IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 21, 2016 Session

IN RE MAKENZIE P., ET AL.

Appeal from the Chancery Court for Shelby County

No. CH-14-1307-3 James R. Newsom, Chancellor

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No. W2016-00400-COA-R3-PT – Filed September 30, 2016

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This appeal arises from the termination of a mother‟s parental rights to her two children. The 

Department of Children‟s Services (“DCS”) removed the children from the mother‟s home 

due to drug exposure. After finding the children dependent and neglected, a juvenile court 

awarded custody of the children to mother‟s parents. The mother‟s parents then contracted 

with a nonprofit organization to place the children with a host family while the mother sought 

treatment for her drug use. Time passed, and the children ultimately spent time with several 

host families, including, finally, potential adoptive parents. When the health of mother‟s 

parents precluded them from retaining custody, mother, mother‟s parents, and the potential 

adoptive parents requested that the juvenile court award custody to the potential adoptive 

parents. The juvenile court granted the request, and several months later the potential 

adoptive parents filed a petition in chancery court to terminate mother‟s parental rights and to 

adopt. Following a trial, the chancery court found clear and convincing evidence of one 

ground for termination of parental rights and that termination was in the children‟s best 

interest. On appeal, Mother asserts a violation of due process because she was unrepresented 

in the dependency and neglect proceedings after her parents were awarded custody of the 

children. We affirm the termination of parental rights. 

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

W. NEAL MCBRAYER,J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and KENNY ARMSTRONG, J., joined.

Andrew L. Wener, Memphis, Tennessee, for the appellant, Jennifer A.

Laura D. Rogers, Memphis, Tennessee, for the appellees, Carla W. and Mitchell W.

Stacey Graham, Bartlett, Tennessee for the appellee, Guardian ad Litem.
2

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

In March of 2012, DCS removed Makayla, then age 2, and Makenzie, then age 1, 

from the home of their mother, Jennifer A. (“Mother”), and father. Less than twelve hours 

later, the children‟s father died from a heroin overdose. In an order entered on April 5, 2012, 

a juvenile court found the children dependent and neglected based on the finding that Mother 

“tested positive for methamphetamines, benzodiazepines, propoxyphene, amphetamine, 

cocaine, and THC.[1]”

 

In addition to finding the children dependent and neglected, the juvenile court made 

two more rulings pertinent to this appeal. First, the juvenile court awarded custody of the 

children to the maternal grandparents. According to the maternal grandmother 

(“Grandmother”), Mother did not want DCS to maintain custody of the children because 

Mother was concerned about meeting the requirements imposed by DCS for reunification. 

Grandmother testified that she learned about Bethany Christian Services of West Tennessee

(“Bethany”) and a program called “Safe Families for Children.” Under the program, the 

children could be placed with a host family for up to a year while Mother attempted to 

address her drug addiction. After Grandmother and Mother had meetings with

representatives of Bethany, Mother consented to or, in her words, “went along with” custody

being awarded to her parents so that the children could be placed in the Safe Families for 

Children program. 

Second, the juvenile court addressed the continuing obligations of Mother‟s attorney. 

A court-appointed attorney represented Mother through the adjudicatory and dispositional 

phases of the dependency and neglect case. The juvenile court‟s order finding the children 

dependent and neglected and awarding custody to the maternal grandparents provided that 

Mother‟s appointed attorney “shall be relieved from the case upon the expiration of the 

statutory time for a rehearing and/or appeal.” 

 

As contemplated by Mother and Grandmother, the children never went to live with 

their maternal grandparents. Shortly after the dependency and neglect hearing, Grandmother 

signed on behalf of each child a Safe Families for Children Consent for Care Form with 

Bethany. Under the agreement with Bethany, Grandmother acknowledged a time limit on 

services under the program and responsibilities for the parent. Specifically, the agreement 

provided as follows: 

 

1

THC, or tetrahydrocannabinol, “is a marijuana metabolite that is stored in fat cells and can be 

detected in the body up to thirty days after smoking marijuana.” Interstate Mech. Contractors, Inc. v. 

