IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 2, 2016

IN RE DESTINY S.

Appeal from the Juvenile Court for Putnam County

No. 15JT7 John P. Hudson, Judge

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No. M2016-00098-COA-R3-PT – Filed August 4, 2016

___________________________________

This appeal involves the termination of a mother‟s parental rights to her minor child. 

Following a bench trial, the trial court found that clear and convincing evidence existed to 

support termination on the statutory grounds of substantial noncompliance with a 

permanency plan, persistent conditions, and severe child abuse. The court further found by 

clear and convincing evidence that termination was in the child‟s best interest. The mother 

appeals. Having reviewed the record, we hold that only the ground of substantial 

noncompliance with a permanency plan is supported by clear and convincing evidence. 

Additionally, we hold that clear and convincing evidence supports the trial court‟s finding 

that termination is in the child‟s best interest. Because the record contains clear and 

convincing evidence to support one statutory ground for termination and that termination is 

in the child‟s best interest, we affirm the trial court‟s termination of the mother‟s parental 

rights.

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

and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,

C.J., and W. NEAL MCBRAYER, J., joined.

Seth Crabtree, Cookeville, Tennessee, for the appellant, Jennifer D.

Herbert H. Slatery, III, Attorney General and Reporter; Madeline B. Brough, Assistant 

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

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Jennifer D. (“Mother”) is the biological mother of Navada D. (born in December 

2007) and Destiny S. (born in January 2010). Navada and Destiny have different biological 

fathers, both of whom were largely absent during the early stages of the children‟s lives. 

Destiny is the only child at issue in this appeal. 

On April 16, 2013, Mother was pulled over by a state trooper who witnessed her 

driving erratically on Interstate 40. The trooper observed that Destiny was unrestrained in 

the car‟s back seat without an appropriate booster seat. The trooper observed that Mother‟s 

eyes were watering and administered five standardized field sobriety tests. Mother failed two 

of the field sobriety tests and, although she denied having consumed any medication, 

admitted to having Xanax and morphine pills in her possession. The trooper placed Mother 

under arrest and transported her to a medical center where she tested positive for Xanax. 

Mother was charged with DUI and reckless endangerment as a result of the incident. She 

later pled guilty to those charges and was sentenced to 11 months and 29 days of supervised 

probation. 

Several days later, the Tennessee Department of Children‟s Services (“DCS”) 

received a report detailing the circumstances of Mother‟s arrest and arranged a meeting with 

Mother to discuss the incident. During the meeting, Mother admitted to having taken Xanax 

and morphine prior to her arrest and stated that she had been struggling with addiction to pain 

medication since being diagnosed with degenerative disc disease at age 14. She explained 

that she was often prescribed pain medication in the years that followed but had been 

purchasing pain pills off the street at times when she could not get them legally. Following 

the meeting, DCS opted against taking court action if Mother would enter a drug treatment 

program. 

Mother completed drug treatment programs in May and June 2013 but relapsed shortly 

thereafter. In August 2013, DCS filed a petition to have Destiny and Navada adjudicated 

dependent and neglect in the Putnam County Juvenile Court. In the petition, DCS requested 

that the court determine whether the circumstances of Mother‟s arrest constituted severe 

child abuse but asserted that the children‟s best interests would be served by remaining in 

Mother‟s home so long as she complied with a stringent protective supervision plan. In 

September 2013, the court entered an order adjudicating the children dependent and 

neglected upon Mother‟s stipulation. The court did not make a finding of severe child abuse 

and ordered that the children remain in Mother‟s custody under the protective supervision of 

DCS. The court also outlined a protective supervision plan requiring Mother to cooperate 
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and maintain regular contact with DCS workers, maintain a lifestyle free of substance abuse, 

submit to random drug screens and home visits, and complete an alcohol and drug 

assessment. 

Mother agreed to the court‟s protective supervision plan, and the children continued to 

reside with her in the home of their maternal grandmother, who had been diagnosed with 

cancer and was in very poor health. Mother completed intensive outpatient program 

treatment in October 2013 but relapsed once again as her mother‟s health deteriorated. On 

January 17, 2014, Mother tested positive for oxycodone. The following week, she missed a 

hair follicle drug screen and a probation meeting, opting instead to remain in the hospital 

with her mother, who was in the final stages of her battle with cancer.1The missed probation 

meeting resulted in Mother‟s arrest on February 9, 2014. Mother tested positive for THC and 

suboxone while she was incarcerated and tested positive for opiates shortly after her release. 

Mother claimed that she had a valid prescription for hydrocodone but did not provide proof 

of the prescription to DCS. 

On March 7, 2014, DCS received a report alleging that Mother was abusing marijuana 

and pain pills, that she attempted to circumvent drug screens by using the children‟s urine, 

and that the children often went without food. Thereafter, DCS made several attempts to 

meet with Mother, but Mother reported that she was out of town and the children were with a 

babysitter. DCS caseworker Felecia Winningham finally met with Mother and the children at 

their home on March 18, 2014. Shortly thereafter, DCS filed a motion seeking temporary 

custody of the children. 

On March 27, 2014, the trial court entered an order on DCS‟s motion for temporary 

custody. The court found that Mother‟s home was cluttered to the point that Ms. 

Winningham was unable to walk into the bedrooms during her visit. Navada was at home 

during the visit although it was a school day and he stated that he was not sick. When Ms. 

Winningham asked to speak to Navada in his bedroom, he began to cry and told her that he 

had been instructed not to allow her in there. Ms. Winningham asked Navada whether he 

had ever provided urine samples for Mother, and he admitted that he had done so on five 

occasions. Ms. Winningham administered a urine drug screen to Mother, who tested positive 

for suboxone although she denied having used the drug. The court also found that DCS had 

received reports of the children going to school hungry and without weather-appropriate 

clothing, and that the schools sent clothes and food home with the children on several 

occasions. Based on its findings, the court granted DCS‟s motion for temporary custody of 

Navada and Destiny, and both children were placed in foster care. 

