IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 6, 2020 Session

IN RE JAYLAN J., ET AL.

Appeal from the Juvenile Court for Shelby County

No. DD4025 Harold W. Horne, Special Judge

___________________________________

No. W2019-02025-COA-R3-PT

___________________________________

This appeal involves the termination of parental rights of a mother and a father. The trial 

court found by clear and convincing evidence that several grounds for termination had been 

proven and that termination was in the best interest of the two children. The mother and 

the father separately appealed. On appeal, the Department of Children’s Services “does 

not defend” some of the grounds that the trial court concluded were established. However, 

DCS maintains that three grounds for termination were sufficiently proven against the 

mother and that one ground was sufficiently proven against the father. We conclude that 

two of the remaining grounds for termination alleged against the mother were sufficiently 

proven, but we do not find clear and convincing evidence that termination of her parental 

rights is in the best interest of the children. We conclude that the sole remaining ground 

alleged against the father was not proven by clear and convincing evidence. As such, we 

reverse the termination of parental rights and remand for further proceedings.

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

Part, Reversed in Part, and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN 

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

David J. Kreher, Cordova, Tennessee, for the appellant, Anisha A. 

Autumn Chastain, Memphis, Tennessee, for the appellant, Timothy S.

Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant 

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

OPINION

12/22/2020
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I. FACTS & PROCEDURAL HISTORY

This appeal involves parental rights to two children. The oldest child, Justin, was 

born in December 2005 in Southaven, Mississippi. His parents, Anisha A. (“Mother”) and 

Timothy S. (“Father”), were unmarried, and no father was listed on his birth certificate.

Mother informed Father that Justin was his child, but Father had been living in Minnesota 

for several years at the time of Justin’s birth. (Father’s parents resided in Mississippi, and 

the child was conceived when Father had traveled to Mississippi.) Father continued to 

reside in Minnesota after Justin’s birth, while Justin resided with Mother. Father returned 

to Mississippi and visited with Justin generally around holidays and birthdays. The second 

child at issue, Jaylan, was born in October 2008 in Germantown, Tennessee. Jaylan’s birth 

certificate identified his parents as Mother and Calvin J. Justin and Jaylan initially resided 

with Mother, Calvin, and Mother’s daughter Saniiyah, in Memphis.

1

On May 15, 2010, two-year-old Saniiyah was found dead in the home. Four-yearold Justin and one-year-old Jaylan were immediately placed with their grandparents, who 

lived in the area. DCS filed a petition in the juvenile court of Shelby County to adjudicate 

Justin and Jaylan dependent and neglected and sought a no-contact order prohibiting Calvin 

from having contact with the children. The petition did not list any specific respondents. 

The petition alleged that Saniiyah’s death had been ruled a homicide and that Calvin and 

Mother had been arrested and charged with first degree murder and perpetration of 

aggravated child abuse and neglect. The petition alleged that a child and family team 

meeting had been held with the grandparents and that Justin and Jaylan were residing with 

them. The petition asked the court to award temporary custody of the children to the 

maternal grandmother, declare the children dependent and neglected, and find that Saniiyah 

was the victim of severe abuse. The only mention of Father throughout the petition was 

the following sentence: “The father of Justin A[.] is Timothy S[.] who resides in Kentucky 

(address is unknown at this time).” There is nothing in the record to indicate that Father 

has ever resided in Kentucky.

On the same day the petition was filed, the juvenile court entered a protective 

custody order bringing Justin and Jaylan into the protective custody of the court and 

awarding temporary custody to the maternal grandmother. After a preliminary hearing, the 

court entered an order confirming the award of temporary custody to the maternal 

grandmother and providing that Mother would have “temporary visitation privileges”

supervised by the maternal grandmother.

DCS contacted Father at some point in 2010 and asked him to come to Memphis 

from Minnesota. Father informed DCS that he could not come to Tennessee at that time 

 

1 We refer to these individuals by their initials to protect the privacy of the minors. We also note 

that Calvin is not a party to this appeal, but his involvement with the children is discussed to provide 

background information about their circumstances.
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because he and his girlfriend were “looking for a place” and temporarily staying in a onebedroom apartment with his girlfriend’s mother, Father’s other two children, and his 

girlfriend’s child. Father said he and his girlfriend could not take any more children at that 

point. However, Father communicated directly with the maternal grandmother and 

confirmed that she was taking custody of both boys.

After another hearing before a juvenile court magistrate, the juvenile court entered 

an order on March 18, 2011, declaring Justin and Jaylan dependent and neglected and 

finding that Saniiyah was the victim of severe abuse in the custody of Mother and Calvin. 

The order did not mention Father. The court found no proof of direct physical harm to 

Justin or Jaylan. It found strong circumstantial proof that the abuse of Saniiyah was caused 

by Calvin and that Mother should have known of the abuse and failed to protect her. 

Mother appealed to the circuit court.

