IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

August 16, 2016 Session

IN RE TAMERA W., ET AL.

Appeal from the Circuit Court for Shelby County

No. CT00379814 Gina C. Higgins, Judge

___________________________________

No. W2015-01988-COA-R3-PT – Filed November 9, 2016

___________________________________

Upon petition of the Tennessee Department of Children‟s Services (“the Department”), 

the trial court terminated the parental rights of Mother and Father. Among other things, 

the trial court concluded that Mother and Father had committed severe child abuse. The 

trial court also determined that the termination of parental rights was in the children‟s 

best interest. Having reviewed the record transmitted to us on appeal, we reverse the trial 

court‟s finding that Mother abandoned the children pursuant to Tennessee Code 

Annotated section 36-1-102(1)(A)(iv). Moreover, we reverse the trial court‟s finding that 

Mother failed to substantially comply with the requirements of the family permanency 

plans created in this case. However, we conclude that clear and convincing evidence 

supports the other grounds for termination relied upon by the trial court, as well as the 

trial court‟s finding that the termination of Mother and Father‟s parental rights is in the 

children‟s best interest. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in 

Part, Affirmed in Part, and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which JOHN W. MCCLARTY

and BRANDON O. GIBSON, JJ., joined.

Dennis J. Sossaman, Memphis, Tennessee, for the appellant, L. D. K., Jr.

Theresa D. Childress, Memphis, Tennessee, for the appellant, L. K.

Herbert H. Slatery, III, Attorney General and Reporter; M. Cameron Himes, Assistant 

Attorneys General, Nashville, Tennessee, for the appellant, State of Tennessee, 

Department of Children‟s Services. 
- 2 -

Elizabeth W. Fyke, Memphis, Tennessee, Guardian ad litem.

1

OPINION

BACKGROUND AND PROCEDURAL HISTORY

In this appeal, we address the termination of parental rights of L.K. (“Mother”) to 

her seven children—T.L.W. (d.o.b. 7/1999), A.E.W. (d.o.b. 1/2001), L.S.W. (d.o.b. 

2/2002), Q.D.W. (d.o.b. 9/2003), J.S.W. (d.o.b. 2/2005), A.M.W. (d.o.b. 7/2006), and 

L.T.K. (d.o.b. 12/2011).2 We also address the termination of parental rights of L.D.K. 

(“Father”) to three of these children—A.M.W., Q.D.W., and L.T.K. Father is not a 

biological parent of T.L.W., A.E.W., L.S.W., or J.S.W.

In October 2012, the Department received a referral alleging that one of the 

children, A.M.W., had been severely physically abused. When a Department investigator 

inquired about the allegations by showing up at A.M.W.‟s school, A.M.W. reported that 

Mother had whipped her with an extension cord the previous evening. A.M.W. revealed 

that she was hurting, and her body had visible injury marks. Whereas some of A.M.W.‟s 

wounds were fresh, others appeared to be old and healing. The wounds were evident on 

her legs, ankles, back, and buttocks. 

Subsequent interviews with some of the other children revealed that they too had 

been abused in the past. Among other things, they reported that Mother had duct taped 

their wrists, mouths, and eyes while whipping them. They also stated that Mother had 

required them to remain in squatting positions in the home hallway while they waited to 

receive their individual whippings. Like A.M.W., some of these children had visible 

injury marks. In forensic interviews that were later conducted, some of the children 

stated that Father had been present in the home when the whippings had taken place. 

Others claimed that Father had also whipped them directly, albeit with a belt instead of an 

extension cord. 

On October 19, 2012, Mother was arrested and charged with four counts of 

aggravated child abuse. Although the home of a maternal uncle was identified by the 

Department as a potential place for the children‟s placement, this placement did not 

materialize when the uncle reported that he was not able to provide adequate care. On 

 

1 Guardian ad litem did not file a brief.

2

In cases involving minor children, it is this Court‟s policy to redact names sufficient to protect the 

children‟s identities.
- 3 -

October 26, 2012, the Shelby County Juvenile Court placed the children in the temporary 

custody of the Department. Approximately eleven months later, on September 13, 2013, 

the Juvenile Court found that the minor children were dependent and neglected.3 As part 

of its findings, the Juvenile Court noted that Mother had severely abused the children. 

Although the matter came to be reheard by the Juvenile Court on March 10, 2014, the 

children were once again found to be dependent and neglected.4 The Juvenile Court also 

relieved the Department from making reasonable efforts to reunite Mother with her 

children. 

Following the children‟s removal from Mother and Father‟s home, a number of 

family permanency plans were created. The first of these plans, which was created on 

November 19, 2012, had alternative permanency goals of “Return to Parent” and “Exit 

Custody with Relative.” The record shows that on the same day that this plan was 

created, both Mother and Father received a copy of the “Criteria & Procedures for 

Termination of Parental Rights.” Although the second permanency plan had alternative 

permanency goals of “Adoption” and “Return to Parent” when it was created on 

September 19, 2013, the Juvenile Court did not find these goals to be appropriate when it 

reviewed the plan in October 2013. Citing Mother‟s abuse of the children, the Juvenile 

Court changed the permanency goals to “Exit Custody with Relative” and “Adoption.” 

These same goals were included as part of the final permanency plan created on 

September 17, 2014. Among other things, the permanency plans required Mother and 

Father to complete a mental health assessment and follow all treatment recommendations 

and to participate in counseling geared toward recognizing the effect of abuse on the 

children.