 

1 Mother testified that her mother passed away on January 26, 2014. 
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Shortly after the children‟s removal, DCS met with Mother to discuss the steps she 

would need to take to regain custody. On May 6, 2014, Mother participated in the 

development of a permanency plan with the goal of reunification. Although the initial 

permanency plan did not contain a statement of responsibilities section, the testimony at trial 

was consistent that Mother‟s primary obligations were to secure safe and stable housing, 

maintain a legal income, complete an alcohol and drug assessment, and complete a 

psychological assessment and follow recommendations. 

In October 2014, Mother suffered a severe work-related injury to her arm. Despite 

Mother‟s history of addiction, it was immediately clear to the parties that Mother might 

require prescription medication to manage pain associated with the injury. On October 28, 

2014, DCS met with Mother to develop a new permanency plan with requirements aimed at 

balancing Mother‟s need for pain medication following her injury with her history of 

substance abuse. The new permanency plan also added the dual goal of adoption for Destiny 

and addressed concerns regarding Mother‟s mental health and lack of suitable housing.2 

With regard to substance abuse, the plan required Mother to provide DCS with affidavits 

from her treating physician stating the physician‟s knowledge of Mother‟s history of 

addiction and stating the necessity of any prescribed narcotic drugs, complete an alcohol and 

drug assessment to assess her potential for relapse, refrain from associating with drug users, 

participate in parenting services, take medication only as prescribed, report any changes in 

prescribed medications to DCS within three days and provide documentation from the 

pharmacy in which the prescription was filled, make prescriptions available for random pill 

counts, and submit to urine and hair follicle drug screens. With regard to mental health, the 

plan required Mother to sign releases of information to allow open communication between 

providers and DCS, attend scheduled appointments with a mental health provider, and 

complete a psychological assessment. Finally, with regard to housing, the plan required 

Mother to secure safe and stable housing, maintain a legal means of support, allow monthly 

home visits, and demonstrate an ability to make monthly utility and rent payments. 

In the meantime, Navada‟s biological father began to play an increased role in his life. 

Their relationship developed to the point that Navada was removed from foster care to begin 

a 90-day trial home visit with his father in March 2015. At the end of the trial home visit, the 

trial court transferred custody of Navada to his father. Destiny, whose father was 

incarcerated in Ohio at all times relevant to this case, remained in foster care. 

 

2 Although Mother was living with her boyfriend and his family at the time, she represented to DCS 

caseworkers that the children would not live there if they were returned to her. 
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On May 15, 2015, DCS filed a petition to terminate Mother‟s parental rights to 

Destiny.3The petition alleged that termination of Mother‟s parental rights was supported on 

four statutory grounds. First, it alleged that Mother abandoned Destiny by willfully failing to 

support her. Second, it alleged that Mother was in substantial noncompliance with her 

permanency plan. Third, it alleged that the conditions that led to Destiny‟s removal, i.e., 

Mother‟s substance abuse and inability to provide a suitable home, still persisted and were 

unlikely to be remedied at an early date. Fourth, it alleged that Mother severely abused 

Destiny by driving under the influence of intoxicants with Destiny unrestrained in the car. 

Additionally, the petition alleged that terminating Mother‟s parental rights would be in 

Destiny‟s best interest. 

The trial court conducted a hearing on the termination petition on October 6, 2015, 

and the following evidence was presented. At the time of the hearing, Mother had been 

living in a two-bedroom apartment for approximately a month. However, she did not have a 

lease on the apartment and only lived there on a month-to-month basis. She had been 

exercising monthly in-person visitation and bi-weekly phone visitation with Destiny. She 

was working part-time in a staffing office and attending physical therapy three days a week 

for her arm. Since her injury, Mother had undergone three surgeries to insert metal plates 

into her arm. Despite being prescribed pain medication after each surgery, she had not 

provided pharmacy records, made her medication available for a pill count, or submitted an 

affidavit from her treating physician. She had not submitted to a urine drug screen in over a 

year and had only submitted to one hair follicle drug screen in which she tested positive for 

prescribed medication. She had completed a psychological assessment but had not completed

an alcohol and drug assessment or attended parenting classes. 

Karen Seals was a team coordinator for Omni Community Health, a private foster care 

agency with whom DCS had contracted for services. She testified that although four DCS 

caseworkers had been assigned to Mother throughout the case, she had been involved with 

the case in a supervisory capacity since the time Destiny was placed in foster care. Ms. Seals 

met with Mother for the first time in April 2014 to discuss the reasons the children had been 

removed from her custody. Mother did not express any misunderstanding regarding the steps 

she needed to take to regain custody of the children. She also knew that noncompliance with 

her permanency plans could lead to termination of her parental rights. To Ms. Seals‟s

knowledge, the psychological assessment was the only permanency requirement Mother had 

fulfilled. Although she admitted that caseworkers could have done more to get Mother 

alcohol and drug treatment, Ms. Seals denied having represented Mother could not complete 

 

3

The petition also sought to terminate the parental rights of Destiny‟s biological father, Robert S. Robert S. 

voluntarily surrendered his parental rights to Destiny prior to the termination hearing in this case and is not a 

party on appeal.
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an alcohol and drug assessment while she was prescribed medication for her arm. She 

testified that caseworkers had difficulty locating Mother and getting her to submit to urine 

drug screens. On one occasion, Mother stated that her attorney advised her against taking a 

urine drug screen. 

DCS team leader Mary Gabbert testified that she had been assigned to the case shortly 

after the termination petition was filed and discussed Mother‟s permanency requirements 

with her on two occasions. She offered to help Mother in completing the permanency 

requirements, but Mother never took advantage of it. When Ms. Gabbert questioned Mother 

about completing an alcohol and drug assessment, Mother insisted that she would do it when 

she came off her prescribed medication. During a three-hour visitation in May 2015, Ms. 

Gabbert attempted to administer a urine drug screen, but Mother claimed she could not go to 

the bathroom. Ms. Gabbert testified that Mother did not allow DCS caseworkers to visit her 

home for the majority of the case. DCS verified Mother‟s apartment and received proof of 

utility and rent payments less than a week before the termination hearing. Ms. Gabbert stated 

that Mother had not resolved the issues that caused Destiny to be placed in foster care and it 

would not be safe to return Destiny to her care at that time. 