McIntosh, 229 S.W.3d 674, 677 (Tenn. 2007).
3

ARRANGEMENTS: I understand that 365 days of temporary care will be 

provided for my child at no charge to me. During this time, it is my 

responsibility to provide BETHANY and [Safe Families for Children] with 

items necessary to provide for my child‟s physical needs, primarily clothing. 

During the temporary days of care, I will be working on the challenges that led 

to my needing temporary care for my child. If, after _____ days, I have not 

reached a point of stability where I can discharge my child from the Safe 

Family home, I understand that Bethany Christian Services may not agree to 

extend the days in care but will discuss the possibility of an extension with me 

depending on my circumstances.

Mother did not sign either form, but Mother, along with Grandmother, took the children from 

their foster care placement to Bethany. Mother stated later that she participated in every 

meeting at Bethany involving her children. 

Mother went to a drug and alcohol abuse recovery program offered by the Memphis 

Union Mission called Moriah House. Mother participated in the program for fourteen 

months, but then she was “kicked out” in July of 2013 for drinking alcohol. According to 

Mother, she began using drugs again within eight months of exiting the recovery program.

In late 2013, Bethany began pressing Grandmother and Mother about the length of 

time that the children had been in the Safe Families for Children program. Also complicating 

matters, the children‟s host family could no longer keep them because the family was 

experiencing their own crisis. Bethany provided Mother and Grandmother with a list of three 

families potentially able to take the children, and after meeting at Bethany with Carla W. and 

Mitchell W. on Christmas Eve, Mother selected Mr. and Mrs. W. to take the children. 

According to both Grandmother and Mrs. W., at this meeting, the parties discussed the 

potential of Mr. and Mrs. W. adopting the children if Mother could not get her life together. 

On April 30, 2014, Mother, Grandmother, and Mr. and Mrs. W. appeared before the 

juvenile court, and the court granted Mr. and Mrs. W. custody of the children. Only Mr. and 

Mrs. W. were represented by an attorney. According to Grandmother, health issues 

prevented both her and her husband from retaining custody. By the time of the hearing 

before the juvenile court, the children had lived with Mr. and Mrs. W. for nearly four months.

On August 29, 2014, Mr. and Mrs. W. filed a petition for termination of parental 

rights and adoption in the Chancery Court for Shelby County, Tennessee. As grounds for 

termination, Mr. and Mrs. W. alleged that Mother had abandoned the children both by her 

willful failure to visit and provide support and persistent conditions that prevented the 

children‟s safe return to Mother. See Tenn. Code Ann. § 36-1-113(g)(1), (3) (2014). Mr. 

and Mrs. W. also alleged that Mother was mentally incompetent to provide further care and 
4

supervision of the children. See id. § 36-1-113(g)(8). In response, Mother filed a motion for 

appointment of counsel, which the court granted. 

The chancery court conducted a hearing on the petition on October 28, 2015. At the 

hearing, the court heard the testimony of Grandmother, Mrs. W., Mother, and an attorney 

who practiced child welfare law. At the conclusion of Mr. and Mrs. W‟s proof and upon 

Mother‟s motion, the court dismissed the mental incompetence ground. 

In its subsequent well-reasoned and detailed findings of fact and conclusions of law, 

the court also dismissed the ground of abandonment. However, the court concluded that 

there was clear and convincing evidence of persistent conditions that prevented the children‟s 

safe return and that termination was in the children‟s best interest. Accordingly, the court 

terminated Mother‟s parental rights to her children. 

II. ANALYSIS

A parent has a fundamental right, grounded in both the federal and State constitutions, 

to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); 

In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 

170, 174-75 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 

1995). However, parental rights are not absolute. In re Angela E., 303 S.W.3d at 250. Our 

Legislature has identified those situations in which the State‟s interest in the welfare of a 

child justifies interference with a parent‟s constitutional rights by setting forth the grounds 

upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g)

(2014).

Tennessee Code Annotated § 36-1-113 sets forth the grounds and procedures for 

terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015). First, 

parties seeking termination of parental rights must prove the existence of at least one of the 

statutory grounds for termination listed in Tennessee Code Annotated § 36-1-113(g). Tenn. 