On September 4, 2014, the Department filed a petition seeking to terminate 

Mother and Father‟s parental rights in the Shelby County Circuit Court.5 With respect to 

Mother, the petition alleged that the following grounds for termination existed: (1) 

 

3 Although this Opinion references the dates that various orders were signed by the Juvenile Court, 

inexplicably, many of the orders reflect that they were not stamped filed by the Clerk until several months 

later.

4 Although an appeal of the dependency-neglect finding was subsequently taken to the Shelby County 

Circuit Court, the record indicates that the dependency-neglect litigation was still pending in Circuit 

Court at the time the appeal of this termination proceeding was taken. 

5 The petition also sought to terminate the parental rights of C.C., the alleged father of A.E.W. Although 

C.C.‟s parental rights were eventually terminated by the trial court, his rights are not at issue in this 

appeal. Moreover, we observe that the petition identified J.W. as one of the children‟s fathers and named 

him as a Respondent. However, the petition noted that J.W. was deceased and attached his death 

certificate in support of this fact.
- 4 -

Mother had abandoned the children by failing to support them; (2) Mother had 

abandoned the children by engaging in conduct prior to incarceration that exhibited a 

wanton disregard for the children‟s welfare; (3) Mother had failed to substantially comply 

with the provisions of the permanency plans; and (4) Mother had committed severe child 

abuse against the children.6 With respect to Father, the petition alleged two grounds for 

termination: (1) that Father had failed to substantially comply with the provisions of the 

permanency plans and (2) that Father had committed severe child abuse. 

A hearing on the termination petition occurred over several dates in July 2015, and 

on August 7, 2015, the trial court announced by oral ruling that it was terminating both 

Mother and Father‟s parental rights. A written order memorializing this ruling was later 

entered by the trial court on September 18, 2015. Pursuant to its September 18 order, the 

trial court determined that Mother had abandoned the children by willfully failing to 

support them, that Mother had abandoned the children as defined under Tennessee Code 

Annotated section 36-1-102(1)(A)(iv) by engaging in conduct prior to incarceration that 

exhibited a wanton disregard for the children‟s welfare, that Mother had failed to 

substantially comply with the provisions of the permanency plans, and that Mother had 

committed severe child abuse. As for the grounds supporting the termination of Father‟s 

parental rights, the trial court determined that Father had failed to substantially comply 

with the provisions of the permanency plans and that he had committed severe child 

abuse. The trial court further concluded that the termination of both Mother and Father‟s 

parental rights would serve the children‟s best interest. In support of its decision to grant 

the Department‟s termination petition, the trial court noted that its findings as to both the 

grounds for termination and the children‟s best interest were supported by clear and 

convincing evidence. This timely appeal followed. 

ISSUES

Mother‟s appellate brief raises two issues for our review. Her first issue 

challenges the trial court‟s finding that the termination of her parental rights was in the 

children‟s best interests. Her second issue challenges the trial court‟s determination that 

she failed to substantially comply with the provisions of the permanency plans. Father‟s 

brief raises a single issue: whether he had the intellectual ability to have acted in 

conformity with the permanency plans or to have known that Mother inflicted abuse on 

the children. 

 

6

In setting out the grounds for termination, the petition contains a section heading entitled “Abandonment 

by Failure to Visit or Support.” We note, however, that the allegations contained under that heading 

relate solely to Mother‟s failure to support the children in the four months preceding the filing of the 

petition. 
- 5 -

Our review on appeal is not limited by Mother‟s failure to address every ground 

for termination relied upon by the trial court to terminate her parental rights or by 

Father‟s failure to address the trial court‟s determination that termination of his parental 

rights was in the children‟s best interest. In order to help “ensure that fundamental 

parental rights are not terminated except upon sufficient proof, proper findings, and 

fundamentally fair procedures,” we are required to review the trial court‟s findings as to 

each ground for termination and as to whether termination is in the child‟s best interest. 

See In re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[I]n an appeal from an 

order terminating parental rights the Court of Appeals must review the trial court‟s 

findings as to each ground for termination and as to whether termination is in the child‟s 

best interests, regardless of whether the parent challenges these findings on appeal.”).

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 M.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App. 

2007) (citations omitted). “Although this right is fundamental and superior to claims of 

other persons and the government, it is not absolute.” In re J.C.D., 254 S.W.3d 432, 437 

(Tenn. Ct. App. 2007) (citation omitted). “It continues without interruption only as long 

as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its 

limitation or termination.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) 

(citations omitted). In Tennessee, “[w]ell-defined circumstances exist under which a 

parent‟s rights may be terminated.” In re Roger T., No. W2014-02184-COA-R3-PT, 

2015 WL 1897696, at *6 (Tenn. Ct. App. Apr. 27, 2015), no perm. app. filed. Pursuant 

to the Tennessee Code, parties who have standing to seek the termination of a parent‟s 

parental rights must prove two things. They must first prove at least one of the statutory 

grounds for termination. In re J.C.D., 254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-

1-113(c)(1)). Then, they must prove that termination of parental rights is in the child‟s 

best interests. Id. (citing Tenn. Code Ann. § 36-1-113(c)(2)).