Sumner Deason was Mother‟s DCS caseworker from May 2015 through the 

termination hearing. Ms. Deason testified that she made offers to help Mother with her 

permanency requirements, but Mother “shrugged them off.” Mother refused four urine drug 

screens in 2015 and insisted on waiting to get off prescribed medication before she would 

complete an alcohol and drug assessment. Prior to in-person visitations, Ms. Deason asked 

Mother to provide her medication for pill counts, but Mother claimed to forget each time. 

She also provided Mother with an affidavit to have signed by her physician, and Mother 

never returned it. Although Mother‟s apartment at the time of the hearing was appropriate, 

Ms. Deason was unable to assess the suitability of Mother‟s home until five days prior to the 

termination hearing. Prior to that time, Mother would not tell Ms. Deason where she was 

living and stated only that she was living with her aunts off and on. Ms. Deason 

acknowledged that she could have done more to assist Mother in completing the permanency 

requirements but added that she would have been willing to provide additional services if 

Mother had met her halfway. Mother did not appear to be interested in taking advantage of 

help and did not appear to care until the months immediately preceding the termination 

hearing. 

Destiny‟s foster mother testified that Destiny had been living with her family since 

coming into foster care in March 2014. When Destiny came into foster care, she was 

unpredictable, had not been potty trained, and had severe visual problems. Since that time, 

Destiny has been doing very well in her home and developed a strong bond with her foster 

family. Destiny‟s foster parents took her to the eye doctor, and she eventually had eye 
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surgery to correct her vision. Her foster mother testified that DCS initially set up phone 

visitation between Mother and Destiny twice a week at 4:00 p.m., but the calls had been 

moved to 3:45 p.m. so that Destiny could attend karate practice. She stated that Mother only 

participated in approximately 50% of the calls, and Destiny was largely indifferent to them. 

She testified that she considered Destiny a member of her family, and they intended to adopt 

her if Mother‟s parental rights were terminated. 

Mother testified that her drug use was the primary reason the children were removed 

from her custody. She was “doing very badly” around the time that her mother died, and she 

agreed that remaining in her care was not in the children‟s best interest at that time. She 

insisted, however, that it was not in Destiny‟s best interest to be permanently removed from 

her care. She explained that she had recently moved into a suitable two-bedroom apartment 

and had been drug-free since coming off prescription medication for her arm surgery three 

weeks earlier. Nevertheless, Mother testified on cross-examination that she had been to the 

emergency room “forty or fifty times” in 2015, and that most of those visits were for kidney 

stones for which she was often prescribed pain medication. 

Regarding her permanency plan requirements, Mother completed a psychological 

assessment in April 2015 and started attending mental health counseling several months prior 

to the termination hearing. Mother acknowledged the importance of completing an alcohol 

and drug assessment but insisted that she thought she could not complete an assessment 

while on prescribed medication. She testified that her failure to submit to urine drug screens 

was the result of difficulty urinating caused by kidney stones and admitted that her attorney 

had never advised her against it. She explained she had no problems with hair follicle drug 

screens and pointed out that she had submitted to one in June 2015. She acknowledged that 

she had not provided pharmacy records or returned the physician‟s affidavit but testified that 

she signed a release allowing DCS to access her medical information. Mother stated that she 

had missed some phone visitations with Destiny because she was not able to call at 3:45 p.m.

She contacted Ms. Deason and requested that the calls be moved back to 4:00 p.m. 

Evelyn Dyer is Mother‟s aunt and testified that she reconnected with Mother after 

running into her at the store several months prior to the termination hearing. Ms. Dyer 

provides support to Mother by taking her to lunch and driving her to visitations with the 

child. Ms. Dyer testified that Mother loves the child very much and that she would be 

willing to help Mother with Destiny in any way she can. 

The trial court entered an order terminating Mother‟s parental rights to Destiny on 

December 23, 2015. Based on the evidence presented at the termination hearing, the trial 

court found that DCS established three grounds for terminating Mother‟s parental rights: (1) 

substantial noncompliance with a permanency plan, (2) persistent conditions, and (3) severe 
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child abuse. Additionally, the trial court found that termination of Mother‟s parental rights 

was in Destiny‟s best interest. Mother timely filed a notice of appeal. 

II. ISSUES

Mother raises the following issues on appeal, restated from her appellate brief:

1. Whether the trial court‟s finding that termination of Mother‟s parental 

rights is in Destiny‟s best interest is supported by clear and convincing 

evidence. 

2. Whether the trial court erred in denying Mother‟s motion for a continuance 

to require DCS to respond to her pretrial interrogatories with written answers. 

Although Mother does not challenge the grounds relied on by the trial court in 

terminating her parental rights, the Tennessee Supreme Court has directed this Court to 

review the record to determine whether there is clear and convincing evidence to support the 

trial court‟s findings both with regard to each ground for termination and as to whether 

termination is in the child‟s best interests, regardless of whether the parent challenges those 

findings on appeal. In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016). We will 

therefore review the trial court‟s findings as to each of the three grounds for termination in 

addition to the issues argued in Mother‟s brief. 

III. STANDARD OF REVIEW

“A biological parent‟s right to the care and custody of his or her child is among the 

oldest of the judicially recognized liberty interests protected by the due process clauses of the 

federal and state constitutions.” In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007) 

(citing Troxel v. Granville, 530 U.S. 57, 65 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 

(Tenn. 1993)); In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005). Although a 

parent‟s right is fundamental and superior to the claims of other persons and the government, 

it is not absolute. In re J.C.D., 254 S.W.3d at 437. A parent‟s right “continues without 

interruption only as long as a parent has not relinquished it, abandoned it, or engaged in 

conduct requiring its limitation or termination.” Id.; see also In re M.J.B., 140 S.W.3d 643, 

653 (Tenn. Ct. App. 2004). 