Code Ann. § 36-1-113(c)(1) (2014). Second, they must prove that terminating parental rights 

is in the child‟s best interest. Id. § 36-1-113(c)(2) (2014).

Because of the constitutional dimension of the rights at stake in a termination 

proceeding, the parties seeking to terminate parental rights must prove both the grounds and 

the child‟s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d 586, 

596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 

S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). This

heightened burden of proof serves “to minimize the possibility of erroneous decisions that 

result in an unwarranted termination of or interference with these rights.” In re Bernard T., 

319 S.W.3d at 596. “Clear and convincing evidence” leaves “no serious or substantial doubt 

about the correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & 
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Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the 

fact-finder‟s mind regarding the truth of the facts sought to be established. In re Bernard T., 

319 S.W.3d at 596.

A. STANDARD OF REVIEW

On appeal, we review the trial court‟s findings of fact “de novo on the record, with a 

presumption of correctness of the findings, unless the preponderance of the evidence is 

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

We then make our “own determination regarding whether the facts, either as found by the 

trial court or as supported by a preponderance of the evidence, provide clear and convincing 

evidence that supports all the elements of the termination claim.” In re Bernard T., 319 

S.W.3d at 596-97. We review the trial court‟s conclusions of law de novo with no 

presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007). 

B. DUE PROCESS

On appeal, Mother argues that her due process rights were violated because she lacked 

counsel during what she calls “critical stages” of the process. According to Mother, the 

critical stages fell between a) the date the juvenile court‟s order adjudicating the children 

dependent and neglect and awarding custody to the maternal grandparents became final and 

b) the date the petition for termination of parental rights was filed. Without question, in 

filing their petition for termination of parental rights, Mr. and Mrs. W. relied on events that 

either occurred or did not occur while Mother lacked the benefit of counsel.

A parent‟s liberty interest in the right to the care and custody of her child is protected 

by the Due Process Clauses of the federal and state constitutions.2 In re Carrington H., 483 

S.W.3d 507, 521 (Tenn. 2016), petition for cert. filed sub. nom. Vanessa G. v. Tenn. Dep’t of 

Children’s Servs., (U.S. Apr. 22, 2016) (No. 15-1317). The due process protections entitle

parents to “fundamentally fair procedures” in termination proceedings. Id. at 522 (quoting 

Santosky v. Kramer, 455 U.S. 745, 754 (1982)). However, even in parental termination 

cases, appointment of counsel is not constitutionally required in every instance.3 Lassiter v. 

Dep’t of Soc. Servs., 452 U.S. 18, 31-32 (1981). 

 

2 Our Supreme Court has previously held that due process protections of article 1, section 8, of the 

Tennessee Constitution are “synonymous with the due process provisions of [the Fifth and Fourteenth 

Amendments to the United State Constitution]” and, like the federal constitution, “encompass[ ] both 

procedural and substantive protections.” Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006).

3 By statute, Tennessee provides the right to appointed counsel for indigent parents in every 

dependency and neglect and parental termination proceeding. Tenn. Code Ann. § 37-1-126(a)(2)(B), (a)(3) 

(2014).
6

We find Mother‟s due process argument unavailing. Mother‟s appeal is from the 

order of the chancery court terminating her parental rights, not from the orders of the juvenile 

court finding her children dependent and neglected or awarding custody to Mr. and Mrs. W. 

Termination proceedings and dependency and neglect proceedings are distinct and separate 

proceedings. In re M.J.B., 140 S.W.3d 643, 651 (Tenn. Ct. App. 2004); see also In re 

Carrington H., 483 S.W.3d at 536 (declining to address an ineffective assistance of counsel 

claim for a dependency and neglect proceeding in an appeal of a parental termination case).

Furthermore, we have previously held that a due process violation occurring in a dependency 

and neglect proceeding as a result of a failure to appoint counsel may be “fully remedied by 

the procedural protections provided . . . at the termination hearing.” In re S.Y., 121 S.W.3d 

358, 366 (Tenn. Ct. App. 2003). We conclude such is the case here. 