Because the decision to terminate a parent‟s parental rights has “profound 

consequences,” trial courts must apply a higher standard of proof in deciding termination 

cases. In re M.L.P., 228 S.W.3d at 143. “To terminate parental rights, a court must 

determine that clear and convincing evidence proves not only that statutory grounds exist 

but also that termination is in the child‟s best interest.” In re Valentine, 79 S.W.3d 539, 

546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). “Clear and convincing 

evidence is evidence that eliminates any substantial doubt and that produces in the factfinder‟s mind a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-COAR3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007) (citation omitted). This 
- 6 -

heightened burden of proof “minimizes the risk of erroneous decisions.” In re M.L.P., 

228 S.W.3d at 143 (citations omitted).

Due to the heightened burden of proof required under the statute, we must adapt 

our customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 

2005). “First, we must review the trial court‟s specific findings of fact de novo in 

accordance with Tenn. R. App. P. 13(d).” In re M.J.B., 140 S.W.3d at 654. “Second, we 

must determine whether the facts, either as found by the trial court or as supported by the 

preponderance of the evidence, clearly and convincingly establish the elements required 

to terminate a biological parent‟s parental rights.” Id. (citations omitted).

DISCUSSION

Consistent with the Tennessee Supreme Court‟s direction in In re Carrington H., 

we are required to review the trial court‟s findings as to each ground for termination. See

In re Carrington H., 483 S.W.3d at 525-26. Accordingly, in the analysis that follows, we 

review each ground for termination relied upon by the trial court separately. However, 

notwithstanding the comprehensive nature of our review, we ultimately need only find 

that one ground for termination was established in order to uphold the trial court‟s 

decision. In re Valentine, 79 S.W.3d at 546.

Abandonment 

The first ground for termination listed in our termination statute, and the most 

frequently relied on, is abandonment. In re Audrey S., 182 S.W.3d at 862 (citations 

omitted). The acts that constitute abandonment are outlined in Tennessee Code Annotated 

section 36-1-102, which provides five alternative definitions. In this case, the trial court 

determined that Mother abandoned the children pursuant to two of the five statutory 

definitions in section 36-1-102. We address each of these determinations in turn.

Abandonment by Willful Failure to Support

The first ground for termination cited in the trial court‟s September 18, 2015 order 

is the definition of abandonment provided for in Tennessee Code Annotated section 36-1-

102(1)(A)(i). Pursuant to that definition, a parent‟s parental rights may be terminated 

when:

(i) For a period of four (4) consecutive months immediately preceding 

the filing of a proceeding or pleading to terminate the parental rights 

of the parent or parents or the guardian or guardians of the child who 

is the subject of the petition for termination of parental rights or 
- 7 -

adoption, that the parent or parents or the guardian or guardians 

either have willfully failed to visit or have willfully failed to support 

or have willfully failed to make reasonable payments toward the 

support of the child[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i). For purposes of this definition of abandonment, 

“willfully failed to support” or “willfully failed to make reasonable payments toward 

such child‟s support” means the “willful failure, for a period of four (4) consecutive 

months, to provide monetary support or the willful failure to provide more than token 

payments toward the support of the child.” Id. § 36-1-102(1)(D). Token support is 

defined as “support, [that] under the circumstances of the individual case, is insignificant 

given the parent‟s means.” Id. § 36-1-102(1)(B).

In concluding that Mother had abandoned the children by willfully failing to 

support them, the trial court found as follows:

[F]or a period of four (4) consecutive months immediately preceding the 

filing of the Petition for Termination of Parental Rights, [Mother] willfully 

failed to make any contribution whatsoever toward the support of the 

children, despite being able-bodied and capable of being employed. The 

petition was filed on September 4, 2014, and [Mother] failed to support the 

children from May 4, 2014, to the date the petition was filed. The 

testimony of [Mother] was that she was employed during the four months 

preceding the filing of the Petition, that she gave money to the children at 

the courthouse and perhaps during visits, and that she had purchased gifts 

for the children during the four months preceding the filing of the Petition, 

but had not delivered the gifts to the children. The Court finds that the 

monies [Mother] gave to the children were all token gifts and not consistent 

or adequate enough for the Court to find that she supported her children 

during the four months preceding the filing of the Petition. Additionally, 

the Court notes that [Mother] was required under the permanency [plan] to 

provide support for the children, that [Mother] was advised of her duty to 

provide support, and [Mother] understood her duty to support her children. 

Likewise, the Court finds that [Mother‟s] testimony that she . . . had 

purchased gifts, but not delivered them was not credible. The Court finds 

that there was no justifiable reason for [Mother] to not support the children 

and that she thereby willfully abandoned them. 

Having reviewed the record, we conclude that the evidence does not preponderate against 

the trial court‟s factual findings on this issue. Moreover, we agree with the trial court‟s 
- 8 -

conclusion that this ground for termination was established by clear and convincing 

evidence.

Abandonment by Wanton Disregard

We next review the trial court‟s determination that Mother abandoned the children

by engaging in conduct prior to incarceration that exhibited a wanton disregard for the 

children‟s welfare. This definition of abandonment, which is found in Tennessee Code 

Annotated section 36-1-102(1)(A)(iv), reads as follows: 

A parent or guardian is incarcerated at the time of the institution of an 

action or proceeding to declare a child to be an abandoned child, or the 

parent or guardian has been incarcerated during all or part of the four 

(4) months immediately preceding the institution of such action or 

proceeding, and either has willfully failed to visit or has willfully failed to 

support or has willfully failed to make reasonable payments toward the 

support of the child for four (4) consecutive months immediately preceding 

such parent‟s or guardian‟s incarceration, or the parent or guardian has 

engaged in conduct prior to incarceration that exhibits a wanton 

disregard for the welfare of the child[.]

