IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 1, 2019

IN RE DEISHUN M. ET AL.

Appeal from the Juvenile Court for Hamilton County

No. 284-875, 284-877 Robert D. Philyaw, Judge

___________________________________

No. E2019-00777-COA-R3-PT

___________________________________

Jessica T. (“Mother”) appeals the April 3, 2019 order of the Hamilton County 

Juvenile Court (“Juvenile Court”) terminating her parental rights to the minor children,

Deishun M. and Olivia M. (“the Children”). Upon petition of the Tennessee Department 

of Children’s Services (“DCS”), the Juvenile Court terminated Mother’s rights on the 

statutory grounds of severe child abuse and persistent conditions. The Juvenile Court 

further found that termination of Mother’s parental rights was in the best interest of the 

Children. 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 FRANK G.

CLEMENT, JR., P.J., M.S., and KENNY W. ARMSTRONG, J., joined.

Cara C. Welsh, Chattanooga, Tennessee, for the appellant, Jessica T.

Herbert H. Slatery, III, Attorney General and Reporter, and Matt D. Cloutier, Assistant 

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

OPINION

Background

DCS became involved with this family in July 2017, following the death of the 

Children’s sibling, K.M. The Children were removed from the custody of Mother and 

the Children’s father, Travis M. (“Father”), on July 9, 2017. DCS alleged that the 

Children were dependent and neglected and severely abused by the parents. 

11/18/2019
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DCS developed a permanency plan on July 28, 2017. The permanency plan 

provided for Mother to (1) be able to demonstrate knowledge of Deishun’s educational 

issues and special needs at school, (2) remain informed regarding Deishun’s progress, (3)

attend educational meetings regarding Deishun, (4) resolve pending legal issues and not 

incur new criminal charges, (5) provide to DCS a copy of a rental or lease agreement, (6) 

provide to DCS her driver’s license, proof of car insurance, and vehicle registration or 

otherwise present a transportation plan, (7) pay child support, (8) provide proof of a legal 

income or disability to DCS, (9) maintain residential stability “in a clean, safe and 

appropriate home” for a period of six months, (10) comply with a psychological 

evaluation and follow all recommendations therefrom, (11) take all medication as 

prescribed and comply with pill counts, (12) participate in individual or family therapy if 

requested by the treatment provider, (13) maintain visitation with the Children in a 

positive manner, (14) attend meetings at DCS and court hearings, (15) cooperate with all 

service providers and follow their recommendations, (16) complete parenting classes, 

(17) maintain contact with DCS and notify DCS of any changes to her contact 

information within twenty-four hours, (18) complete a parenting assessment and follow 

the resultant recommendations, (19) refrain from engaging in violence with other 

individuals, (20) complete domestic violence classes, (21) participate in all medical 

appointments for Olivia, (22) be informed of Olivia’s medical or dental appointments, 

(23) demonstrate knowledge of Deishun’s medical needs and necessary care, and (24) 

participate in all medical appointments for Deishun. The permanency plan was ratified 

by the Juvenile Court in October 2017 upon the Juvenile Court’s finding that the plan 

was in the best interest of the Children. 

The Juvenile Court conducted an adjudicatory hearing and severe abuse trial on 

four nonconsecutive days occurring in February, March, and April 2018. Following trial, 

the Juvenile Court entered its order finding by clear and convincing evidence that the 

Children were dependent and neglected and severely abused by both parents. As to 

Father, the Juvenile Court found, pursuant to Tennessee Code Annotated § 37-1-

102(b)(22)(A), that Father had severely abused the Children due to his action of leaving 

his three children, K.M. and the Children, in a hot car all day which could have resulted 

in severe bodily injury to the Children and did result in the death of K.M. The Juvenile 

Court found that sufficient evidence was not presented to establish that Mother knew the 

Children and K.M. had been left in a hot car all day and, therefore, did not find that 

Mother had committed severe abuse pursuant to Tennessee Code Annotated § 37-1-

102(b)(22)(A).