In Tennessee, proceedings to terminate parental rights are governed by statute. A 

party seeking to terminate parental rights must prove two things. First, the party must prove 
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the existence of at least one of the statutory grounds for termination.4 Tenn. Code Ann. § 36-

1-113(c)(1); In re Angela E., 303 S.W.3d 240, 251 (Tenn. 2010). Second, the party must 

prove that terminating parental rights is in the child‟s best interests.5 Tenn. Code Ann. § 36-

1-113(c)(2); In re Angela E., 303 S.W.3d at 251. In light of the fundamental rights at stake 

in a termination proceeding, the grounds for termination and best interest inquiry must be 

established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1); In re 

Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). Clear and convincing evidence “establishes 

that the truth of the facts asserted is highly probable . . . and eliminates any serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.” In re 

M.J.B., 140 S.W.3d at 653.

In light of the heightened burden of proof in parental termination cases, a reviewing 

court must modify the customary standard of review set forth in Tennessee Rule of Appellate 

Procedure 13(d). First, we review the trial court‟s specific factual findings de novo with a 

presumption of correctness unless the evidence in the record preponderates otherwise. Tenn. 

R. App. P. 13(d); In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013). Second, we must 

determine whether the facts, as found by the lower court or as supported by a preponderance 

of the evidence, amount to clear and convincing evidence that the elements necessary to 

terminate parental rights have been established. In re Taylor B.W., 397 S.W.3d at 112; In re 

Bernard T., 319 S.W.3d at 596-97. Whether the facts are sufficient to support termination of 

parental rights is a conclusion of law, which we review de novo with no presumption of 

correctness. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007) (citing In re 

Valentine, 79 S.W.3d at 548). 

In addition to those issues directly related to the termination of her parental rights, 

Mother challenges the trial court‟s ruling on an issue of pretrial discovery. On appeal, we 

review a trial court‟s pretrial discovery decisions using an abuse of discretion standard. West 

v. Schofield, 460 S.W.3d 113, 120 (Tenn. 2015). Under the abuse of discretion standard, we 

only disturb a trial court‟s ruling if it applies an incorrect legal standard, reaches an illogical 

conclusion, bases its decision on a clearly erroneous assessment of the evidence, or employs 

reasoning that causes an injustice to the complaining party. Id. 

IV. GROUNDS FOR TERMINATION

 

4

The statutory grounds for terminating parental rights are listed in Tennessee Code Annotated section 36-1-

113(g). The petitioner needs only to establish the existence of one of the twelve statutory grounds to support 

an order terminating parental rights when termination is in the best interests of the child. In re Valentine, 79 

S.W.3d 539, 546 (Tenn. 2002).

5

The factors to be considered in a “best interests” analysis are listed in Tennessee Code Annotated section 36-

1-113(i).
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First, we will address the grounds relied on by the trial court in terminating Mother‟s 

parental rights. The trial court found that termination of Mother‟s parental rights was 

supported on three grounds: (1) substantial noncompliance with a permanency plan, (2) 

persistent conditions, and (3) severe child abuse. See Tenn. Code Ann. § 36-1-113(g)(2), (3), 

(4). Mother does not challenge any of the grounds on appeal. Nevertheless, as we explained 

above, this Court must determine whether the record contains evidence sufficient to support 

the trial court‟s findings with regard to each ground for termination regardless of whether the 

parent challenges those findings on appeal. In re Carrington H., 483 S.W.3d at 525-26. We 

will therefore review the evidence in the record supporting the trial court‟s findings as to 

each ground for termination. 

1. Substantial Noncompliance

The first statutory ground relied on by the trial court to terminate Mother‟s parental 

rights was substantial noncompliance with a permanency plan. Before we address the merits 

of the trial court‟s findings on this ground, however, we feel it necessary to express several 

concerns raised by the permanency plans in this case. 

Tennessee Code Annotated section 37-2-403 directs DCS to prepare a permanency 

plan within 30 days of a child‟s placement in foster care and provides that the court must 

review, modify, and ratify or approve of the plan within 60 days of the foster care placement. 

Tenn. Code Ann. § 37-2-403(a)(1)(A), (a)(2)(A). It further provides that the permanency 

plan for any child in foster care “shall include a statement of responsibilities between the 

parents, the agency and the caseworker of such agency.” Tenn. Code Ann. § 37-2-

403(a)(2)(A). Here, the children were placed in foster care on March 27, 2014. The initial 

permanency plan was developed more than 30 days later on May 6, 2014 and ratified nearly 

10 months later on January 22, 2015. More egregiously, however, the initial permanency 

plan does not include a section labeled as the “statement of responsibilities.” In fact, it does 

not contain any section listing Mother‟s permanency responsibilities. That omission is not a 

mere technicality. As we stated in a previous case:

“[T]he statute that sets out this ground for termination states that parental 

rights may be terminated where there is substantial noncompliance „with the 

statement of responsibilities‟ in the permanency plan.” Moreover, the 

statement of responsibilities serves a substantive purpose. If the parent is 

required to comply with the permanency plan, then the permanency plan 

should clearly communicate to the parent: this is what you must do to regain 

custody of your child. That is the purpose of the parent‟s statement of 

responsibilities. Thus, the absence of a clearly marked “statement of 
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responsibilities” for Mother in the permanency plan is a significant problem. It 

is difficult for the Court to find that Mother failed to substantially comply with 

the plan‟s statement of responsibilities if the plan does not contain one.

In re Abigail F.K., No. E2012-00016-COA-R3-JV, 2012 WL 4038526, at *13 (Tenn. Ct. 

App. Sept. 14, 2012) (internal citations omitted); see also In re Navada N., No. M2015-

01400-COA-R3-PT, 2016 WL 3090908, at *18 (Tenn. Ct. App. May 23, 2016). 

Nevertheless, despite the initial permanency plan‟s shortcomings, Mother cannot 

escape the conditions placed on her in this case. The timing requirements of Section 37-2-

403 are directory and not mandatory. In re A.W., 114 S.W.3d 541, 546 (Tenn. Ct. App. 

2003). Mother‟s testimony reflects that she was aware of the conditions placed on her from 

the earliest stages of this case. Moreover, a second permanency plan, developed in October 

2014, lists each of Mother‟s permanency requirements in an appropriately marked “statement 

of responsibilities” section. Mother does not argue on appeal nor did she testify at trial that 

she was unaware of her responsibilities under the permanency plan. She was represented by 

counsel at all pertinent times in this case and has never objected to the continuing 

applicability of the plans. Accordingly, we will address the merits of this ground for 

termination. 