After a hearing on August 12, 2011, the circuit court likewise held that Justin and 

Jaylan were dependent and neglected and that Saniiyah was the victim of severe abuse.

The order did not mention Father. It described Mother’s statement to police, in which she 

admitted that she and Calvin used physical punishment. Mother admitted that at various 

times she had spanked the child with her hand, hit her with a comb, and pinched her. She 

acknowledged that Calvin would sometimes “smack” Saniiyah in the chest and knock her 

to the ground or hit the child with his hand or a belt, shoe, or hairbrush. Mother was at 

work on the day that Saniiyah received the injuries that led to her death. When Calvin and 

the children picked her up from work at around 8 p.m., Calvin told her that Saniiyah had 

been behaving badly and had an accident in her pants. Mother noticed that Saniiyah was 

acting weak, slouched over, and spitting up on herself. At home, Saniiyah was walking 

very slowly and had to be carried by Mother to a pallet, where she began vomiting yellow 

and red fluid. Calvin told Mother that Saniiyah had eaten a popsicle and that she was 

“acting.” Mother noticed that the child’s hands were cold. She saw Calvin roughly grab 

and turn the child’s head and grab her arm to make her lie down. The next morning, 

Saniiyah was found deceased lying on the floor in another room.

The order also summarized the forensic interview of Justin, who was four at the 

time of Saniiyah’s death. He and Jaylan had seen Calvin hold Saniiyah by the neck, throw 

her against a wall, and beat her with shoes and a belt. Saniiyah also told Justin that Calvin 

threw her on the toilet. Justin reported that his sister was bleeding from the mouth. The 

medical examiner who performed the autopsy on Saniiyah testified by deposition. He 

found bruises on her head and chest, hemorrhaging in the brain, new rib fractures in 

addition to fractures that had healed over time, bruising and hemorrhaging around the 

intestine, blood in the peritoneal cavity, and lacerations of the liver consistent with blunt 

force trauma equivalent to a motor vehicle crash. The cause of death was determined to be 

blunt force injuries to the torso, and the manner of death was ruled a homicide.

The circuit court found that Calvin committed severe abuse of Saniiyah by beating 
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her and that “[Mother’s] failure to protect Saniiyah rose to the ‘knowing’ requirement to 

establish severe abuse[.]”2It found that Mother did not seek medical attention for Saniiyah 

despite witnessing signs for hours that she was in serious distress with symptoms of a 

severe injury. Regarding disposition for Justin and Jaylan, the circuit court noted that they

had resided with their grandmother since Saniiyah’s death. DCS recommended the 

grandmother as a suitable relative placement, and the grandmother had agreed to provide 

“eyes on” supervision of Mother during her visits with the children. The court found that 

the grandmother was employed, able to provide support, and an appropriate caregiver for 

the children. As such, the court found it in the best interest of Justin and Jaylan to be placed 

in the “permanent custody” of the grandmother.

After the dependency and neglect appeal concluded in 2011, Justin and Jaylan 

resided with their grandmother for several years without incident. During that time, Calvin 

was convicted of first-degree felony murder and aggravated child abuse and sentenced to 

life imprisonment. Mother pled guilty to attempted aggravated child abuse. She received 

a ten-year sentence, which was suspended, and Mother was placed on probation. While 

residing with the maternal grandmother, Justin and Jaylan were allowed to continue visiting

with Mother. Justin also continued to visit with Father roughly once a year, when Father

traveled to Mississippi or Justin traveled to Minnesota with his paternal grandparents to 

visit Father there.

In December 2016, the maternal grandmother was arrested for some unspecified 

offense, and her boyfriend dropped off the children at Mother’s house during the middle 

of the night. By that time, the boys were ages eleven and eight. Mother took the boys into 

her home and contacted DCS. A woman came to Mother’s home, took photographs, asked 

questions, and informed Mother that she needed to obtain paperwork from juvenile court 

before she could enroll the children in school.

On January 17, 2017, Mother filed a pro se petition for dependency and neglect, 

alleging that the children’s guardian, the grandmother, was incarcerated and unfit to care 

for the children. Mother sought modification of the 2011 order granting permanent custody 

to the maternal grandmother. The petition stated that Jaylan’s father was incarcerated and 

that Justin’s putative father was Timothy S., address unknown. Mother’s petition stated 

that she was now stable and that she desired to have the children legally in her care and 

custody.

On March 7, 2017, a hearing was held before a juvenile court magistrate. The 

written order states that “on the Court’s own motion,” the magistrate determined that the 

 

2

See Tenn. Code Ann. § 37-1-102(b)(23)(A) (2010) (defining severe child abuse 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 

great bodily harm or death and the knowing use of force on a child that is likely to cause great bodily harm 

or death”).
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children “should be brought within the custody of the court.” The magistrate found 

probable cause to believe that the children were dependent and neglected and determined 

that it was in their best interest to enter foster care. The children were placed in the custody 

of DCS and sent to a foster home in Memphis. A preliminary hearing was held on March 

10. The court entered a second order finding no less drastic alternative than to place the 

children in DCS custody. The order stated that DCS was relieved of making reasonable 

efforts toward reunification with Mother. It also stated that the children would have to be 

assessed by a therapist before the court would approve any visitation with Mother. The 

children attended counseling, and Mother’s visitation was reinstated at some point.