Id. § 36-1-102(1)(A)(iv) (emphasis added). As this Court has previously observed, this 

statute “reflects the commonsense notion that parental incarceration is a strong indicator 

that there may be problems in the home that threaten the welfare of the child.” In re 

Audrey S., 182 S.W.3d at 866. Indeed, the “decision to engage in conduct that carries 

with it the risk of incarceration is itself indicative that the parent may not be fit to care for 

the child.” Id. (citation omitted). With that said, an incarcerated parent can only be 

found guilty of abandonment under the second test of Tennessee Code Annotated section 

36-1-102(1)(A)(iv) “if the court finds, by clear and convincing evidence, that the parent‟s 

pre-incarceration conduct displayed a wanton disregard for the welfare of the child.” Id. 

Under the statute, “the parent‟s incarceration serves only as a triggering mechanism that 

allows the court to take a closer look at the child‟s situation to determine whether the 

parental behavior that resulted in incarceration is part of a broader pattern of conduct that 

renders the parent unfit or poses a risk of substantial harm to the welfare of the child.” 

Id.

On appeal, the Department concedes that this ground for termination is 

inapplicable. In pertinent part, it notes that the record is devoid of any testimony that 

reflects that Mother was incarcerated for the time periods required under the statute. We 

agree and therefore reverse the trial court‟s decision to terminate Mother‟s parental rights 

on the basis of Tennessee Code Annotated section 36-1-102(1)(A)(iv). 
- 9 -

Substantial Noncompliance with the Permanency Plan Requirements

Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), a court may 

terminate a parent‟s parental rights when the parent is in “substantial noncompliance . . . 

with the statement of responsibilities in a permanency plan.” Tenn. Code Ann. § 36-1-

113(g)(2). In conjunction with terminating a parent‟s parental rights under this ground, 

the court “must first find that the plan requirements are reasonable and related to 

conditions that necessitate foster care placement.” In re Hannah H., No. E2013-01211-

COA-R3-PT, 2014 WL 2587397, at *10 (Tenn. Ct. App. June 10, 2014) (citations 

omitted). “The trial court must then find that the noncompliance is substantial.” Id. 

(citation omitted). Although the termination statute does not define what conduct 

constitutes substantial noncompliance, terminating parental rights under this ground 

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

permanency plan.” In re M.J.B., 140 S.W.3d at 656. The significance of the 

noncompliance “should be measured by both the degree of noncompliance and the weight 

assigned to that requirement.” In re Valentine, 79 S.W.3d at 548. “Terms which are not 

reasonable and related are irrelevant, and substantial noncompliance with such terms is 

irrelevant.” Id. at 548-49. Because determining whether substantial noncompliance 

exists is a question of law, we review the issue de novo with no presumption of 

correctness. Id. at 548. 

In pertinent part, the permanency plans created in this case required Mother and 

Father to accept child education classes, receive anger management counseling, attend 

counseling geared toward recognizing the effect of abuse on the children, submit to a 

mental health assessment and follow all recommendations, and pay child support. The 

trial court concluded that both parents failed to substantially comply with the permanency 

plan requirements. Having reviewed the record transmitted to us on appeal, we reverse 

the trial court‟s conclusions on this ground for termination as they relate to Mother, but 

affirm the trial court‟s conclusions as they relate to Father.

There is no dispute that Mother attended parenting classes, received anger 

management counseling, and submitted to psychological evaluations. Although there 

was testimony that Mother did not pay any child support while the children were in the 

Department‟s custody,7there was evidence that she paid some support. At an October 7, 

2013 review of the permanency plan created on September 19, 2013, the Juvenile Court 

found specifically as follows: “[T]he mother is[] in substantial compliance with the 

permanency plan in that she is attending her supervised visits with the children, she is 

 

7 When specifically asked if Mother had paid any child support, a supervisor with the Department 

responded as follows: “Not that I‟m aware of.” 
- 10 -

attending individual counseling, and she is supporting the children financially.” 

(emphasis added) Although the evidence in the record preponderates in favor of a 

finding that Mother did not ever pay child support consistently, there is thus evidence that 

she made some efforts to provide for the children financially. We also note that although 

there was some evidence in the record creating a question as to whether Mother actually 

received individual counseling as required, it is not apparent to us that the trial court 

actually discredited Mother‟s testimony—or that of her counselor—that counseling 

occurred. With respect to this matter, we observe that the trial court noted as follows in

its September 18, 2015 order:

Testimony was presented by Zanthresa Hampton that she was providing 

individual counseling to [Mother] as required by the permanency plan. 

However, the Court notes that this information was either hidden or not 

reported to the Department and the Court further rejects Ms. Hampton‟s 

testimony that [Mother] has developed the skills and tools needed, from her 

counseling sessions, to parent the children. 

As best as we are able to discern, the trial court‟s criticisms are twofold as it relates to 

Mother‟s counseling requirement: (1) Mother did not adequately update the Department 

on her counseling attendance and (2) Mother‟s counseling did not result in the 

development of needed parenting skills. We recognize that the trial court‟s criticism on 

the first issue perhaps suggests that the trial court took a dim view of the testimony 

affirming Mother‟s counseling attendance, but inasmuch as the trial court made a specific 

finding on the latter issue, it appeared to make an implicit determination that counseling 

did, in fact, take place.

We note that these criticisms are the only written findings where the trial court 

specifically detailed Mother‟s alleged noncompliance with the permanency plans. 

Moreover, to the extent that they focus on the effect of Mother‟s counseling, we note that 

they are misplaced with respect to this ground for termination. As this Court has 

previously made clear, “outcome achievement is not the measure of compliance.” In re 

B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *8 (Tenn. Ct. App. Mar. 2, 

2009) (noting that even if the mother did not learn how to effectively parent the children, 

that was not a dispositive factor in a determination of termination based on substantial 

noncompliance). Thus, it is of no consequence to this ground for termination whether 

Mother‟s counseling was successful. Mother‟s compliance in attending counseling is the 

relevant consideration. 