However, the Juvenile Court further found that both Mother and Father had 

severely abused the Children, pursuant to Tennessee Code Annotated § 37-1-

102(b)(22)(B), “based on the expert testimony of Dr. [Heather] Gilliam, the home 

environment the children were living in, the parents’ medical neglect of the subject 

children, the condition of the children’s health, and the resulting developmental delays 
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that have been observed in the child, Deishun.” In its adjudicatory hearing and severe 

abuse order, the Juvenile Court found as follows regarding the Children’s circumstances 

that led to the Court’s finding of severe child abuse against Mother:

The Court received numerous photos of the deceased infant, the

subject children, the vehicle, the scene of the death, and the home where the 

family had been living. Several witnesses, including CPD Officers

Rankhorn, Booker and Grafe, testified that the family home was the worst

residence they had ever seen, and the Court agreed that this may have been 

the worst the Court had seen. The Court found that the home was not 

clean, and witnesses who had entered the home testified that there was an 

overpowering smell of urine and/or feces present. The Court also noted 

photographs and testimony regarding numerous roaches present in the 

home, piles of feces (with no evidence or testimony that any pets lived

within the home), clutter, lack of food (some was present but most was

spoiled), the floors were filthy, there was a filthy torn up couch with feces

smeared on it. Overall, the Court found that the apartment where the

family lived was in deplorable condition.

Testimony was also presented that the parents did not take the

children to the doctor, despite their young age and despite Deishun’s

apparent delays. The subject child, Deishun, had not seen a doctor in three 

(3) years. The subject child, Olivia, had not seen a doctor since her birth or 

shortly thereafter. Testimony was heard that the mother had claimed she 

did not get the children vaccinated due to her belief that vaccines could 

cause a mental disorder, but the proof was clear that the children had not 

been vaccinated because the children had not been taken to the doctor or 

any medical provider in years.

The Court heard a substantial amount of testimony and received

medical records regarding the subject child, Deishun. Specifically, the

Court heard proof regarding Deishun’s developmental delays, bruises

observed on his body, black eyes observed on him, his lethargy and

inability to walk well after having been in the father’s vehicle on July 8,

2017. In addition, the Court heard proof regarding Deishun’s low weight.

CPS investigators Catherine Gray and Marilyn Baldwin testified about his

thinness and his ribs being visible when he entered DCS custody. The

Court also heard testimony that Deishun could only speak a few words

upon entering DCS custody.

The Court noted it is unknown how many of Deishun’s

developmental delays were due to the lead that was found to be in his and

Olivia’s system, and for what sustained period of time the children were
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exposed to lead since neither child had seen a doctor who likely would have 

tested for any lead exposure.

Several witnesses testified that the subject children were observed to 

be very protective of their food. Olivia appeared to be in much better 

health than her older brother, Deishun. Deishun was not potty trained at

five (5) years old when he was removed from his parents, but he was potty

trained by the foster parents within a month of being in DCS custody. The

Court found this . . . fact to be significant.

Testimony was heard that the family had lived in the Westside

Chattanooga Housing Authority apartments for the past two (2) years.

On March 12, 2018, the Court heard testimony that the children were 

cleaned up by emergency and police personnel on the scene before being 

transported to Erlanger Medical Center. Earlier testimony had noted the 

smell of the clothes the children were wearing was so bad that it permeated 

the bag into which the clothes were placed. The Court found it deplorable 

that even after the children had been cleaned up, their odor and their clothes 

still smelled offensively bad.

The Court found the testimony from [A.T. (“Ms. A.T.”)], the first 

foster parent, significant to parenting issues. Specifically, Ms. [A.T.] had 

testified that the children did not have any type of schedule, and that they 

did not know when to sleep or when to get up. Ms. [A.T.] testified about 

the children hoarding food. Ms. [A.T.] also testified that the subject child,

Olivia, was so concerned with the whereabouts of the foster parent, she

attempted to sleep standing up within view of the foster parent.

The Court heard testimony from the current foster parents, [D.M. 