C. GROUND FOR TERMINATION OF PARENTAL RIGHTS

Although Mother only raised a due process argument regarding lack of representation 

during a portion of the dependency and neglect proceeding, we “review the trial court‟s 

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

interests, regardless of whether the parent challenges these findings on appeal.” In re 

Carrington H., 483 S.W.3d at 525. In this case, the chancery court found termination of 

parental rights appropriate under Tennessee Code Annotated § 36-1-113(g)(3), a ground 

commonly referred to as “persistence of conditions.” See In re Audrey S., 182 S.W.3d 838, 

871 (Tenn. Ct. App. 2005). 

The persistence of conditions ground focuses “on the results of the parent‟s efforts at 

improvement rather than the mere fact that he or she had made them.” Id. at 874. The goal is 

to avoid having a child in foster care for a time longer than reasonable for the parent to 

demonstrate her ability to provide a safe and caring environment for the child. In re Arteria 

H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other grounds, In re Kaliyah 

S., 455 S.W.3d 533 (Tenn. 2015). The question before the court, therefore, is “the likelihood 

that the child can be safely returned to the custody of the [parent], not whether the child can 

safely remain in foster care . . . .” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 

1006959, at *5 (Tenn. Ct. App. July 21, 2000).

To establish persistence of conditions, the child must have been removed from the 

home for six months and: (1) “[t]he conditions that led to the child‟s removal or other 

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

abuse or neglect and that, therefore, prevent the child‟s safe return to the care of the parent 

. . . still persist;” (2) “[t]here is little likelihood that these conditions will be remedied at an 

early date so that the child can be safely returned to the parent . . . in the near future;” and (3) 

“[t]he continuation of the parent . . . and child relationship greatly diminishes the child‟s 

chances of early integration into a safe, stable and permanent home.” Tenn. Code Ann. § 36-

1-113(g)(3). Each of the statutory elements must be established by clear and convincing 
7

evidence. In re Valentine, 79 S.W.3d at 549.

We conclude that there is clear and convincing evidence of the persistence of 

conditions ground. By the time Mr. and Mrs. W. obtained custody of the children by order of 

the juvenile court, the children had been removed from Mother‟s home for over two years. 

The conditions that led to the children‟s removal still persisted. Mother admitted that her 

children were removed from her home as a result of her use of “crystal meth” and that she 

had used methamphetamines within two months of the hearing on termination of her parental 

rights. Despite this, Mother claimed she did not need further drug treatment, rather she 

“need[ed] something to help me get established again.” Mother also acknowledged having 

suicidal thoughts. 

Mother conceded that she was not ready for the children to come back to her, and the 

proof showed that situation was unlikely to change in the near future. She testified that she 

was without a job, broke, and “staying with friends and kind of going from couch to couch 

. . . .” In this circumstance, continuation of Mother‟s parental relationship also impeded the 

children‟s integration into a permanent home. Mrs. W. testified to the W.‟s desire to adopt 

the children. By the time of the hearing, the children had been in the physical custody of Mr. 

and Mrs. W. for over twenty-one months and were doing well. According to Mrs. W., the 

children referred to her as “Mom” and to her husband as “Daddy.” 

 

D. BEST INTEREST OF THE CHILDREN

Having found clear and convincing evidence of one ground for termination of 

Mother‟s parental rights, we must consider whether termination is in the best interest of the 

children. See Tenn. Code Ann. § 36-1-113(c)(2). Because “[n]ot all parental misconduct 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 

interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005). Tennessee Code 

Annotated § 36-1-113(i)4lists nine factors that courts may consider in making a best interest 

 

4

The statutory factors include, but are not limited to, the following: 

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

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

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

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

adjustment after reasonable efforts by available social services agencies for 

such duration of time that lasting adjustment does not reasonably appear 

possible;

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

or other contact with the child;

(4) Whether a meaningful relationship has otherwise been 

established between the parent or guardian and the child;
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analysis. The focus of this analysis is on what is best for the child, not what is best for the 

parent. Id. at 499. Although “[f]acts relevant to a child‟s best interests need only be 

established by a preponderance of the evidence, . . . the combined weight of the proven facts 

[must] amount[] to clear and convincing evidence that termination is in the child‟s best 

interests.” In re Carrington H., 483 S.W.3d at 535. 