Parental rights may be terminated for substantial noncompliance with the statement of 

responsibilities contained in a permanency plan, Tenn. Code Ann. § 36-1-113(g)(2), so long 

as the plan‟s requirements are “reasonable and related to remedying the conditions which 

necessitate foster care placement.” Tenn. Code Ann. § 37-2-403(a)(2)(C). As we have 

emphasized in the past, noncompliance alone is not sufficient to warrant extinguishing the 

parent-child relationship. See, e.g., In re M.J.B., 140 S.W.3d at 656 (“Terminating parental 

rights . . . requires more proof than that a parent has not complied with every jot and tittle of 

the permanency plan.”). To warrant termination, the parent‟s noncompliance must be 

“substantial.” In re Valentine, 79 S.W.3d at 548. Substantial noncompliance is measured by 

both the degree of noncompliance and the weight assigned to the particular requirement. Id. 

“Trivial, minor, or technical deviations from a permanency plan‟s requirements will not be 

deemed to amount to substantial noncompliance.” In re M.J.B., 140 S.W.3d at 656-57.6 

 

6

In past cases, this Court has stated the additional requirement that DCS must make reasonable efforts to assist 

the parent in meeting the requirements of the permanency plan. See, e.g., In re Arteria H., 326 S.W.3d 167, 

177 (Tenn. Ct. App. 2010). In 2015, however, the Tennessee Supreme Court clarified that Tennessee Code 

Annotated section 36-1-113 does not require proof of reasonable efforts as a precondition to termination. In re 

Kaliyah S., 455 S.W. 3d 533, 554 (Tenn. 2015). The court concluded that proof of reasonable efforts should 

be considered, but not necessarily dispositive, only with regard to abandonment by failure to establish a 

suitable home and the best interests of the child. Id. at 554 n.29, 555. 
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The trial court made the following findings with regard to substantial noncompliance:

21. The requirements in the permanency plans are all reasonably related to 

remedying the conditions that necessitate foster care.

22. [Mother] has not completed the following requirements in the permanency 

plans: she has not provided DCS with an affidavit from the physician [who] 

prescribes her narcotics stating her need for the narcotics is greater than the 

risk from addiction; she has not submitted to an A&D assessment since the 

child has been in custody and has had not submitted to A&D treatment since

the child has been in State‟s custody; she has not provided DCS with pharmacy 

records to show filled prescriptions; she has not submitted to random pill 

counts; since at least January 1, 2015 she has refused all urine drug screens; 

she has not completed parenting training; she has not allowed DCS to visit her 

home until five days before this trial; and she has not provided DCS with proof 

of attending her mental health appointments.

23. [Mother] has not substantially complied with the provisions of the 

permanency plans and therefore her parental rights should be terminated 

pursuant to Tenn. Code Ann. § 36-1-113(g)(2).

We agree with the trial court‟s finding that the permanency requirements are 

reasonable and appropriate. The children were placed in foster care due to Mother‟s lack of 

suitable housing and substance abuse. The record reflects that DCS also had concerns at the 

time regarding Mother‟s mental health. The permanency requirements are aimed at 

remedying those conditions. Additionally, the requirements aimed at allowing DCS to 

closely monitor Mother‟s use of prescribed medication after her injury are appropriate in 

light of her past struggles with addiction. 

The record reflects that Mother failed to comply at all with many of the permanency 

plan requirements. Mother failed to take a parenting class. She failed to allow monthly 

home visits. She failed to return the signed physician‟s affidavit that DCS provided to her. 

She failed to make her medication available for pill counts despite being reminded to bring 

them to visitation. She failed to provide pharmacy records showing filled prescriptions. She 

refused four urine drug screens in 2015. Although Mother testified that her kidney stones 

made it difficult to urinate, the record does not reflect that she was unable to urinate in each 

instance. Ms. Seals testified that on one occasion, Mother claimed that her attorney advised 

her against it. On cross-examination, Mother admitted that her attorney never gave her that 

advice. On another occasion, Mother refused a urine drug screen because she said she did 

not want to do it in a public bathroom. Finally, Mother failed to complete an alcohol and 
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drug assessment. We note that the record is unclear as to whether Mother‟s belief that she 

could not complete an assessment while on prescribed medication was justified. Mother 

testified that Ms. Seals said she would not be accepted for treatment while she was being 

prescribed pain medication. Although Ms. Seals denied having made such a statement, 

Mother‟s position is bolstered by the trial court‟s statement in a January 2015 order that, 

“[Mother] will have to submit to another A&D assessment once she has completed her 

prescribed medication.” Nevertheless, at the time of the hearing, Mother had still not taken 

any steps towards completing an assessment despite testifying that she had been off 

prescription medication for three weeks. As such, we are unwilling to hold that she was 

excused from complying with that permanency requirement.

Given the degree of noncompliance and the weight assigned to the particular 

requirements, Mother‟s noncompliance was substantial. The majority of the permanency 

requirements Mother failed to complete were aimed at addressing her substance abuse issues. 

Mother‟s addiction to prescription medication has been a primary concern in this case from 

the very beginning. It was Mother‟s arrest after driving under the influence of Xanax and 

morphine with Destiny unrestrained in the car that precipitated DCS‟s initial involvement 

with the family. Mother‟s trial testimony reflected her understanding of the importance DCS 

placed on addressing her issues with addiction throughout the case. Obviously, Mother‟s 

efforts to overcome those issues became considerably more complicated when she suffered a 

severe arm injury in October 2014. In our view, however, that added complexity of Mother‟s 

injury made her compliance with the permanency requirements all the more important. The 

permanency plan developed after the injury reflected an understanding that, despite Mother‟s 

history of addiction, prescription medication would likely be necessary to help her manage 

pain associated with the injury and the surgeries that followed. The plan did not prohibit 

Mother from taking medically necessary prescription pain medication. Rather, it placed 

requirements on her to ensure that the medications prescribed to her were medically 

necessary and that she used them in the manner prescribed. Given her past substance abuse 

issues, it was extremely important that she complied with those requirements. By failing to 

do so, she left DCS without any verifiable evidence that she was not abusing the medication. 

