn. Code Ann. § 36-1113[sic](k). A trial court 

must “enter an order that makes specific findings of fact and conclusions of 

law within thirty (30) days of the conclusion of the hearing.” Id. This 

portion of the statute requires a trial court to make “findings of fact and 

conclusions of law as to whether clear and convincing evidence establishes 

the existence of each of the grounds asserted for terminating [parental] 

rights.” In re Angela E., 303 S.W.3d at 255. “Should the trial court 

conclude that clear and convincing evidence of ground(s) for termination 

does exist, then the trial court must also make a written finding whether 

clear and convincing evidence establishes that termination of [parental] 

rights is in the [child’s] best interests.” Id. If the trial court’s best interests 

analysis “is based on additional factual findings besides the ones made in 

conjunction with the grounds for termination, the trial court must also 

include these findings in the written order.” Id. Appellate courts “may not 

conduct de novo review of the termination decision in the absence of such 

findings.” Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & 

n.15 (Tenn. Ct. App. 2007)). 

B. Standards of Appellate Review

 

3

Tenn. Code Ann. § 36-1-113(i).
- 18 -

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). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at 

246. 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 re Bernard T., 319 S.W.3d at 

596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of 

A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). 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. In re Bernard T., 319 S.W.3d at 596-97. 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. In re M.L.P., 281 S.W.3d at 393 (quoting In re 

Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions 

of law in parental termination appeals, as in other appeals, are reviewed de 

novo with no presumption of correctness. In re Angela E., 303 S.W.3d at 

246.

In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but 

renumbered). 

Clear and convincing evidence supporting any single ground will justify a 

termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Our Supreme 

Court, however, has instructed “that in an appeal from an order terminating parental 

rights the Court of Appeals must review the trial court’s findings as to each ground for

termination and as to whether termination is in the child’s best interests, regardless of 

whether the parent challenges these findings on appeal.” In re Carrington H., 483 

S.W.3d at 525-26 (footnote omitted). As such, we review each of the grounds for 

termination.

Four grounds for termination are implicated in this appeal, and we will address 

each of those separately. As pertinent, Tennessee Code Annotated § 36-1-113(g)(1) 

provides:

(g) Initiation of termination of parental or guardianship rights may be based 

upon any of the grounds listed in this subsection (g). The following 

grounds are cumulative and non-exclusive, so that listing conditions, acts or 

omissions in one ground does not prevent them from coming within another 

ground:
- 19 -

(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has 

occurred;

We first address whether the Juvenile Court erred by finding the ground of 

abandonment by wanton disregard against Father. Regarding wanton disregard, 

Tennessee Code Annotated § 36-1-102 provides:

(1)(A) For purposes of terminating the parental or guardian rights of a 

parent or parents or a guardian or guardians of a child to that child in order 

to make that child available for adoption, “abandonment” means that:

* * *

(iv) 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.

Father was incarcerated within the four months preceding the termination petition. 

The Juvenile Court found that Father had been convicted of grand theft, possession of a 

schedule II drug, joyriding, disorderly conduct, criminal impersonation, and theft, all of 

which occurred after the Child was born. During the time the Child was in DCS custody, 

Father had failed three drug screens. Father had tested positive for THC on all three drug 

screens and had tested positive for oxycodone on one occasion in April 2017 without 

providing a valid prescription. 

The Juvenile Court was concerned with an incident occurring between Mother and 

Father, in which Father was accused of choking Mother, hitting her head against a car 

window, and kidnapping her. During this incident, Father drove Mother to Florida 

allegedly against her will. Mother was able to escape when Father wrecked the vehicle. 

We agree with the Juvenile Court when it found by clear and convincing that 

Father’s “lifestyle, drug abuse, and involvement with the criminal justice system” 

demonstrate Father’s wanton disregard for the Child’s welfare. We therefore affirm the

Juvenile Court’s finding that the ground of abandonment by wanton disregard was 

established by clear and convincing evidence.

We next address whether the Juvenile Court erred by finding the ground of 

substantial noncompliance with the permanency plan against Mother and Father. 

Concerning substantial noncompliance with the permanency plan, Tennessee Code 

Annotated § 36-1-113(g)(2) provides:
- 20 -

(2) There has been substantial noncompliance by the parent or guardian 

with the statement of responsibilities in a permanency plan pursuant to the 

provisions of title 37, chapter 2, part 4;

The Juvenile Court found that the permanency plan requirements were reasonably 

related to the reasons for removal and the goal of the parents achieving a “stable lifestyle 

free of criminal activity and substance abuse.” Under the permanency plan, the parents 

were each required to: (1) maintain safe and stable housing, (2) complete parenting 

classes, (3) resolve all pending criminal charges and refrain from incurring any new 

criminal charges, (4) complete a mental health evaluation and comply with all

recommendations, (5) create an appropriate daycare plan for the Child if he were returned 

to the parents’ custody, and (6) maintain a legal source of income. Additionally, Father 

was required to establish paternity of the Child. Mother was also required to complete an 

alcohol and drug assessment and follow all recommendations and to comply with random 

drug screens and pill counts.