Considering Mother‟s efforts as a whole, we cannot conclude, by clear and 

convincing evidence, that she was in substantial noncompliance with the permanency 

plan requirements. At trial, a Department supervisor placed particular importance on 
- 11 -

Mother‟s completion of a mental health assessment, and in its brief on appeal, the 

Department argues that Mother‟s need to attend counseling was of special significance. 

We would not disagree that these requirements under the permanency plans should be 

assigned significant weight given the history of abuse involved in this case. However, as 

noted above, Mother submitted to psychological evaluations and the trial court‟s findings 

of fact implicitly acknowledge that she attended individual counseling. Accordingly, 

notwithstanding her failure to consistently support the children financially, Mother was in 

compliance with the most important of the tasks under the permanency plans. Moreover, 

as we have already detailed, it is undisputed that she attended parenting classes and 

received anger management counseling. In light of these considerations, we are of the 

opinion that there is insufficient evidence to conclude that Mother was in “substantial 

noncompliance.”

With that said, we affirm the trial court‟s determination that Father was in 

substantial noncompliance with the permanency plan requirements.8 Father admitted at 

trial that he had not done what was required of him under the permanency plans. 

Although the evidence revealed that Father had submitted to a psychological evaluation a 

few months immediately preceding the commencement of trial, the belated timing of this 

evaluation impeded Father‟s ability to follow the evaluator‟s recommendations, which 

included being reevaluated and submitting to treatment by a psychiatrist who has the 

ability to provide medication management and therapy. According to the psychologist 

who evaluated Father, Father also needed to be involved in parenting training with 

Mother. Father claimed at trial that he made an appointment to seek medication for his 

prior diagnoses of schizophrenia and bipolar disorder, but he could not confirm that his 

appointment was with an actual doctor. When asked about this, he specifically stated as 

follows: “I‟m not sure what she is.” With respect to the required parenting training,9

Father admitted that he had not completed it. 

 

8 Although it does not ultimately affect our conclusion herein given Father‟s widespread noncompliance, 

we note that the trial court‟s final order states, in error, that one of Father‟s requirements under the plans

was to “maintain stable housing.” We are unable to locate where this requirement was mandated as one 

of Father‟s responsibilities. We recognize that providing the children a “stable” place to live was listed as 

a “Desired Outcome” on the plans, but a desired outcome is different from a statement of responsibility. 

“Tenn. Code Ann. § 36-1-113(g)(2) does not require substantial compliance with a permanency plan‟s 

„[d]esired outcome[s],‟ rather, it requires substantial compliance with a plan‟s statement of 

responsibilities, i.e., the actions required to be taken by the parent or parents.” State Dep’t of Children’s 

Servs. v. P.M.T., No. E2006-00057-COA-R3-PT, 2006 WL 2644373, at *8 (Tenn. Ct. App. Sept. 15, 

2006) (emphasis added). 

9 We note that parenting training was not only recommended by Father‟s evaluating psychologist, but it 

was also required under the terms of the permanency plans.
- 12 -

In general, Father‟s testimony indicated that he was disinterested in complying 

with the permanency plans. He stated that he had not read the plans and testified that he 

was “distracted” whenever Mother read them to him. When asked if he had taken any 

steps to do any of the things that Mother had done pursuant to the permanency plans, 

Father responded as follows: “I really didn‟t feel like I had to do anything to be truthful 

because I always feel like it really shouldn‟t have nothing to do with me.” Father‟s 

sentiments on this issue were also relayed by the testimony of Sandra Walker (“Ms. 

Walker”), a supervisor with the Department. When she was asked if Father had ever 

been proactive in attempting to get the children returned to him, Ms. Walker testified as 

follows: “No. He stated that he was relying on the mother . . . to do that.” In light of the 

foregoing, we are satisfied that clear and convincing evidence supports the trial court‟s 

determination on this ground as it pertains to Father.

In reaching our conclusion on this issue, we reject Father‟s argument that his prior 

diagnoses of schizophrenia and bipolar disorder prevented him from having the 

intellectual ability to act according to the requirements of the permanency plans. As an 

initial matter, we note that it is unclear whether Father is actually schizophrenic or 

bipolar. Notwithstanding Father‟s testimony that he had previously been diagnosed with 

these conditions, Father‟s evaluating psychologist, Dr. Kenneth Jones (“Dr. Jones”), was 

not sure whether these diagnoses were proper. As Dr. Jones stated in an evidentiary 

deposition admitted at trial: “I would recommend that he get involved immediately with 

a treating psychiatrist who could assess and determine [whether] this guy needs to be on 

XYZ meds and involved in this kind of treatment, or that diagnosis is inaccurate and he 

doesn‟t have this disorder[.]” 

Regardless of whether Father‟s prior diagnoses have any merit, Dr. Jones‟ 

assessment of Father indicates that Father had the intellectual ability to understand his 

surroundings and process relevant information. When describing his meeting with Father 

in general terms, Dr. Jones stated as follows: “So, he understood the process, he 

understood what had happened and what had been alleged to have happened and why the 

children weren‟t in [his and Mother‟s] care.” Although some of Father‟s scores on the 

WAIS-IV test10 indicated that he was functioning on the “borderline” range, Dr. Jones 

attributed some of this to a “lack of education rather than a lack of ability.” As he 

explained:

[B]ecause of his verbal comprehension, things that brought his score down 

were things like vocabulary, and then an information subtest where we are 

asking them questions like, you know, on what continent is Brazil, things 

 

10 Dr. Jones described this test as “the adult version of a cognitive functioning assessment tool that is 

widely used.”
- 13 -

he would have learned in school that he never got exposed to. So, that 

doesn‟t mean he can‟t learn it, it just means he didn‟t. And so that is what 

brought his overall score down into the borderline range, but he was 

functioning at a -- he understood the process and he was functioning at a 

high enough level to know that he was comprehending what was going 

on.