(“Ms. M.”) and M.T. (“Ms. T.”)]. They testified that they have been taking 

the subject children to the doctor regularly and their lead levels are

declining. In addition, Deishun is now potty trained and attends school

where he has an individualized education plan (IEP) in place.

Ms. [M.] had testified about how she attempted to get the mother 

away from the father years ago, and that she took the mother and the 

subject child, Deishun, with her to Atlanta when Deishun was still a baby. 

Ms. [M.] testified that the mother only stayed with her about three (3) 

weeks and left with Deishun in the middle of the night. Significantly, the 

mother did not take any of Deishun’s baby supplies with her when she left, 

which the Court found to be a foreshadowing of her lack of care for her 

children.
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Ms. [M.’s] partner, Ms. [T.], testified about the children’s progress 

since being placed in their home. Ms. [T.] stated that the subject children 

now know about forty (40) to fifty (50) words. Deishun attends Wallace A. 

Smith Elementary, where he is in kindergarten. His lead levels have gone 

down some, but they are not yet where they need to be.

* * * 

In addition, pursuant to TCA 37-1-102 (b)(22)(B), the Court found

the subject children are the victims of severe abuse by both the mother and

the father. The Court reviewed a deposition of Dr. Heather Gilliam, M.D.,

an expert in the field of pediatrics, who has treated the subject children in

the Vance Stafford Pediatric Clinic at Erlanger Hospital. The Court found

clear and convincing evidence that the parents committed severe child

[abuse] pursuant to TCA 37-1-102(b)(22)(B) based on the expert testimony 

of Dr. Gilliam, the home environment the children were living in, the 

parents’ medical neglect of the subject children, the condition of the 

children’s health, and the resulting developmental delays that have been 

observed in the child, Deishun.

(Underlining omitted.) The Juvenile Court also ordered that the Children would remain 

in foster care. In May 2018, the Juvenile Court relieved DCS of making any further

reasonable efforts with the parents due to the finding of severe child abuse. Father 

appealed the Juvenile Court’s order, but all parties entered an agreed order on July 9, 

2018, dismissing the appeal to the circuit court.

In October 2018, DCS filed a petition to terminate Mother’s parental rights. The 

Juvenile Court conducted a trial in February 2019. The Juvenile Court entered an order 

in April 2019 finding that DCS had proven by clear and convincing evidence the 

statutory grounds of severe child abuse and persistent conditions. The Juvenile Court 

further found by clear and convincing evidence that termination of Mother’s parental 

rights was in the Children’s best interest. Mother timely appealed to this Court. 

Discussion

Although not stated exactly as such, Mother raises the following issues on appeal: 

(1) whether the Juvenile Court violated Mother’s due process rights by proceeding with 

the termination action when Mother’s criminal charges directly related to the grounds for 

termination were pending, (2) whether the Juvenile Court erred by finding by clear and 

convincing evidence that the conditions leading to the Children’s removal from Mother’s

custody persisted, and (3) whether the Juvenile Court erred by determining by clear and 
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convincing evidence that termination of Mother’s parental rights was in the Children’s 

best interest. 

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 

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 

 

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.”
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(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 

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., 

 

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

3 Tenn. Code Ann. § 36-1-113(i).
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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

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 
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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). 

We first will address Mother’s issue of whether the Juvenile Court violated 

Mother’s due process rights by proceeding with the termination of parental rights trial

when Mother’s criminal charges were pending. According to Mother, the issue of 

whether Mother severely abused the Children “has never been properly litigated” due to 

Mother’s pending criminal charges and the finding of severe child abuse should not be 

considered final until her criminal charges have been resolved. 

Although this Court has determined that pending criminal charges can be a basis 

for continuation of civil proceedings, Mother is not “absolutely entitled” to a stay or 

continuance of the termination proceedings “simply because criminal charges are pending 

against [her].” See Bell v. Todd, 206 S.W.3d 86, 93-94 (Tenn. Ct. App. 2005). Trial 

courts shall, consistent with due process, expedite all contested termination of parental 

rights cases so as to prevent a child from languishing in foster care unnecessarily. See

Tenn. Code Ann. § 36-1-124. The intent of General Assembly was that permanency for 

the child should “not be delayed any longer than is absolutely necessary consistent with 

the rights of all parties” and that the “rights of the child to permanency at the earliest 

possible date” should be prioritized over all other civil litigation other than child 

protective services cases. Tenn. Code Ann. § 36-1-124(c). The decision whether to 

continue the termination proceedings on the basis of Mother’s criminal charges is within 

the discretion of the trial court. Bell, 206 S.W.3d at at 94.