The chancery court found that all of the statutory best interest factors, but one, 

weighed in favor of termination. Although the evidence preponderates against some of the 

chancery court‟s factual findings, the combined weight of the evidence in this case amounted 

to clear and convincing evidence that termination was in the children‟s best interest. As for 

the first statutory factor, the evidence showed that Mother had failed to make an adjustment 

in her circumstance, conduct, or conditions to make it either safe or in the children‟s best 

interest to return to Mother. By her own admission, Mother was not ready for the return of 

her children, and Mother was living with friends, “going from couch to couch.”

As for the second statutory factor, the proof showed reasonable efforts to assist 

Mother with making a lasting adjustment. The chancery court found that “Bethany „went the 

extra mile‟ in extending its temporary Safe Families Program beyond its usual period to give 

Mother more time to achieve rehabilitation through the program at Moriah House” and that 

“Moriah House continued to accommodate Mother until her alcohol use disqualified her from 

the program.” The evidence does not preponderate against either factual finding. 

In considering the third statutory factor, the chancery court found that Mother failed to 

 

(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). 
9

maintain regular visitation or contact with the children. Although Mother asserted that Mr. 

and Mrs. W. frustrated her efforts, the court credited Mrs. W.‟s testimony that she always 

accommodated Mother‟s requests to visit or contact the children. As we recently explained, 

“[w]hen the resolution of an issue in a case depends upon the truthfulness of witnesses, the 

trial judge, who has had the opportunity to observe the witnesses and their manner and 

demeanor while testifying, is in a far better position than this Court to decide those issues.” 

In re Navada N., No. M2015-01400-COA-R3-PT, 2016 WL 3090908, at *7 (Tenn. Ct. App. 

May 23, 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); 

Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). Thus, we give great 

weight to the credibility accorded to a particular witness by the trial court. Id. (citing Walton 

v. Young, 950 S.W.2d 956, 959 (Tenn. 1997)). We also note that Mother was unable to visit 

her children after the petition for termination was filed due to a failed drug test.

The chancery court found the fourth statutory factor favors termination. Mother failed 

to establish a meaningful relationship with the children. As noted by the chancery court, 

when DCS removed them from Mother‟s home, the children were almost 3 years and 16 

months old. Mrs. W. testified that, while she had custody of the children, Mother has called 

regularly but she visited the children only every three to four weeks. According to Mrs. W., 

some visits lasted no more than thirty to forty-five minutes. With the children being removed 

at such a young age and for such a long time, the evidence established a lack of a meaningful 

relationship. 

The evidence relative to the fifth statutory factor is wanting. The chancery court 

found “that a change of caretakers . . . would have a catastrophic effect on the Children‟s 

emotional, psychological and medical condition in relation to their present circumstances.” 

But, in making this finding, the court relied primarily on an email message from a 

representative of Bethany. No representative from Bethany testified at trial, and Mr. and 

Mrs. W. offered scant proof relative to this factor. The evidence does not support the 

chancery court‟s finding. 

As for the sixth statutory factor, the chancery court found that Mother had neglected 

the children but did not find that the factor weighed strongly in favor of termination. The 

court reasoned that the acts of Mother that led to the children‟s removal were “some four 

years removed from the present.” 

Finally, the chancery court found that the seventh and eighth statutory factors weighed 

strongly in favor of termination. As found by the chancery court, “Mother, sadly, ha[d] no 

place of abode worthy of being referred to as a „home.‟” In addition, Mother‟s mental and/or 

emotional status prevented her from providing safe and stable care and supervision of the 

children. The proof established that, in addition to an ongoing issue with drugs, Mother had 

considered suicide on several occasions.
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III. CONCLUSION

Consistent with our past precedent, we conclude that any due process violation 

associated with the prior dependency and neglect proceeding involving the children was 

remedied by the procedural protections provided to Mother as a part of the parental 

termination proceeding. Having reviewed the findings as to the sole ground for termination 

and as to whether termination was in the children‟s best interests, we affirm the decision of 

the chancery court.

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W. NEAL MCBRAYER, JUDGE