 

(emphasis added). In light of this testimony, we find no merit in Father‟s assertion that 

he lacked the requisite mental capacity to have acted with knowledge with respect to the 

requirements of the permanency plans.

Severe Child Abuse

A parent‟s parental rights may also be terminated when:

The parent or guardian has been found to have committed severe child 

abuse as defined in § 37-1-102, under any prior order of a court or is found 

by the court hearing the petition to terminate parental rights or the petition 

for adoption to have committed severe child abuse against the child who is 

the subject of the petition or against any sibling or half-sibling of such 

child, or any other child residing temporarily or permanently in the home of 

such parent or guardian.

Tenn. Code Ann. § 36-1-113(g)(4). Under Tennessee Code Annotated section 37-1-102, 

severe child abuse is defined, in part, as “[t]he 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)(22) (Supp. 2016).11 

In this case, the trial court concluded that both Mother and Father committed 

severe child abuse. Concerning Mother specifically, the trial court noted as follows:

[Mother] has committed severe child abuse against the children . . . in that 

they have been physically abused by [her]. The Court notes that the 

children‟s hands and mouths have been duct taped, they have been stripped 

 

11 We note that a provision was added to section 37-1-102 following the trial court‟s order of termination. 

At the time of the hearing of the Department‟s termination petition, the cited definition of severe abuse 

was located at Tennessee Code Annotated section 37-1-102(b)(21). See Tenn. Code Ann. § 37-1-

102(b)(21) (2014).
- 14 -

of their clothing, and they have been required to do excessive squats all of 

which took a physical, emotional, and mental toll on these children[.] 

Concerning Father, the trial court found that he had “failed to timely or significantly 

intervene to protect the children from the physical abuse they sustained from [Mother]. 

Moreover, the trial court noted that Father “seemed to withdraw when the children were 

abused and that he simply deferred to [Mother] with regard to everything that 

happened[.]” 

The evidence does not preponderate against the trial court‟s findings on this issue. 

Photographs of injuries sustained by several of the children were introduced into 

evidence at trial. These photographs show significant cuts/lacerations on several portions 

of the children‟s bodies, injuries which are consistent with the stories of abuse chronicled 

in reports from forensic interviews conducted after the children‟s removal from Mother 

and Father‟s home. The accounts detailed by these reports are troubling and align with 

the reports initially made to Tanisha Harper, the Department investigator who first 

inquired into the allegations of abuse in this case. As detailed in the reports from the 

forensic interviews, multiple children disclosed these following elements of abuse: (1) 

Mother had whipped the children with an extension cord or belt, often with the children‟s 

clothes off; (2) the children‟s hands, eyes, and mouths were often taped when they 

received their whippings; and (3) the children were required to remain in a squatting 

position in the hallway while they waited to receive their whippings. The following 

account, which is taken from the report of A.M.W.‟s forensic interview, is indicative of 

the other reports in the record:

[A.M.W.] said her mother whips them one at a time, in . . . bedroom with 

the door closed. She said her mother . . . tied her mouth & arms up with a 

blue & gray tape. Victim said she was also made to lay on the cold floor 

with no clothes on; then is whipped all over her body with an extension 

cord leaving marks on her “. . . back, pocketbook/vagina, arm and lower 

legs.[”] She said these areas were also bleeding. Child said sometimes her 

mother ties her arms up with a green and gray belt. Victim also mentioned 

her lower legs being tied up with tape. [A.M.W.] said her siblings had to 

squat in the hallway, until it was their time to be disciplined. Note: Child 

demonstrated the squatting position. [A.M.W.] said she witnessed blood on 

[L.S.W.] and [Q.D.W.‟s] body & blood running down the legs of . . . 

[J.S.W.] and blood running down her brother‟s back. 

Although Mother denied several aspects of her abuse of the children at trial, such 

as the use of duct tape and an extension cord, she did not deny that she had whipped the 

children. Moreover, she admitted that she had, on occasion, required the children to 
- 15 -

remove their clothes for whippings. Having reviewed the entirety of the record 

transmitted to us on appeal, we conclude that there is clear and convincing evidence that 

Mother severely abused the children. 

There is also clear and convincing evidence that Father committed severe child 

abuse through his failure to protect the children from Mother‟s actions. See in re R.C.P., 

No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at *6 (Tenn. Ct. App. July 13, 2004) 

(“Parents who have not themselves severely abused their own child may still be found to 

have committed severe child abuse if they knowingly exposed the child to, or knowingly 

failed to protect the child from, conduct constituting severe child abuse.”) (citation 

omitted). Indeed, the evidence does not preponderate against the trial court‟s factual 

finding that he failed to intervene to protect the children and simply deferred to Mother. 