The Juvenile Court found that the prior finding of severe child abuse by Mother in

the dependency and neglect proceedings was res judicata in this case. Following four 

days of trial, the Juvenile Court found by clear and convincing evidence that Mother had 

severely abused the Children, pursuant to Tennessee Code Annotated § 37-1-

102(b)(22)(B).

4

 This Court has previously determined that a prior finding by the juvenile 

 

4

Following the severe abuse hearing in April 2018, the statute was amended and the definition of severe 

child abuse was relocated from Tennessee Code Annotated § 37-1-102(b)(22) to § 37-1-102(b)(27). For 
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court in the dependency and neglect proceedings can be res judicata in the termination 

proceedings. See In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012). In 

such cases, the doctrine of res judicata prevents the issue from being re-litigated in the 

subsequent termination proceeding. Id. 

The Juvenile Court entered an order in April 2018, finding that Mother had 

severely abused the Children “based on the expert testimony of Dr. Gilliam, the home 

environment the children were living in, the parents’ medical neglect of the subject 

children, the condition of the children’s health, and the resulting developmental delays 

that have been observed in the child, Deishun.” Mother did not appeal the finding of 

severe child abuse against her. Father appealed the order finding severe child abuse but 

ultimately dismissed his appeal, and Mother’s counsel signed the agreed order dismissing 

the appeal. The April 2018 order finding that Mother committed severe child abuse is a 

final order. The Juvenile Court conducted a trial over four nonconsecutive days and 

heard testimony from several witnesses. Both Mother and DCS were involved in the 

dependency and neglect proceedings and the matter was fully litigated at that time. It 

also is of note that the Juvenile Court found that insufficient evidence was presented as to 

Mother’s knowledge that the Children and K.M. had been left in the hot car, and,

therefore, did not find that Mother had committed severe abuse under Tennessee Code 

Annotated § 37-1-102(b)(22)(A). As such, we determine that the Juvenile Court properly 

determined that the finding of severe child abuse against Mother was res judicata.

We further note that the pending criminal proceedings are separate and distinct 

from the severe child abuse and parental termination actions, with differing standards of 

proof. In severe child abuse cases, the petitioner must prove that the perpetrator 

committed severe child abuse by clear and convincing evidence, while the state must 

prove the higher standard of proof, beyond a reasonable doubt, in criminal proceedings. 

 

consistency’s sake, we will cite to the statute in effect at the time of the severe child abuse finding by the 

Juvenile Court. At the time of the severe abuse hearing, Tennessee Code Annotated § 36-1-102(b)(22) 

provided in pertinent part:

“Severe child abuse” means:

(A)(i) 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; [or]

* * * 

(B) Specific brutality, abuse or neglect towards a child that in the opinion of qualified 

experts has caused or will reasonably be expected to produce severe psychosis, severe 

neurotic disorder, severe depression, severe developmental delay or intellectual disability, 

or severe impairment of the child’s ability to function adequately in the child’s 

environment, and the knowing failure to protect a child from such conduct[.]
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Even if Mother were subsequently acquitted in a jury trial during the criminal 

proceedings, the acquittal would not affect the finality and res judicata provided to the 

Juvenile Court’s judgment which found by clear and convincing evidence that Mother 

committed severe child abuse against the Children. See In re Dakota C.R., 404 S.W.3d at

498 (“[T]he fact that a jury failed to conclude that [the parent] committed criminal 

aggravated child abuse beyond a reasonable doubt is not fatal to the trial court’s finding 

that [the parent] committed severe child abuse based on clear and convincing evidence.”). 