On or about April 4, 2017, Father was en route from Minnesota to Mississippi when 

he called Mother to arrange a visit with Justin and Jaylan. (Father routinely communicated 

with Mother about the boys even though she did not have legal custody.) Mother informed 

Father, for the first time, that the boys had been placed in a foster home less than a month 

earlier. She told him that a meeting about them was scheduled for 2:00 p.m. that same day.

As a result, Father traveled to Memphis and attended the child and family team meeting 

with DCS that afternoon. Father informed DCS that he wanted to do whatever was 

necessary to obtain custody of not only Justin but also Jaylan. Mother attended the meeting 

as well.

A family permanency plan was developed during the meeting, which included a 

“Statement of Responsibilities” for Father and Mother.3 The plan listed Father as Justin’s 

putative father and included his contact information in St. Paul, Minnesota. For Justin, the 

plan listed dual goals of return to parent or adoption, and for Jaylan, the plan listed a goal 

of exiting custody with a non-relative or adoption. The plan set a target date one year later, 

on April 5, 2018. The plan noted that Justin and Jaylan had been placed in a foster home 

less than a month earlier. It stated as a “strength” that they had “found residential stability” 

in DCS custody. As a “concern,” regarding residential stability, the plan stated, “[Father] 

has recently come forward to seek out custody for Justin [] and Jaylan []. The father has 

lived in Minnesota and is willing to move to Mississippi so that he could be around family 

and a support system.” The plan also noted as a concern that Father was only a putative 

father and that he had not been “around” for several years. Even though Father lived in 

Minnesota, the statement of his responsibilities required him to contact DCS, Omnivision, 

or the foster parent to schedule visits with the children at least twice per month for a total 

of at least four hours per month. The Statement of Responsibilities also required Father to 

go to juvenile court with Mother to legitimate Justin. It also required Father to “inform the 

 

3 We note that one ground for termination alleged against Father was substantial noncompliance 

with the permanency plan. However, this ground was not alleged against Mother. As such, we will focus 

on the Statement of Responsibilities listed for Father without as much emphasis, at this point, on the tasks 

listed for Mother. The plan required her to go to court with Father to legitimate Justin, maintain stable 

housing and income, complete a parenting assessment at her expense, and visit the children. However, it 

also noted that DCS had been relieved of making efforts to assist Mother so she would be responsible for 

completing these tasks on her own.
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department” when he had moved to Mississippi so that DCS could work on an ICPC study. 

He was required to “obtain and maintain stable housing and income.” The plan stated that 

Father would “show proof of stability with utilities and will ensure the home is suitable for 

the youths.” Finally, Father was required to participate in a parenting assessment and 

follow all recommendations. The April 4 permanency plan was ratified by the juvenile 

court on June 16, 2017.

Although Father initially continued to reside in Minnesota, he attended a hearing in 

the dependency and neglect case on May 23, 2017, but the matter was continued. That 

same day, the children’s guardian ad litem filed an intervening petition in the dependency 

and neglect action. The guardian ad litem alleged that Mother should not be “eligible” for 

consideration as a custodian for the children because she was still serving a ten-year 

probated sentence in connection with Saniiyah’s death seven years earlier. The guardian 

ad litem acknowledged that Father had “appeared at both the parenting team meeting and 

before the Court and indicated that he intended to take custody of both boys,” but that he 

had not yet established paternity. Thus, the guardian ad litem supported leaving the 

children in the custody of DCS.

Another hearing was held in the dependency and neglect case on August 1, 2017. 

Father was present for this hearing as well, and so was Mother. The juvenile court 

magistrate dismissed Mother’s initial petition insofar as custody was concerned because of 

the prior adjudication of severe abuse and her ten-year sentence. The court granted the 

intervening petition of the guardian ad litem. The magistrate found clear and convincing 

evidence that Justin and Jaylan were dependent and neglected because their guardian, the 

maternal grandmother, had been incarcerated for a period of months and did not seek to 

retrieve the children upon her release. After concluding that the children were dependent 

and neglected, the court then evaluated the children’s best interest with regard to custody. 

The magistrate noted that Father “has taken some steps as previously outlined by both the 

Court and the Department, [but] he has not taken any substantial steps toward meeting the 

legal standard sufficient to be considered as a custody placement.” The magistrate 

concluded that it was in the best interest of the children to remain in the custody of DCS. 

One week later, on August 8, 2017, a DNA test report was issued confirming that Father is 

in fact Justin’s biological father. A request for a rehearing by a juvenile court judge was 

also filed in the dependency and neglect case.