Several of the children‟s forensic interview reports indicate that Father was around during 

the whippings and aware of the specific abuse the children sustained. The report from 

T.L.W.‟s forensic interview, for example, notes as follows: “She told the interviewer that 

the times when [Father] was around during the whoopings [sic] he would tell their 

mother, „you don‟t have to whoop those children like that‟ and her mother would tell 

him, „these are my children.‟” According to another forensic interview report, “[Q.D.W.] 

said that if his father was present he would tell their mother that she didn‟t need to whoop 

them like that.” Moreover, the report from J.S.W.‟s forensic interview notes that 

“sometimes her dad would see the tape in their hands after the whippings.” Even 

Father‟s own testimony reveals his awareness of the abuse:

Q. Would you know she was going to spank the children?

A. Sometimes.

Q. Would you hear her spanking the children?

A. I would be outside, or I would be in the other room.

Q. Would you go outside because she was spanking the children, or 

are you saying you were already there?

A. I would just go outside and be doing stuff to my car or be doing 

yard work, or else I would be sitting in the front room. Yeah, about 

once or twice sitting in the front room I heard them, you know.

Q. Did you ever talk to her about spanking the children?

A. I did.
- 16 -

Q. What did you talk to her about?

A. Maybe they didn‟t need a spanking like that, but as far as 

squatting and stuff like that, that‟s fine, but, you know, as far as her 

disciplining as far as spanking like that, I really just didn‟t.

 

Although Father argues on appeal that he lacked the intellectual ability to have 

known that severe abuse was being inflicted upon the children, we have already rejected 

this mental capacity argument as it relates to his noncompliance with the permanency 

plans. As already noted, Dr. Jones determined in his evaluation of Father that Father was 

“functioning at a high enough level to know that he was comprehending what was going 

on.” Moreover, the record is replete with evidence that Father was aware of the nature of 

the abuse being inflicted on the children. Father testified that he informed Mother on one 

occasion that “[m]aybe [the children] didn‟t need a spanking like that,” and there are 

other instances in his testimony that reflect an awareness that he failed to take appropriate 

action. At one point, he specifically stated as follows:

I have been thinking like for the last month up until now that it was like a 

number of times that I could have stepped in and, you know, said, you 

know, don‟t do it or go outside or get you some rest or me and the kids 

could have took a walk somewhere and basically talk to her and try to talk 

to the children, go up to the school and do different things. 

He again expressed regret for his inaction at another point in his testimony:

And now I‟m wishing that I would have actually just stepped in and, you 

know, said stop or said that‟s too much or said let me take the kids out 

somewhere or just go to my mom‟s house or my aunt‟s or my cousin‟s 

house or something like that. And I wasn‟t really involved in, you know, 

stuff like that. I just mainly was all about self and worrying about myself 

and, you know, where I was going to live and, you know, how I was going 

to eat and how I was going to clothe myself and things like that. 

In short, the evidence indicates that Father was aware of the abuse and knew that it was 

wrong. We accordingly affirm the trial court‟s determination that clear and convincing 

evidence establishes this ground for termination as it relates to him.
- 17 -

Best Interests

Despite our conclusion that statutory grounds for termination exist, such proof 

does not by itself justify the termination of a parent‟s parental rights. “Because not all 

parental conduct is irredeemable, Tennessee‟s termination of parental rights statutes 

recognize the possibility that terminating an unfit parent‟s parental rights is not always in 

the child‟s best interest.” In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013) 

(citation omitted), perm. app. denied (Tenn. Mar. 5, 2014). As such, “[w]hen at least one 

ground for termination of parental rights has been established, the petitioner must then 

prove, by clear and convincing evidence, that termination of the parent‟s rights is in the 

child‟s best interest.” Id. at 572 (citing White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. 

App. 2004)).

When conducting a best interests analysis, conflicts between the interests of the 

parent and child are to be resolved in “favor of the rights and best interest of the child.” 

Id. at 573 (citing Tenn. Code Ann. § 36-1-101(d)). Importantly, the best interests 

analysis “must be viewed from the child‟s, rather than the parent‟s, perspective.” White 

v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee, 

the General Assembly has codified a list of nine, non-exclusive factors that trial courts 

are to consider when conducting a best interests inquiry in termination of parental rights 

proceedings. These factors are as follows:

(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;
- 18 -

(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). “Ascertaining a child‟s best interests does not call for a 

rote examination” of these factors, and “depending 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 Moody, 171 S.W.3d 

at 194).

In support of its determination that terminating Mother and Father‟s parental rights 

was in the children‟s best interests, the trial court made several findings of fact. In 

relevant part, the trial court found as follows:

24. Pursuant to Tennessee Code Annotated Section 36-1-113(i)(1)-(9), 

termination of parental rights is in the best interest of the children in that 

Respondents [Mother and Father] . . . have failed to make such an 

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

the children‟s best interest to be in their homes; they have failed to effect a 

lasting adjustment after reasonable efforts by available social services 

agencies for such duration of time that lasting adjustment does not appear 

reasonably possible.

25. The Court finds that these children have been out of the [parents‟] 

home for three years. The youngest child could have no bond with her 

parents and the older children have expressed a desire to not return to 
- 19 -

[Mother and Father‟s] home. The middle children, however, do desire to 

return home, but the Court finds that these children were never truly 

nurtured in the parents‟ home and were subjected to a pattern of abuse. The 

Court finds that reasonable efforts were made by the Department, but in 

contrast the parents made no effort on their part to remedy the situation and 

be reunited with their children. [Mother and Father] are in need of 

continued counseling and therapy and the children cannot stay on hold to 

allow the parents to begin to try to get themselves together. 

* * * *

27. A change of caretakers and physical environment is likely to have a 

traumatic effect on the children‟s emotional, psychological and/or medical 

condition; and all of the children, except [J.S.W.], reside with foster parents 

who are willing and able to adopt them. 