Mother attended a mental health assessment in January 2018, but the record is 

unclear whether Mother received a copy of those results. Although an appointment was 

scheduled, Mother did not attend parenting classes. Throughout 2017, Mother failed 

several drug screens and refused to comply with one drug test prior to seeking treatment 

for alcohol and drugs. Mother did eventually complete an alcohol and drug assessment 

and attended a residential treatment facility for approximately twenty-eight days from 

October 5, 2017 through November 2, 2017. Mother was successfully discharged from 

that program with instruction to continue her recovery program by attending aftercare 

appointments, parenting classes, and AA/NA meetings. Unfortunately, after her release 

from treatment, Mother failed to attend her aftercare appointments, relapsed, and failed 

drug screens for illegal substances, including methamphetamine, amphetamine, and THC. 

Additionally, Mother refused to comply with requests for at least three drug screens

following treatment. Following her release from treatment, Mother also incurred new 

criminal charges and was convicted of drug-related charges of possession of a schedule 

six drug and possession of drug paraphernalia. We determine that the evidence in the 

record on appeal does not preponderate against the Juvenile Court’s findings relevant to 

its finding that Mother had not substantially complied with the permanency plan 

requirements and that these findings rise to the level of clear and convincing evidence. 

We therefore affirm this ground as to Mother.

Regarding Father, he completed the requirement of establishing paternity of the 

Child on March 22, 2017, when the Juvenile Court entered an order establishing Father to 

be the father of the Child and directing issuance of a new birth certificate reflecting the 

parental relationship and the Child’s name change. Unfortunately, Father completed no 

other requirements of his permanency plan. Father failed to attend a mental health

assessment or parenting classes. Ms. Hensley had difficulty reaching Father during most 
- 21 -

of the case. According to Ms. Hensley, Father did not have a stable home and moved 

around from place to place. Father continued to participate in criminal activities which 

lead to further arrests and criminal convictions. The record reflects that Father was 

unable to obtain employment or apply for disability benefits due to a lack of 

documentation, including his social security card, birth certificate, or a driver’s license. 

As to Father, the evidence presented and the record before us does not preponderate 

against the Juvenile Court’s finding that Father had not substantially complied with the 

requirements of the permanency plan, and this proof satisfies the clear and convincing 

standard. We therefore affirm this ground as to Father.

We next address whether the Juvenile Court erred by finding the ground of 

persistent conditions against Mother. As to persistence of conditions, Tennessee Code 

Annotated § 36-1-113(g)(3) provides: 

(3) The child has been removed from the home of the parent or guardian by 

order of a court for a period of six (6) months and:

(A) The conditions that led to the child’s removal or other conditions 

that in all reasonable probability would cause the child to be subjected to 

further abuse or neglect and that, therefore, prevent the child’s safe return 

to the care of the parent or parents or guardian or guardians, still persist;

(B) There is little likelihood that these conditions will be remedied at 

an early date so that the child can be safely returned to the parent or parents 

or the guardian or guardians in the near future; and

(C) The continuation of the parent or guardian and child relationship 

greatly diminishes the child’s chances of early integration into a safe, stable 

and permanent home;

Regarding this case, the Child was removed from Mother’s custody after Mother 

and her brother were stabbed by her brother’s girlfriend. Following that incident, Mother 

failed a drug screen for THC, benzodiazepines, methamphetamine, and amphetamine. 

Additionally, illegal drugs were found in the home where Mother and the Child were

residing. The Child was home but was not present during the incident. At the 

adjudicatory hearing, Mother stipulated that the Child was dependent and neglected due 

to Mother’s “drug abuse and lack of supervision.” 

The Juvenile Court found that during the seventeen months the Child was in DCS 

custody, Mother had failed to remedy her addiction to drugs and had not established a 

safe and appropriate home for the Child. Although Mother successfully completed a 

residential drug treatment program, Mother relapsed following her discharge from the 

facility; failed to attend the recommended aftercare classes; failed drug screens for 
- 22 -

methamphetamine, amphetamines, and THC; and was convicted of drug-related offenses. 