In December 2017, Father moved from Minnesota to Nesbit, Mississippi, not far 

from Memphis. Father moved in with his father. Notes from a foster care review board 

meeting on January 3, 2018, indicate that Father was “just moving here” but that visitation 

had “started” and he had already attended one visit. The notes also state that “[Father] a/w 

court to sign birth cert.” However, DCS would not permit the child to cross state lines to 

visit with Father in Mississippi. According to the testimony of family service worker, 

Larry Foster, “[t]he only way he could cross state lines is through a travel authorization, 

and I don’t believe we had done a travel for him to go to Mississippi to the grandfather’s
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house.”

The permanency plan was revised on February 27, 2018. All parties participated in 

the child and family team meeting by telephone, including Father and Mother. The plan’s 

target date was extended from April 5, 2018, to August 27, 2018. The Statement of 

Responsibilities remained essentially the same, requiring Father to obtain and maintain 

stable housing and income, legitimate Justin, complete a parenting assessment, and visit 

the children twice per month for a total of four hours. The only change in his

responsibilities was deletion of the requirement to notify DCS when Father moved to 

Mississippi and replacement with a requirement to “follow through with the ICPC 

process.” The revised plan was ratified on March 16, 2018. By March 2018, Father had 

informed Mr. Foster from DCS that he was working at a Buffalo Wild Wings restaurant, 

he had provided a letter signed by his father stating that Father was living with him, and 

the ICPC process was underway.

On April 9, 2018, DCS filed a petition to terminate the parental rights of Mother, 

Father, and Calvin. The petition noted that Father had been determined to be the biological 

father of Justin by paternity testing but that he was not yet listed on the birth certificate. 

The grounds for termination alleged against Father were abandonment by willful failure to 

visit or support, substantial noncompliance with the permanency plan, and failure to 

establish parentage. Against Mother, the petition alleged abandonment by willful failure 

to visit or support, severe child abuse, sentence for severe child abuse, and failure to 

manifest a willingness and ability to assume custody. The petition alleged that it was in 

the best interest of the children to terminate parental rights.

Shortly thereafter, on May 3, 2018, the State of Mississippi issued an amended birth 

certificate for Justin, listing Father as his father and changing Justin’s last name to Father’s 

last name. Father and Mother were present for a hearing in the termination case on June 

7, 2018, and the trial court appointed counsel for both. Father and Mother attended another 

hearing on July 19, 2018, and the case was continued for trial in December. On July 28, 

2018, Father moved from his father’s house in Nesbit, Mississippi, to live with a girlfriend 

(whom he had met months earlier) in Republic, Missouri. At some point, Father married 

his girlfriend. Within a month of his move, Father began working at the local Buffalo Wild 

Wings.

On August 30, 2018, another hearing was held in the rehearing of the dependency 

and neglect case. Father returned from Missouri to attend the hearing, but the matter was 

continued again. Notes from a foster care review board meeting on September 4, 2018 

state that Father had moved out of state in July, that he was currently living in Missouri, 

and that he “needs to redo” the ICPC.4 The notes reflect that Father “wants to adopt.” The 

 

4 At trial, Mr. Foster testified that he was unaware that Father had moved from Mississippi to 

Missouri in July and that he did not learn this fact until a December court hearing that Father attended. 
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notes further reflect that Father “was visiting regularly prior to moving out of state in July” 

and was visiting “often.” The summary states that Father had completed the tasks of 

legitimating Justin and completing a parenting assessment and following its 

recommendations. However, the notes state that Father had not completed the 

requirements of maintaining stable housing and income, visiting four hours per month, or 

completing the ICPC process. 

The termination trial scheduled for December was continued and rescheduled for 

February. DCS subsequently filed an amended termination petition alleging one additional 

ground against Father (failure to manifest a willingness and ability to assume custody) and 

deleting one ground alleged against Mother (abandonment by failure to visit). Father 

returned from Missouri and attended the termination hearing on February 28, 2019, but the 

court entered an order stating that it “ran out of time to hear this matter today as there were 

no available courtrooms in the afternoon as there were no court deputies available due to 

training of court personnel.” The court acknowledged that a continuance was not in the 

best interest of the children but reset the termination trial for June. Father was also present 

for the rehearing of the dependency and neglect case on February 28, 2019, but a similar 

order was entered stating that the court “ran out of time to hear this matter today as there 

were no available courtrooms in the afternoon” and no court deputies due to training. It

was also rescheduled for June. 

The permanency plan was revised again on March 1, 2019. The plan reflected 

Father’s address in Republic, Missouri. The goal was changed solely to adoption. DCS

altered Father’s Statement of Responsibilities. The original requirement for him to “obtain 

and maintain” stable housing and income was changed to only require him to “maintain” 

stable housing and income. It added new requirements for Father to provide proof of 

housing with a copy of a lease, show proof of income with a copy of his paycheck stubs, 

provide “proof” of legitimation of Justin, and maintain contact with DCS. The plan stated 

that DCS would “follow through with submitting another ICPC for [Father] since he has 

moved to Missouri,” and Father would “follow through with the ICPC process.” The plan 

required Father to visit four hours per month. All parties participated in the development 

of the plan by phone, including Father.