In light of Mother‟s history of addiction and relapse, we cannot excuse her noncompliance 

with those requirements. Accordingly, we hold that the record contains clear and convincing 

evidence to support the trial court‟s finding of substantial noncompliance with Mother‟s 

permanency plan. 

2. Persistent Conditions

The trial court relied on Tennessee Code Annotated section 36-1-113(g)(3) as a 

ground for terminating Mother‟s parental rights. This ground for termination, commonly 

referred to as “persistence of conditions,” applies where:
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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 the 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.

Tenn. Code Ann. § 36-1-113(g)(3). The purpose of the “persistence of conditions” ground 

for terminating parental rights is “to prevent the child‟s lingering in the uncertain status of 

foster child if a parent cannot within a reasonable time demonstrate an ability to provide a 

safe and caring environment for the child.” In re Dakota C.R., 404 S.W.3d 484, 499 (Tenn. 

Ct. App. 2012) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at 

*9 (Tenn. Ct. App. Mar. 3, 2008)). It is focused on the results of the parent‟s efforts at 

improvement rather than the mere fact that he or she has made them. In re Audrey S., 182 

S.W.3d at 874. Thus, a parent‟s failure to remedy the conditions that led to the child‟s 

removal need not be willful. In re Dakota C.R., 404 S.W.3d at 499. 

The trial court made the following findings related to the ground of persistent 

conditions:

24. The child has been removed from the custody of her mother for more than 

six (6) months.

25. The conditions which led to the removal of the child from the home of 

[Mother] still exist and other conditions exist which in all probability would 

cause the child to be subject to further abuse and/or neglect, making it unlikely 

that the child could be returned to [Mother] in the near future.

26. To date, mother has still not addressed her A&D issues by submitting to an 

A&D assessment and following the recommendations.
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27. There is little likelihood that these conditions will be remedied at an early 

date so that the child can be returned to [Mother] in the near future.

28. Mother claimed at trial that the reason she had not taken the A&D 

assessment was because she believed they would not accept her into any 

treatment program while she was taking prescribed narcotics.

29. Mother testified at trial, however, that she was no longer taking any 

narcotic medications but has still failed to complete the assessment.

30. The conditions that led to the removal of the child from the home of 

[Mother] were the mother‟s lack of a suitable home and her A&D issues.

31. The conditions that prevent the child‟s return to the mother‟s home are her 

failure to complete the most important steps on her permanency plan and 

failure to address her A&D issues.

32. The continuation of the parent and child relationship greatly diminishes the 

child‟s chance of an early integration into a stable and permanent home and 

therefore [Mother‟s] parental rights should be terminated pursuant to Tenn. 

Code Ann. § 36-1-113(g)(3). 

In light of the particular circumstances of this case, we are not satisfied that clear and 

convincing evidence supports the trial court‟s reliance on persistent conditions as a ground 

for terminating Mother‟s parental rights. The trial court determined that Mother‟s addiction 

to pain medication was a condition that led to Destiny‟s removal in March 2014 and still 

persisted at the time of the termination hearing in October 2015. In large part, its finding was 

based on Mother‟s noncompliance with the permanency plan requirements aimed at 

addressing her addiction issues. While Mother‟s failure to complete those requirements was 

sufficient to support termination of her parental rights for substantial noncompliance with the 

permanency plan, it did not relieve DCS of its burden to prove that the condition still 

persisted by clear and convincing evidence. 

Under different circumstances, Mother‟s failure to seek treatment between the time of 

removal and the termination hearing might well have supported a finding of persistent 

conditions. We cannot overlook, however, that Mother‟s efforts to stop using pain 

medication, whatever they may have been, were severely disrupted in this case by her arm 

injury and the three surgeries that followed. Mother was prescribed pain medication by her 

treating doctor after the injury and after each surgery, and she testified that her last 
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prescription ended just three weeks before the termination hearing. As a result, her progress 

in overcoming the addiction issues that led to Destiny‟s removal was not clear at the time of 

the hearing. While Mother testified that she had been drug-free in the weeks preceding the 

hearing, a determination that she had overcome her addiction at that point would have been 

highly speculative given her history of relapse. Conversely, however, because Mother was 

prescribed pain medication for a majority of time between Destiny‟s removal and the 

termination hearing,

7

it was not clear that she would continue to use it unnecessarily in the 

future. While we share the trial court‟s concern that there is little evidence of Mother‟s 

efforts to overcome her addiction to pain medication, given the peculiar circumstances of this 

case, we are not satisfied that the record contains sufficient evidence that it still persisted at 

the time of the termination hearing. As such, we hold that the trial court‟s reliance on 

persistent conditions as a ground for terminating Mother‟s parental rights was not supported 

by clear and convincing evidence. 

3. Severe Child Abuse

The trial court relied on its finding of severe child abuse as a ground for termination. 

In Tennessee, a court may terminate parental rights when “[t]he parent or guardian . . . is 

found by the court hearing the petition to terminate parental rights . . . to have committed 

severe child abuse against the child who is the subject of the petition.” Tenn. Code Ann. § 

36-1-113(g)(4). For purposes of parental termination, “severe child abuse” is defined in 

relevant part as: 

The knowing exposure of a child to or the knowing failure to protect a child 

from abuse or neglect that is likely to cause serious bodily injury or death and 

the knowing use of force on a child that is likely to cause serious bodily injury 

or death.

Tenn. Code Ann. § 37-1-102(b)(21)(A)(i). 

The trial court made the following findings with regard to the ground of severe 

child abuse:

33. [Mother] has committed severe child abuse as defined by Tenn. Code Ann. 

§ 37-1-102(21) against [Destiny], who is the subject of this Petition. The 

Respondent‟s actions that constitute severe child abuse were to drive an 

 

7

The record reflects that Destiny was removed from the Mother‟s home by DCS on March 27, 2014. 

Mother was on legally prescribed pain medication from October 2014 to September 2015, about 

three weeks prior to the termination proceeding.
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automobile while under the influence of intoxicants and with the child 

unrestrained in the vehicle placing the child at imminent risk of serious bodily 

harm or death.