The Juvenile Court found that Mother had not made any lasting positive changes in her 

lifestyle that would make it safe for the Child to be returned to her care without 

subjecting him to the risk of further neglect. Additionally, the Juvenile Court found that 

continuation of the parent-child relationship between Mother and the Child would greatly 

diminish the Child’s chances of early integration into a permanent home.

Upon review of the record on appeal, we determine that the evidence presented 

does not preponderate against the Juvenile Court’s finding that the conditions leading to 

the Child’s removal from Mother persisted. As did the Juvenile Court, we find this 

ground was proven by clear and convincing evidence, and we affirm this ground for 

termination as to Mother.

We next address whether the Juvenile Court erred by finding the ground of failure 

to manifest an ability and willingness to assume custody or financial responsibility for the 

Child, which the Juvenile Court found against both Mother and Father. Tennessee Code 

Annotated § 36-1-113(g)(14) provides as an additional ground for termination:

(14) A legal parent or guardian has failed to manifest, by act or omission, 

an ability and willingness to personally assume legal and physical custody 

or financial responsibility of the child, and placing the child in the person’s 

legal and physical custody would pose a risk of substantial harm to the 

physical or psychological welfare of the child;

As to Mother, the Juvenile Court acknowledged that Mother had made an effort to 

remedy the reasons the Child was removed from her custody and that Mother had paid a 

nominal amount of $10 per week in child support for the Child. However, the Juvenile 

Court found that Mother had not contributed more than nominal financial support for the 

Child in the twelve months preceding the termination petition. Additionally, as the 

Juvenile Court found, Mother had continued to use illegal drugs even after completing a 

program at a residential drug treatment facility. Furthermore, Mother had not established 

a safe and stable home to which the Child could return.

Regarding Father, he continued to engage in criminal activity and had remained 

incarcerated for much of the time the Child was in DCS custody. Father had visited with 

the Child a few times early in the case, and although those visits had gone well, Father 

had not visited the Child since April 20, 2017. While the Child has been in DCS custody, 

Father has not paid any child support for the Child and does not have a home in which the 

Child could go to should Father regain custody. Additionally, Father was incarcerated at 

the time of trial.

The Juvenile Court found that both parents failed to manifest an ability or 

willingness to assume custody or financial responsibility of the Child, and if the Child 
- 23 -

were returned to either parents’ custody, the Child would be subjected to “a likelihood of 

drug exposure and neglect subjecting him to substantial psychological harm” that would 

be detrimental to the Child’s welfare. Reviewing the record before us, we determine that 

the evidence does not preponderate against the Juvenile Court’s findings in this regard, 

and this evidence rises to the level of clear and convincing. We affirm the Juvenile 

Court’s judgment regarding this ground for termination of Mother’s and Father’s parental 

rights.

Having determined that grounds exist for the termination of Mother’s and Father’s 

parental rights, we next address the best interest analysis. Both parents have raised as 

their only issue on appeal whether the Juvenile Court erred by finding that termination of 

Mother’s and Father’s respective parental rights to the Child was in the Child’s best 

interest. Tennessee Code Annotated § 36-1-113(i) provides a set of non-exclusive factors 

courts are to consider in determining whether termination of parental rights is in a child’s 

best interest:

(i) In determining whether termination of parental or guardianship 

rights is in the best interest of the child pursuant to this part, the 

court shall consider, but is not limited to, the following

(1) Whether the parent or guardian has made such an adjustment of 

circumstance, conduct, or conditions as to make it safe and in the 

child’s best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting 

adjustment after reasonable efforts by available social services 

agencies for such duration of time that lasting adjustment does not 

reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation or 

other contact with the child;

(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely 

to have on the child’s emotional, psychological and medical 

condition;

(6) Whether the parent or guardian, or other person residing with the 

parent or guardian, has shown brutality, physical, sexual, emotional 

or psychological abuse, or neglect toward the child, or another child 

or adult in the family or household;
- 24 -

(7) Whether the physical environment of the parent’s or guardian’s 

home is healthy and safe, whether there is criminal activity in the 

home, or whether there is such use of alcohol, controlled substances 

or controlled substance analogues as may render the parent or 

guardian consistently unable to care for the child in a safe and stable 

manner;

(8) Whether the parent’s or guardian’s mental and/or emotional status 

would be detrimental to the child or prevent the parent or guardian 

from effectively providing safe and stable care and supervision for 

the child; or

(9) Whether the parent or guardian has paid child support consistent 

with the child support guidelines promulgated by the department 

pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i) (2017).