Father returned to juvenile court on June 13, 2019, for the rescheduled termination 

trial and rescheduled rehearing of the dependency and neglect case. An order was entered 

in the termination case stating that the court “ran out of time to hear this matter today as it 

was conducting a contested rehearing on the dependency portion all day.” Thus, the 

termination trial was rescheduled again for July. The dependency and neglect rehearing 

was conducted on June 13 and June 17 before a magistrate appointed as special judge. The 

 

However, the foster care review board summary from September 4 states that Father had moved out of state 

in July and that he was living in Missouri. Mr. Foster signed the foster care review board summary on 

September 4. Thus, it appears that Mr. Foster knew of Father’s July 28 move at least by September 4.
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special judge, like the magistrate before, dismissed Mother’s original petition insofar as 

custody was concerned due to the prior adjudication of severe abuse and her ten-year 

sentence. The special judge applied Tennessee Code Annotated section 37-1-130(c), which 

states, “No child who has been found to be a victim of severe child abuse shall be returned 

to the custody or residence of any person who engaged in or knowingly failed to protect 

the child from the brutality or abuse unless the court finds on the basis of clear and 

convincing evidence that the child will be provided a safe home free from further such 

brutality and abuse.” The special judge found no clear and convincing evidence that 

Mother would provide a safe home because “she doesn’t believe that she did anything 

wrong relating to her daughter” and testified that she “should not have plead guilty to the 

criminal charge, she just wanted to get out of jail.” The special judge granted the 

intervening petition filed by the guardian ad litem and found the children dependent and 

neglected because the maternal grandmother was incarcerated for a period of time, she did 

not seek to retrieve the children upon her release, and the children suffered “educational 

neglect” in her care. He also found that Father “failed to support said child and his 

visitation was sporadic.” Like the magistrate before, the special judge found that Father 

“has taken some steps as previously outlined by both the Court and the Department, [but] 

he has not taken any substantial steps toward meeting the legal standard sufficient to be 

considered as a custody placement.” The special judge found that Father “has not visited 

said child face to face in 2019, other than token visitation during court, and he has failed 

to support said child.” As such, the special judge found that it was in the best interest of 

the children to remain in DCS custody. The order specified that the parties could appeal 

to circuit court within ten days. Father appealed the dependency and neglect action to 

circuit court.

The termination trial was conducted over the course of two days -- July 18 and 

September 5, 2019. At the outset, DCS announced that it was striking the “putative father 

grounds” against Father because he had provided a birth certificate with his name on it. As 

such, for Father, this left the grounds of abandonment by willful failure to visit or support, 

substantial noncompliance, and failure to manifest a willingness and ability to assume 

custody. For Mother, the remaining grounds were abandonment by willful failure to 

support, severe child abuse, sentence for severe child abuse, and failure to manifest a 

willingness and ability to assume custody. 

The trial court heard testimony from Father, Mother, thirteen-year-old Justin, and 

Mr. Foster, the DCS family service worker. Father testified that he had lived in Minnesota 

for fifteen years, and while living there, he saw Justin when he traveled to Mississippi or 

when his parents brought Justin to Minnesota for visits there. Father acknowledged that 

DCS contacted him in 2010 when Saniiyah died but said he and his girlfriend were unable 

to take in another child at that time because they were looking for a place to live and staying 

in a one-bedroom apartment with her mother and their three children. Father said he 

communicated with Justin’s maternal grandmother directly and also maintained contact

through Mother and his parents. Father estimated that he saw Justin about seven times 
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between 2010 and 2017 -- twice in Minnesota and five times in Mississippi. He said he 

also talked to Justin throughout the school year. Father said he provided Mother and the 

grandmother with money and items for Justin while he was in their care. Father said when 

he sent gifts or items for Justin, he also provided them for Jaylan so that one child was not 

“singled out.” Father said he considered Jaylan to be “family” even though they were not 

related by blood.

Father testified that DCS did not contact him when Justin was placed in DCS 

custody in March 2017, and he learned about the situation in April when he contacted 

Mother about scheduling a visit. Father said that he attended the child and family team 

meeting that same day and told DCS that he wanted to do whatever was necessary to get 

custody of Justin and Jaylan. Father testified that he moved from Minnesota to Mississippi 

in December 2017 to “get Justin out of foster care” and also care for his father, who was 

suffering from Alzheimer’s disease. Father worked at Buffalo Wild Wings while in 

Mississippi. He said he contacted the foster parent directly, and they set up visits 

“regularly” and “fairly often.” Father said it was his understanding that “they were doing 

an ICPC study” to determine whether his home in Mississippi would be a good placement 

for Justin. Although Father lived in Mississippi for seven months, the ICPC study was not

completed by the time he moved to Missouri in July 2018.