We find and hold that the Juvenile Court did not err by proceeding with the termination 

proceedings despite the pendency of the criminal charges against Mother. 

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) (Supp. 2019) provides: 

(3)(A) The child has been removed from the home or the physical or legal 

custody of a parent or guardian for a period of six (6) months by a court 

order entered at any stage of proceedings in which a petition has been filed 

in the juvenile court alleging that a child is a dependent and neglected child, 

and:

(i) The conditions that led to the child’s removal still persist, 

preventing the child’s safe return to the care of the parent or 

guardian, or other conditions exist that, in all reasonable probability, 

would cause the child to be subjected to further abuse or neglect, 

preventing the child’s safe return to the care of the parent or 

guardian;

(ii) 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 

guardian in the near future; and

(iii) 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;

(B) The six (6) months must accrue on or before the first date the 

termination of parental rights petition is set to be heard;

Regarding this case, the Children were removed from the parents’ custody on July 

9, 2017, and placed in foster care. The Children were removed from the parents 

following an incident where Father left the Children and their sibling, K.M., in a hot car 

during the day while he worked resulting in the death of K.M. Although the Juvenile 

Court found that DCS had not proven that Mother had knowledge that the Children were 
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left in the hot car, the Children were removed from her custody due to environmental 

neglect and medical neglect. The Juvenile Court subsequently found that the Children 

were dependent and neglected in the care of the parents. The Children had been removed 

from Mother’s custody by order of the Juvenile Court for more than the required six 

months prior to the initial setting of the termination trial. 

Following the termination trial, the Juvenile Court found that even after the 

Children had entered DCS custody, Mother had not been able to secure suitable housing 

for the Children. Mother had been incarcerated for forty-five days following the removal 

of the Children from her care, and she had been evicted from the home she resided in

with the Children and Father due to the condition of the home and failure to pay rent. At 

the time of trial, Mother had been residing in a one-room extended stay hotel room for 

some months. Prior to residing in the hotel room, she was living at a friend’s apartment. 

According to Mother, she was not on the lease but had paid rent to her friend. Mother, 

however, testified that she did not know the friend’s last name. Mother testified that 

since her release from jail, she had been living in either motels, extended stay hotels, or 

her friend’s apartment. 

Mother had completed parenting classes and domestic violence counseling after

the Children entered foster care. She also had maintained employment at Steak and 

Shake restaurant for a year. Mother further testified that she had a mental health

assessment but that she did not think she had provided proof of that to DCS. Mother 

stated that she had been diagnosed with depression. According to Mother, the provider 

recommended that she take medication and attend medication management. Mother also 

testified that the provider offered her therapy. Mother explained that she could

participate in therapy if she “wanted it” but that it was not recommended to her, and she 

did not believe she needed therapy. 

Mother testified that her lack of transportation and insufficient income had 

prevented her from attending some of the appointments and getting things done. Mother 

further testified that she had taken her medication as prescribed almost every day and had 

taken it as recently as the day prior to trial. When asked whether she had informed a 

DCS representative that she had not taken her medication as prescribed, Mother stated, “I 

plead the Fifth.” Mother subsequently answered the question and denied making that 

statement to a DCS representative. 

Mother acknowledged that she had not been to her mental health provider since 

August 2018. When asked how she was getting her medication, Mother stated, “I’m 

not.” When asked why she was not taking her medication, Mother replied that she was 

not used to taking medication. According to Mother, she did not believe she needed the 

medication. Mother explained that the prescription medication she had taken recently in 

the days prior to trial was from the thirty pills she received from a prescription in August 
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2018. The Juvenile Court found that Mother had attended appointments with her mental 

health provider only twice and had taken her medication sporadically. 

The DCS representative, Lashunda Williams, testified that Mother had not made 

significant progress since she had become the case manager in May 2018. Mother 

acknowledged that she was not yet in a position to take custody of the Children but that 

she had been working on getting a place to live and obtaining her driver’s license. 

According to Mother, it would take her a month to place herself in a position to assume 

custody of the Children. The Juvenile Court, however, found that a month was unlikely 

to make a significant difference in Mother’s circumstances. 