With regard to making a determination concerning a child’s best interest, our 

Supreme Court recently instructed:

When conducting the best interests analysis, courts must consider 

nine statutory factors listed in Tennessee Code Annotated section 36-1-

113(i). These statutory factors are illustrative, not exclusive, and any party 

to the termination proceeding is free to offer proof of any other factor 

relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at 

523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). 

Facts considered in the best interests analysis must be proven by “a 

preponderance of the evidence, not by clear and convincing evidence.” In 

re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at 

861). “After making the underlying factual findings, the trial court should 

then consider the combined weight of those facts to determine whether they 

amount to clear and convincing evidence that termination is in the child’s 

best interest[s].” Id. When considering these statutory factors, courts must 

remember that “[t]he child’s best interests [are] viewed from the child’s, 

rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. 

Indeed, “[a] focus on the perspective of the child is the common theme” 

evident in all of the statutory factors. Id. “[W]hen the best interests of the 

child and those of the adults are in conflict, such conflict shall always be 

resolved to favor the rights and the best interests of the child. . . .” Tenn. 

Code Ann. § 36-1-101(d) (2017).
- 25 -

Ascertaining a child’s best interests involves more than a “rote 

examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878. 

And the best interests analysis consists of more than tallying the number of 

statutory factors weighing in favor of or against termination. White v. 

Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts 

and circumstances of each unique case dictate how weighty and relevant 

each statutory factor is in the context of the case. See In re Audrey S., 182 

S.W.3d at 878. Simply put, the best interests analysis is and must remain a 

factually intensive undertaking, so as to ensure that every parent receives 

individualized consideration before fundamental parental rights are 

terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon 

the circumstances of a particular child and a particular parent, the 

consideration of one factor may very well dictate the outcome of the 

analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 

S.W.3d at 194). But this does not mean that a court is relieved of the 

obligation of considering all the factors and all the proof. Even if the 

circumstances of a particular case ultimately result in the court ascribing 

more weight—even outcome determinative weight—to a particular 

statutory factor, the court must consider all of the statutory factors, as well 

as any other relevant proof any party offers.

In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).

Both Mother and Father argue that their rights should not be terminated because 

DCS failed to provide reasonable efforts to the parents to assist them with reunification. 

As our Supreme Court has explained:

In a given parental termination case, the best-interest factor regarding 

DCS’s efforts to assist the respondent parent may be determinative, i.e., 

DCS’s lack of reasonable efforts may weigh heavily enough to persuade the 

trial court that termination of the parent’s rights is not in the best interest of 

the subject child. Nevertheless, the extent of DCS’s efforts remains a factor 

to be weighed in the best-interest analysis, not an essential element that 

must be proven in order to terminate the parental rights of the respondent 

parent.

In re Kaliyah S., 455 S.W.3d 533, 556 (Tenn. 2015).

At trial, Ms. Hensley testified of her efforts to assist Mother. According to Ms. 

Hensley, she submitted a funding request, which had been approved, to pay for Mother’s 

mental health assessment, alcohol and drug assessment, and parenting assessment. 

Mother also testified that Ms. Hensley assisted Mother in scheduling those assessments. 

According to a letter from New Hope Recovery Center, Mother attended a pre-screening 
- 26 -

appointment that consisted of a clinical alcohol and drug assessment on March 6, 2017. 

Mother attended a parenting assessment on July 24, 2017, and a mental health assessment 

on January 29, 2018. Ms. Hensley also assisted Mother in scheduling an appointment 

with Broken Arrow on April 12, 2018, for parenting classes, but Mother did not attend.

Ms. Hensley provided Mother with several drug screens throughout the case. 

Although Mother declined treatment at the time, Ms. Hensley encouraged Mother to 

attend rehab on July 18, 2017. Mother eventually did attend a residential treatment 

program at CCS from October 5, 2017, to November 2, 2017. Ms. Hensley testified that 

she contacted CCS regarding availability to enroll Mother in its program but they needed 

Mother to call them directly for the application process. Ms. Hensley offered to drive 

Mother to treatment, but Mother declined. While speaking with a representative at CCS, 

Ms. Hensley learned of grants that would cover the cost of Mother’s treatment. Ms.

Hensley informed Mother of the grant available, and Mother filled out the application on 

her own. Following Mother’s discharge from CCS, Ms. Hensley assisted Mother in 

scheduling intensive outpatient treatment. Ms. Hensley testified that she had provided 

Mother with a list of places where she could attend group therapy and AA/NA classes 

prior to getting Mother admitted to an intensive outpatient treatment program in April 

2018. Additionally, we note that at a permanency hearing which occurred on May 15,

2017, the court order reflects that Mother had complimented Ms. Hensley for “her hard 

work.”