Father acknowledged that when he lived in Nesbit, Mississippi, he would generally 

meet the foster parent for visits ten to fifteen minutes away from his home, but his current 

home in Missouri was around five hours away from Memphis. Still, Father testified that 

he decided to move because he felt that in Missouri he could provide a better and safer 

place for the kids compared to the Memphis area. He had researched schools and did not 

feel that Memphis was a safe environment for raising two young boys. Father also said 

that his father was in an agitated state due to his Alzheimer’s disease, and he worried about 

what might happen if the children were there. Father said his wife’s home “had extra room” 

for the children to come live with them there. Father said he had contacted the Buffalo 

Wild Wings restaurant near his wife’s home before the move, and they agreed to start him 

out “at a nice rate.” He began working there within a month of his move to Missouri.

At the time of trial, Father had been residing with his wife in the same location in 

Republic, Missouri, for one year. Father admitted that the frequency of his visits had 

“tapered” after he moved to Missouri. However, the testimony about his visits was a bit

unclear. Initially, he estimated that over the past year, he had visited with Justin four to 

five times on dates that were not court dates. Later, however, Father appeared to concede 

that he was mistaken and that those visits he described had occurred while he lived in 

Mississippi. Father had not driven from Missouri to Tennessee for the sole purpose of a 

visit without also attending court while in town. He said he tried to coordinate visits with 

Justin around the many court dates when he would already be returning to Tennessee so 

that he would have less days off work. He said that it was also difficult to schedule visits 

with the children being in school and him working weekends. Father was working two 
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jobs in Missouri. He testified that he had five other children living up north and essentially

worked one job to pay toward his children and a second job to pay his own bills. Father 

also pointed out that DCS required him to maintain employment.

At first, in Missouri, Father had worked full-time (plus overtime) at Buffalo Wild 

Wings, Monday to Saturday from 4 p.m. until closing. He also worked at McDonald’s,

Tuesday to Saturday from 6 a.m. to 2 p.m. By the time of trial, Father was still working at 

McDonald’s as a “manager in training,” and he was working a second job at Foot Locker 

in the evenings from 5 p.m. to 10 p.m. and on some Sundays. Thus, Father explained that 

he had already taken time off work from these jobs to attend the many hearings in 

Tennessee in the dependency and neglect case as well as the termination case. Father 

testified that whenever he attended a court hearing, he would talk with the foster parent 

after court and ask for time to be with Justin either that day or another day. He often drove 

to Tennessee for hearings and returned to Missouri in the same day. One month before 

trial, Father had visited with Justin for Father’s Day at a relative’s house for an hour after

a court appearance. He also described taking Justin to Bartlett to get a haircut in the fall of 

2018 and buying him food or games “[w]henever [he had] seen him” that fall. He said 

there were other times when he tried to coordinate visits with the foster parent in Memphis, 

but she already had plans on the days he requested.

Father said he maintained telephone communication with Justin when he was unable 

to visit, either through the foster parent’s landline phone, Justin’s cell phone, video chats 

online, or online video games. He estimated that he communicated with Justin at least once 

or twice a week. Father testified that DCS never told him that he should send child support 

to the foster parent but that he had purchased things for Justin and bought items during 

visits, such as video games, food, or a haircut. He testified that he would be able to provide 

for Justin’s needs on a daily basis.

Regarding the permanency plan requirements, Father testified that he was asked to 

submit to a DNA test to show that he was Justin’s father, and he did so. He said after the 

result came back in 2017, he went with Mother and presented the results in order to have 

his name added to the birth certificate for Justin. Father testified that he was asked to take 

a parenting assessment and completed that requirement as well. As for stable housing, 

Father said he relocated from Minnesota to Mississippi in an effort to get Justin out of 

foster care, but after waiting seven months on the ICPC process, he decided to move to 

Missouri. Father said he provided DCS with his address and information regarding where

he would be in Missouri and had maintained that home for one year. Father said he was 

asked to maintain employment, and he had done so and provided DCS with his employment 

information. Father said that the ICPC process was underway in Missouri and that 

someone came to his house and did a home study with him and his wife, but the process 

was not finalized yet because they were still waiting on a background check from 

Mississippi. He said the background check from Minnesota had already been received. 

Regarding visitation, Father said he had asked to visit with Justin and tried to maintain 
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visits to the best of his ability, and he maintained communication even when he was unable 

to visit in person. Father said he was never offered any assistance related to visitation.

Father acknowledged that Justin and Jaylan had a very close bond and said he did 

not want to separate them. He testified that if he was not allowed to assume custody of 

Jaylan, he would arrange for Justin to continue visiting with Jaylan in Memphis on 

weekends. Father said that Justin also had many other relatives in and around Memphis, 

including Mother and many grandparents, and he did not feel it would be in Justin’s best 

interest to take him away from his relatives through termination of parental rights or 

otherwise.