The evidence in the record supports the trial court‟s findings. The children have 

been in the custody of the Department since October 2012, and all except one are in 

foster homes that are willing to adopt them. The children have suffered severe abuse 

from their parents, and such abuse has not been without significant consequences. 

L.S.W., who was thirteen at the time of trial, specifically testified that every time she is 

quiet “all of the bad memories just pop back in my head, what [Mother] did to us.” 

L.S.W. stated that she had been happier since living with her foster family and testified 

that she would be happiest if she could be adopted. Although there is evidence that some 

of the children want to return home to Mother and Father, several children testified that 

they did not want this to occur. Like L.S.W., T.L.W., who was nearly 16 at the time she 

testified, stated that she wanted to be adopted. She testified that she called her foster 

parent “Mom” and indicated that in contrast to her life at Mother and Father‟s home, 

where she claimed there was violence “[e]very day,” there was no violence in her foster 

home. She testified that she would not want to return to Mother and Father‟s home even 

if she could not stay with her current foster placement. She also testified that she would 

feel sad if the court ordered her and her siblings to return to Mother and Father. A.E.W., 

who was fourteen years old at the time of trial, also called her foster parent “Mom.” She 

testified that she wanted to be adopted by her foster parent and asserted that she felt 

“loved and appreciated” at her foster home. When questioned about the prospect of 

never seeing Mother again if Mother‟s parental rights were terminated, A.E.W. stated as 

follows: “I always love her. That is my mom but, yes, I will be okay without seeing 

her.” 

Q.D.W. was eleven at the time of trial, and although he indicated that he called his 

foster parents “Mom and dad,” he testified that he missed his parents and wanted to 
- 20 -

return home. However, when asked about what his best memory was of living at home 

with Mother and Father, he stated that his best memory was when he was in school. 

Although Ms. Walker testified that some of the children wanted to return to Mother and 

Father, she specifically noted that A.M.W. was sad about her family being separated and 

was “feeling some guilt.” Ms. Walker testified that she believed it was in the children‟s 

best interest that Mother and Father‟s parental rights be terminated. She asserted that the 

children were “thriving” in foster care and stated that changing caregivers would have a 

detrimental effect on the children‟s welfare. Ms. Walker also observed that the parents 

had not acknowledged the abuse and the effects it had on the children. 

With respect to this latter point, we note that Mother denied the extent of her abuse 

of the children at trial. Specifically, Mother denied that she had ever used an extension 

cord to beat the children or that she had taped the children‟s body parts. This denial was 

in stark contrast to the consistent reports of the children that disclosed the nature of such 

abuse, and having reviewed the record, it is clear that Mother‟s testimony on this topic 

was not accepted by the trial court. Indeed, in characterizing the nature of Mother‟s 

abuse, the trial court specifically found that “the children‟s hands and mouths have been 

duct taped.” Mother‟s refusal to acknowledge the severity of her past abuse of the 

children countenances against her desire to regain custody. Moreover, we note that the 

trial court‟s findings indicate that Mother has not achieved significant improvement 

regarding past parenting mistakes. In pertinent part, we observe that the trial court 

rejected the testimony of Mother‟s counselor that Mother has developed the skills and 

tools needed to parent the children. Although Mother takes issue on appeal with the fact 

that the Department allegedly did not exercise reasonable efforts to reunite her with her 

children, we note that the Department was relieved of making reasonable efforts with 

respect to Mother in March 2014 incident to the Juvenile Court‟s determination that 

Mother had committed severe abuse. We further note that the trial court found that the 

Department made reasonable efforts to assist Mother maintain compliance with the 

permanency plans prior to it being relieved of its efforts. 

Although it is true that Dr. Jones did not rule out the possibility that Mother could 

be an effective parent at some point in the future, he noted that “not enough progress 

ha[d] been made . . . that would warrant anything different . . . than the day that the 

children were taken from [Mother‟s] custody.” He simply noted that if reunification was 

ever to occur, Mother would need to first do both individual and family therapy sessions.

Like Mother, Father is not in a position to parent the children at this point. Dr. 

Jones stated that Father would need to demonstrate progress over a six-month period 

before reunification could even be considered. He also noted that Father would need to 

participate in parenting training with Mother. 
- 21 -

The need for permanency in the children‟s lives and their overall best interest 

takes precedence over any theoretical potential that exists for the parents‟ rehabilitation. 

Mother‟s and Father‟s past actions provide little indication that they will be capable of 

being proper parents to the children anytime soon. Mother is still denying the extent of 

the abuse that she inflicted on the children, and as we have already outlined, Father 

previously expressed little to no interest in complying with the family permanency plans 

that were created in this case. The children need permanency in their lives, and foregoing 

termination of Mother and Father‟s parental rights would not serve their best interest. 

Most of the children have foster parents who are willing to adopt them, and several of the 

children have expressed a clear preference to not return to Mother and Father. Having 

carefully reviewed the evidence presented in the record, we conclude that clear and 

convincing evidence supports the trial court‟s conclusion that termination of Mother and

Father‟s parental rights is in the children‟s best interest. 

CONCLUSION

We reverse the trial court‟s determination that Mother abandoned the children

pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iv). We also reverse the 

trial court‟s determination that Mother was in substantial noncompliance with the 

requirements of the family permanency plans. In all other respects, however, we affirm 

the trial court‟s order terminating both Mother and Father‟s parental rights. Costs of this 

appeal are assessed one-half against the Appellant Mother, L.K., and one-half against the 

Appellant Father, L.D.K. Because both Mother and Father are proceeding in forma 

pauperis in this appeal, execution may issue for costs if necessary. 

_________________________________

ARNOLD B. GOLDIN, JUDGE