There were delays in scheduling Mother’s follow-up outpatient treatment and 

mental health assessment, but the record is unclear what caused those delays. Mother

testified that she requested a copy of her January 2018 mental health assessment three 

times but that Ms. Hensley did not provide it to her. Ms. Hensley testified that DCS’s 

usual practice was to provide a copy of the assessment to the parent but she did not know 

whether she gave Mother a copy. The trial court found that although it had not found 

sufficient evidence to support a finding of reasonable efforts by DCS to help Mother 

establish a suitable home for the Child during the first four months following the Child’s 

removal, Ms. Hensley had assisted Mother “in other ways.” The record supports this 

finding.

Similarly, Ms. Hensley detailed her efforts to assist Father. According to Ms. 

Hensley, she often had difficulty reaching Father throughout the case. At times when she 

was able to reach Father, Ms. Hensley testified that Father was aggressive toward her 

during conversations and would often tell her that he knew how the system worked, and 

he did not need her to tell him. Father presented no evidence to contradict Ms. Hensley’s 

testimony. 

Ms. Hensley testified that she had spoken to Father about obtaining employment,

but he had informed her that he had injured his back. Ms. Hensley then stated that she 

had suggested that Father apply for disability benefits if he was unable to work. 
- 27 -

However, as the Juvenile Court recognized, Ms. Hensley’s efforts with Father were 

complicated due to his lack of identification documentation and his repeated 

incarcerations. 

Lack of housing has been an issue with Father from the beginning. Ms. Hensley 

testified that she had spoken to Father about his lack of housing and suggested that he go 

to a local shelter until she and Father could figure out a more permanent solution. Ms. 

Hensley specifically suggested the MATS shelter, but Father declined because he stated 

that he needed to be clean to go to MATS. 

Father was incarcerated repeatedly throughout the case. Ms. Hensley had 

scheduled a clinical mental health assessment, which included an alcohol and drug 

component, where the assessor would come to Father while he was incarcerated. The 

assessment was supposed to take place on November 6, 2017, but Father was released 

from jail before the assessment occurred. 

Ms. Hensley’s efforts to assist Father were not herculean. Her efforts, however,

far exceeded the effort made by Father. The Juvenile Court recognized that although Ms. 

Hensley could have been more persistent in her efforts to locate Father, Father made no 

efforts to contact Ms. Hensley or to complete the permanency plan requirements. 

Instead, Father continued to engage in criminal activity. Father told Ms. Hensley that he 

did not need her to explain to him how the system works because he already knew. 

Despite Father’s assertions, Father completed only one task on his permanency plan. 

After a review of the record on appeal, we find and hold that although DCS’s 

efforts to assist the parents were not herculean, consideration of those efforts as a factor 

does not weigh heavily enough to prevent the termination of Mother’s and Father’s 

parental rights as relevant to Tennessee Code Annotated § 36-1-113(i)(2). 

Upon consideration of the remaining best interest factors, the Juvenile Court found 

that Mother and Father had not made a sufficient adjustment to their respective 

circumstances to make it safe for the Child to be placed in their care. Mother continued 

to use illegal drugs and was released from jail on drug-related offenses approximately

two weeks prior to trial. The Juvenile Court found that following her release, Mother had

not obtained employment or a stable home for the Child. Mother had visited the Child 

regularly when she was not incarcerated and had paid nominal child support for the 

Child. Father had continued to participate in criminal activity which led to recurrent 

incarceration throughout the time the Child was in custody. Father remained incarcerated 

at the time of trial. Even when Father was not incarcerated, he did not have a home for 

the Child. Moreover, Father had not visited the Child since April 20, 2017. The Juvenile 

Court found that the parents’ instability would be an unhealthy environment for the 

Child’s growth and emotional development. 
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Additionally, the Juvenile Court found that the Child was well adjusted in his 

foster home. The Juvenile Court further found that both the foster home and a family 

relative have expressed interest in adopting the Child and can offer the Child the stability 

that the parents are unable to provide.

Upon a review of the record on appeal, we determine that the evidence presented 

does not preponderate against the Juvenile Court’s finding that termination of Mother’s 

and Father’s parental rights was in the best interest of the Child and that the evidence 

satisfies the clear and convincing standard. Therefore, we affirm the Juvenile Court’s 

judgment terminating Mother’s and Father’s parental rights in its entirety.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to the 

Juvenile Court for collection of the costs assessed below. The costs on appeal are 

assessed against the appellants, Kimberly T. and Daniel S., and their surety, if any.

_________________________________

D. MICHAEL SWINEY, CHIEF JUDGE