Mother testified as well. She confirmed that Father was in Minnesota when Justin 

was born but that he visited with Justin around holidays. She recalled Father attending 

three of Justin’s birthday parties. Mother said Father sent her $300 to $400 every other 

month or so, and if she asked him for something in particular, he would send it.

She testified briefly regarding Saniiyah’s death in 2010. Mother maintained that 

she did not know that Calvin was abusing Saniiyah. However, she said that if she had the 

chance to do anything differently, she would take Saniiyah to the doctor. Mother stated, 

“If I would’ve just took her, maybe she would still be here, but I just thought she was sick, 

and I didn’t know. So, I didn’t go.”

Mother testified that the maternal grandmother allowed her to visit with the boys 

while they lived with her. Mother was aware that Justin had also traveled with Father’s 

parents to Minnesota to visit Father during that time, as she discussed it with the maternal 

grandmother and saw pictures from the trip. Mother noted that whenever Father came from 

Minnesota and took Justin for visits, he always took Jaylan with him too. She said the two 

boys would go visit Father’s family with him and that Jaylan calls Father’s father 

“granddad.” She said they would also attend church with Father’s family. Still, Mother 

admitted that she did not initially inform Father that Justin and Jaylan had been placed in 

foster care in March 2017. She said that when she told him when he called in April, he 

immediately said he wanted to assume custody of both boys so that they would not be 

separated.

Mother testified that she “tried to do the right thing” by notifying DCS when the 

children were brought to her home. She had sought modification of the custody order, and 

the children lived with her from December 6, 2016, until March 7, 2017. Although Mother 

was not permitted to visit Justin and Jaylan right after they were removed from her home 

and placed in foster care, the children had attended counseling, and visitation was 

subsequently approved. Since that time, Mother had maintained regular communication 

and visitation with them. She visited the children one to three times per month and talked 

to the children on the phone three to four times per week. She sent gifts for them every 

once in a while. Mother was also aware that Father had bought shoes and clothes for both 
- 13 -

Justin and Jaylan to go back to school. She said that Justin had “FaceTimed” her to show 

her his clothing and shoes.

At the time of trial, Mother had been working at Taco Bell for the past three years. 

She had been in her current residence for over two years with a lease in her name. Aside 

from Justin and Jaylan, Mother had a two-year-old son and a seven-year-old daughter. The 

son lived with Mother, but the daughter was born in 2012 when Mother was in jail and had 

resided with a grandmother ever since. Mother retained legal custody of the daughter and 

had visits with her every other weekend. Justin and Jaylan had also visited with the 

daughter (their half-sister) when they lived with the maternal grandmother. Mother

testified that she had completed community service, moral recognition therapy, anger 

management, and parenting classes, all as terms of her probation.

Mother believed that the boys should be permitted to “go home with family,”

whether it was to her home or Father’s home. She acknowledged that the boys had been 

in foster care for two years but said they had always lived with family otherwise. She said 

the boys had family members and siblings that they “don’t get to see.” Mother also knew

Father’s wife, thought “very highly” of her, and believed that she would be appropriate to 

care for the children. Mother believed the children would be in a safe environment with 

Father and that he would provide for their needs. She also believed that Father would 

permit her to maintain contact with the boys while in his care. Mother thought that it would 

be very hard on the boys if they were separated.

Larry Foster from DCS also testified. He had been assigned to the case since the 

children entered foster care in March 2017. Mr. Foster noted that DCS was relieved of 

making efforts to reunite Mother with the children. However, Mr. Foster said he explained 

to Father what he would need to do in order to gain custody of his child, and those 

requirements were put in the form of a permanency plan. Mr. Foster also explained the 

criteria for terminating parental rights to the parents.

Mr. Foster testified that Father informed him of his move to Mississippi so that the 

paperwork could be completed for the ICPC process and that DCS helped Father complete 

the paperwork. He testified that Father also let DCS know that he was working at Buffalo 

Wild Wings in Mississippi, and he received a letter signed by Father’s father stating that 

he was living with him. Mr. Foster testified that Father’s visitation while living in 

Mississippi was “kind of sporadic but often.” He said that Father set up visits directly with 

the foster mother. Mr. Foster was aware that the child would sometimes go to church with 

Father and his family, but he said that it was under the supervision of the foster parent.

As previously noted, Mr. Foster testified that he was unaware that Father had moved 

to Missouri in July until Father attended a court hearing in December. (However, the foster 

care review board summary from September 4 suggests otherwise.) Aside from that one 

time period, Mr. Foster agreed that Father had maintained contact with DCS and was 
- 14 -

always “cooperative” and “responsive” when he needed things from Father. Mr. Foster 

said that Father never expressed that he needed any kind of financial assistance or help 

coming to visits, so DCS never offered any of those things to him. Mr. Foster said he never 

received a paycheck stub from Father but that Father did send him a picture of something 

printed from a cash register at the McDonald’s where he was employed in Missouri, 

showing the physical address.