34. Trooper Jeff Brown testified at trial that mother was found to be driving 

erratically and that [Destiny] was in the back seat of the vehicle unrestrained 

without an appropriate car seat even present in the vehicle.

35. Mother was also found in possession of Morphine and Xanax which were

not prescribed to her.

36. Mother was charged at that time with DUI and reckless endangerment and 

mother pled guilty to both of these charges.

37. Therefore the Department has proven that mother has committed severe 

abuse of this child and her parental rights should be terminated pursuant to 

Tenn. Code Ann. § 36-1-113(g)(4). 

In our view, the evidence in the record is insufficient to support the trial court‟s 

findings of severe child abuse by Mother under the particular circumstances of this case. As 

its order reflects, the trial court‟s finding of severe child abuse is based solely on Mother‟s 

arrest for DUI and reckless endangerment. Certainly, Mother‟s decision to operate a vehicle 

under the influence of intoxicants with her child unrestrained in the back seat is abhorrent 

and inexcusable. However, DCS workers discussed the incident with Mother approximately 

one week after her arrest and decided that court action was not necessary at that time. 

Additionally, when the trial court adjudicated the children dependent and neglected following 

Mother‟s subsequent failed drug screen, it concluded that “the children‟s safety can be 

adequately protect[ed] with the children remaining in the mother‟s home” and declined to 

make a finding of severe child abuse despite DCS‟s request that it do so. While we do not 

wish to belittle the seriousness of Mother‟s actions, the trial court‟s decision to make a 

finding of severe child abuse in the termination proceedings when it declined the opportunity 

to do so based on the same facts in the dependency and neglect proceedings appears to this 

Court to be incongruous. As such, we hold that the trial court‟s termination of Mother‟s 

parental rights based on severe child abuse was not supported by clear and convincing 

evidence.

Although we have concluded that two of the three statutory grounds relied on by the 

trial court in terminating Mother‟s parental rights were not supported by clear and convincing 

evidence, DCS was only required to prove the existence of one of the statutory grounds in 

order to terminate Mother‟s parental rights. Tenn. Code Ann. § 36-1-113(c)(1); In re 
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Valentine, 79 S.W.3d at 546. Because we have concluded that the trial court‟s finding of 

substantial noncompliance was supported by clear and convincing evidence, we proceed with 

our review of whether terminating Mother‟s parental rights was in Destiny‟s best interest. 

V. BEST INTERESTS

When at least one of the statutory grounds for termination of parental rights has been 

established by clear and convincing evidence, the petitioner must prove by clear and 

convincing evidence that termination of the parent‟s rights is in the child‟s best interests. 

Tenn. Code Ann. § 36-1-113(c)(2); In re Angela E., 303 S.W.3d at 251. Once the court has 

determined that the parent is unfit based on clear and convincing evidence that one or more 

of the grounds for termination exists, the interests of the parent and child diverge, and the 

interests of the child become the court‟s paramount consideration. In re Audrey S., 182 

S.W.3d at 877. Because not all parental misconduct is irredeemable, the statutes governing 

termination of parental rights in Tennessee recognize that terminating the parental rights of 

an unfit parent will not always serve the best interests of the child. Id. If the interests of the 

parent and the child conflict, however, the court must always resolve the conflict in favor of 

the rights and best interests of the child. Tenn. Code Ann. § 36-1-101(d). 

Tennessee Code Annotated section 36-1-113(i) sets forth a list of factors to be 

considered when determining a child‟s best interests in a termination of parental rights case. 

Although courts should consider the statutory factors to the extent that they are relevant to 

the particular facts and circumstances of the case, the list is “not exhaustive, and the statute 

does not require a trial court to find the existence of each enumerated factor before it may 

conclude that terminating a parent‟s parental rights is in the best interest of a child.” In re 

M.A.R., 183 S.W.3d at 667. Depending on the circumstances of the case, the consideration 

of a single factor, or of facts outside the statutory factors, may dictate the outcome of the 

court‟s analysis. In re Audrey S., 182 S.W.3d at 878.

Here, the trial court made the following best interest findings:

1. [Mother] has not made an adjustment of circumstances, conduct or 

conditions as to make it safe and in the child‟s best interest to be in the home 

of the parent.

2. While the Court agrees that the mother has made some improvements in 

her situation very recently (and after the filing of the Petition for Termination), 

the Court finds that these improvements are simply too late and the best 

interest analysis must be made from the viewpoint of the child.
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3. [Mother] has committed brutality, physical, sexual, emotional or 

psychological abuse or neglect toward other child in the family or household.

4. Mother admitted at trial that her drug use has resulted in her loss of the 

custody of all three of her children.

5. [Mother‟s] use of alcohol or controlled substances renders her consistently 

unable to care for the child [in] a safe and stable manner.

6. Mother testified in Court that she was no longer taking any narcotic 

medication but her most recent hair follicle drug screen was positive for 

narcotics and mother never provided proof of any prescription.

7. Mother has known since the inception of the case that an A&D assessment 

would be necessary, yet she has consistently declined to submit to the 

assessment.

8. Mother has known since the inception of the case that random drug 

screens would be required but told her caseworker that her attorney told her 

not to take them.

9. Mother admitted at trial that her attorney did not give her this advice.

10. [Mother‟s] emotional status would be detrimental to the child and/or 

prevent her from effectively providing safe and stable care and supervision for 

the child.

11. Mother testified at trial that she was attending mental health treatment, but 

admitted that she had only recently begun this treatment (after the Petition for 

Termination was filed) and had not notified the Department that she was 

attending so that the records could be requested until the month before trial.

12. [Mother] has not paid child support consistently with the child support 

guidelines promulgated by the Department pursuant to Tenn. Code Ann. § 36-

5-101.

13. The Court is not limited to considering the factors set out in Tenn. Code 

Ann. §§ 36-1-113(i) 1-9 and also considers the following factors in 

determining whether termination of parental rights is in the best interest or the 

child.
- 20 -

14. [Mother] has not paid a reasonable portion of the child‟s substitute 

physical care and maintenance when financially able to do so.

15. Mother has not provided a significant amount of food, clothing, diapers, 

toiletries, school supplies, books, toys, etc. for the child, despite her testimony 

that she has had steady income for over a year.