The Juvenile Court found that Mother currently had a place to live and had 

maintained employment but that she had both of those things when the Children were 

removed from her custody, and the Children “still suffered from abuse and neglect.” 

Emphasizing Mother’s failure to comply with mental health treatment and take her 

medication consistently, the Juvenile Court found that the conditions that led to the 

Children’s removal from her custody persisted and that other conditions were present that 

would result in the Children being further abused or neglected. 

The record reflects that Mother had been charged with three counts of attempted 

aggravated child abuse, which were pending at the time of trial. The Trial Court found 

that Mother had not followed through with her mental health treatment and had “been 

unable to secure suitable housing.” Due to Mother’s lack of suitable housing, failure to 

comply with her mental health treatment, and pending criminal charges, the Juvenile 

Court found that there was little chance the existing conditions preventing the Children’s 

return to Mother would be remedied soon. Additionally, the Juvenile Court found that 

the Children were thriving in their foster home, that the foster parents desired to adopt the 

Children, and continuation of the parent-child relationship greatly diminished the chances 

for the Children to be placed into a safe, stable, and permanent home. The evidence 

presented does not preponderate against the Juvenile Court’s findings and those findings 

show clear and convincing evidence as to this statutory ground. We, therefore, affirm the 

Juvenile Court as to the ground of persistent conditions.

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

rights, we next address the best interest analysis. 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
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(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;

(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) (Supp. 2019).
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With regard to making a determination concerning a child’s best interest, our 

Supreme Court has 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).

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 
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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).

On appeal, Mother contends that the Juvenile Court erred by finding clear and 

convincing evidence that termination of her parental rights was in the Children’s best 

interest. The Juvenile Court considered the factors enumerated in Tennessee Code 

Annotated § 36-1-113(i) before ultimately concluding that those relevant factors weighed 

in favor of terminating Mother’s parental rights to the Children. In its termination order, 

the Juvenile Court recognized that Mother had maintained employment and paid some 

child support but pointed to Mother’s inability to maintain stable housing and her failure 

to address her mental health needs in finding that Mother had not made changes to her 

conduct or circumstances such that it was safe for the Children to return to her custody. 

The Juvenile Court also found that DCS had assisted Mother with services until being 

relieved of making reasonable efforts to reunify the Children with Mother in May 2018. 

At the time of trial, Mother admitted she was not in a position at that time to care for the 

Children. The Juvenile Court determined that providing Mother with another month was 

unlikely to make a significant difference in her circumstances. The Juvenile Court found 

that despite the efforts of DCS, Mother had not made lasting changes in her lifestyle or 

conduct and that such change did not appear forthcoming in the near future. 

The Juvenile Court further found that no meaningful relationship existed at the 

time of trial between the Children and Mother and that continuing that relationship would 

be detrimental to the Children’s “long-term permanency.” Additionally, the Juvenile 

Court recognized the substantial progress the Children had made with the foster parents 

and that removing the Children from the foster home “would be detrimental to their 

stability and would slow their progress.” Consequently, the Juvenile Court concluded 

that changing the Children’s caregivers at this point in the Children’s lives would have a 

detrimental effect on them. 

Additionally, the Juvenile Court found that Mother had severely abused and 

neglected the Children. Furthermore, due to Mother’s failure to comply with her mental 

health treatment and not taking her medication consistently, Mother’s mental and 

emotional state would be detrimental to the Children and prevent her from effectively 

parenting them. Considering all the foregoing, the Juvenile Court concluded that 

termination of Mother’s parental rights was in the Children’s best interest. 

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

presented does not preponderate against the Juvenile Court’s findings and that those 

findings are clear and convincing evidence that termination of Mother’s parental rights 

was in the best interest of the Children. We, therefore, affirm the Juvenile Court’s 

judgment terminating Mother’s parental rights in its entirety.
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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 appellant, Jessica T., and her surety, if any.

_________________________________

D. MICHAEL SWINEY, CHIEF

JUDGE