16. [Mother] continues to make lifestyle choices that prevent her from being 

able to parent the child or to provide a home for the child by still failing to 

address the issues that led to removal — namely her A&D issues.

17. The child is placed in a foster home that wishes to adopt the child.

18. The child has established a strong bond with the foster parents.

19. The child needs to be released from the stigma of being a foster child.

Mother contends that DCS‟s lack of reasonable efforts to assist her is determinative of 

the best interest inquiry in this case. She argues that DCS‟s efforts to assist her in remedying 

the conditions that led to Destiny‟s removal fell so far below acceptable standards that 

termination of her parental rights is not in Destiny‟s best interest. In support of this 

argument, she points to numerous alleged deficiencies in the services provided by DCS in 

this case. She points out that five different caseworkers were assigned to her since DCS first 

became involved with the family in April 2013. She asserts that the lack of consistency made 

it difficult to establish substantive relationships and maintain regular communication. 

Additionally, she maintains that the caseworkers failed to provide meaningful assistance to 

her throughout the case. She points to Ms. Seals‟s testimony that the efforts of one 

caseworker were not sufficient and that the delays in getting permanency plans ratified were 

unreasonable and inexcusable. She also points to Ms. Deason‟s testimony that she could 

have done more to assist Mother in completing her permanency requirements. She argues 

that caseworkers provided little assistance to her beyond offering rides, administering drug 

tests, and being available to answer questions after the children were removed from her 

custody. In light of those alleged deficiencies, Mother contends that the lack of reasonable 

efforts weighs so heavily in this case that termination of her parental rights was not in 

Destiny‟s best interest.

We are not persuaded by Mother‟s argument. While the record reflects that DCS 

assistance in this case was far from ideal, it does not outweigh the clear and convincing 

evidence that terminating Mother‟s parental rights is in Destiny‟s best interest. Prior to their 
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removal, Mother was unable to provide her children with a safe and stable home. In April 

2013, she was arrested for driving under the influence of intoxicants with Destiny 

unrestrained in the car. Despite the fact that her addiction was clearly a threat to the 

children‟s safety, Mother was given the opportunity to attend treatment and retain custody of 

them but relapsed twice and continued abusing pain medication. In March 2014, a DCS 

caseworker visited Mother‟s home and reported that it was “cluttered, dirty, and unsanitary.” 

The children had head lice and went to school hungry and without weather-appropriate 

clothing. 

Although Mother admitted that the children‟s best interest was served by their removal 

in March 2014, she argues that she has made significant improvements since that time. At 

the time of the hearing, Mother was working and living in an appropriate two-bedroom 

apartment. She had reconnected with an aunt who testified that she would provide support 

for Destiny. Additionally, according to her own testimony, she had not taken pain 

medication in the three weeks since finishing treatment for her arm injury. While we 

commend Mother for those efforts, her progress is somewhat speculative. For the majority of 

the case, Mother failed to keep DCS apprised of her living arrangements, reporting only that 

she was staying with a friend or family member without providing a specific address. 

Although she moved into an appropriate apartment roughly a month before the hearing, she 

does not have a lease and lives there on a month-to-month basis. Thus, it is unclear the 

extent to which Mother‟s living arrangement at the time of the hearing can be considered 

stable. Likewise, we cannot overlook that Mother was given multiple opportunities to stop 

using pain medication and retain custody of her children at the outset of this case and, despite 

undergoing treatment for her addiction, relapsed twice. After her arm injury, DCS efforts to 

monitor Mother‟s use of prescription pain medication were thwarted by her failure to comply 

with permanency requirements. Moreover, despite testifying that she had been off the 

medication for three weeks at the time of the hearing, Mother still had not made any effort to 

undergo an alcohol and drug assessment. As such, her claim of having overcome her 

addiction and being drug-free was supported only by her own testimony. 

Meanwhile, the record reflects that Destiny has been residing in a loving foster home 

since she was removed from Mother‟s custody. Her foster mother testified that Destiny has a 

strong bond with her family and that they wish to adopt her. She is involved in 

extracurricular activities and receives the medical attention and resources she needs to thrive. 

In our view, Destiny‟s best interests would not be served by removing her from the stable and 

nurturing environment she now enjoys. This is particularly the case when Mother‟s ability to 

meet the child‟s long-term needs is speculative at best. We are therefore satisfied that clear 

and convincing evidence supports the trial court‟s finding that termination is in Destiny‟s 

best interest. 
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VI. RULE 33.03

Finally, we address Mother‟s contention that the trial court erred in denying her 

motion for DCS to be required to provide specific answers to her interrogatories rather than 

copies of their business records under Tennessee Rule of Civil Procedure 33.03. Rule 33.03 

allows a party served with interrogatories to forgo providing a comprehensive written 

response in certain circumstances. The rule provides that if the answer to an interrogatory 

may be ascertained from the responding party‟s business records, and the burden of 

ascertaining the answer is substantially the same for each party, the party served may respond 

to the interrogatory by producing the relevant records and allowing the interrogating party a 

reasonable opportunity to review them. Tenn. R. Civ. P. 33.03.

Mother argues that the trial court abused its discretion in denying her motion because 

DCS failed to demonstrate that the answers to her interrogatory could be derived from the 

business records it provided and failed to specify the records in sufficient detail. However, 

the interrogatory in question is not included in the record on appeal nor has Mother identified 

the records DCS produced in response to it. As the appellant, Mother had a duty to prepare a 

record that conveyed a fair, accurate, and complete account of what transpired in the trial 

court in order to allow meaningful review on appeal. Jennings v. Sewell-Allen Piggly 

Wiggly, 173 S.W.3d 710, 713 (Tenn. 2005); see also Tenn. R. App. P. 24(a). Because the 

record does not contain the relevant documents, we cannot consider this issue. 

VII. CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court to terminate 

Jennifer D.‟s parental rights as to Destiny S. Costs of this appeal are taxed to the appellant, 

Jennifer D. Because Jennifer D. is proceeding in forma pauperis in this appeal, execution 

may issue for costs if necessary.

_________________________________

ARNOLD B. GOLDIN, JUDGE