Mr. Foster acknowledged that Father wanted to take both boys into his home so that 

they could stay together, but Mr. Foster did not believe Father was in a position to care for 

a child ‘due to the instability of moving from place to place to place and not staying stable 

in one place for a certain amount of time.’ However, Mr. Foster admitted that he was not 

aware of whether Father’s current home in Missouri, where he had been residing for one 

year, was healthy or safe for children because the ICPC process had not been completed. 

On the first day of trial, Mr. Foster testified that he had not been in contact with the 

individual facilitating the ICPC process in Missouri, or the person with that responsibility 

in Mississippi. By the second day of trial, Mr. Foster had checked on the status of the 

ICPC and learned that the designated contact person in Tennessee still had not heard 

anything back from Missouri. The contact mentioned that possibly everything had been 

completed except receiving something from Mississippi.

Mr. Foster said that even if Justin was placed with Father, DCS “may not consider” 

placing Jaylan with Father due to the lack of any relational tie. Mr. Foster acknowledged 

that Mother had also stated that she wanted custody of the boys. He was aware that she 

had been working at Taco Bell, and Mother had provided him with her address. However, 

Mr. Foster did not believe that it was in the best interest of the children to be placed with 

Mother because she was still on probation for the remainder of her ten-year sentence. Mr. 

Foster testified that the boys were doing very well with their foster mother, aside from one 

day when they skipped school and could not be located for some time. Mr. Foster believed 

that it was in the best interest of the children to terminate parental rights.

The trial court also heard testimony from thirteen-year-old Justin. He was entering 

the eighth grade when the termination trial began. He was doing well in school and played 

two instruments in the band. His younger brother was ten years old. Justin testified that 

he visits with Mother at least every month and that he talks to her through social media 

almost every day. Justin said he also talks to Father every week on his cell phone. He said 

he receives text messages from Father too, but not every day. Justin said he did not talk 

on the phone with Father before he entered foster care but that he did have a relationship 

with Father. Justin described visiting with Father at the grandfather’s house in Mississippi

and visiting him in Minnesota. Justin could remember seeing Father four times before he 

had entered foster care, while Father lived in Minnesota and he resided with the maternal 

grandmother. He said he saw Father “quite a bit” after he moved to Mississippi, but not as 

often after he moved to Missouri. He described a recent visit with Father at a “pool party” 

for Father’s Day. He said that Father bought clothes for him and video games.
- 15 -

Justin and Jaylan had been living with their foster mother for two years at the time 

of trial. When asked if he would prefer to be adopted or for his parents to remain his mother 

and father, Justin responded, “I would rather try to stay with my dad.” Justin said he had 

really enjoyed getting to know his father and seeing him when he is able to come to 

Tennessee. Justin said the best-case scenario in his mind was for him and Jaylan to both 

live with Father. He said that Father treated Jaylan like a son too. However, when asked 

if he would still prefer to live with Father if it meant leaving Jaylan by himself in foster 

care, Justin said he would want to stay with his brother. He said staying with his little 

brother was most important to him. Justin initially said if the court found that he could not 

stay with either Mother or Father, he would be okay with staying with the foster mother 

and being adopted by her. However, Justin said it was important to him to keep his 

relationship “going” with Father. He said it would bother him if Father and Mother had 

their parental rights terminated and were not permitted to contact him anymore. After 

discussing the possibility of no contact with his parents, Justin acknowledged that he may 

have changed his opinion about adoption somewhat. He said he would not want something 

to happen that would take away Father’s ability to contact him or “be [his] dad.” Justin 

said he felt safe with Father and thought that he could take care of him. He said he knew 

why he was not living with Mother but that he did not know why he was not living with 

Father.

When questioned by Mother’s attorney, Justin said he would also take the 

opportunity to live with Mother if he could. In fact, Justin said that if he could choose, his 

first choice would be to live with Mother. He remembered his younger sister but said that 

he is not able to see her now because he visits with Mother at her place of employment. 

Justin said he sees his two-year-old brother on court dates.

At the conclusion of the testimony, Father’s counsel indicated that she wished to 

present a rebuttal witness, whom she described as “the worker doing the ICPC in 

Missouri.” She said the witness was “available telephonically to state what has been 

completed and the status of her investigation since February.” The special judge 

responded, “That’s not going to help me.” He added, “whether he’s in various situations 

has no bearing on the grounds for the termination. If he lives in a castle now making a 

million dollars a week, it’s what happened in that four months prior to the filing of the

petition, right?” Father’s counsel agreed but said that the witness could testify as to 

whether she had verified Father’s places of employment and his residence. She also said 

that if a ground was proven, Father’s current circumstances and whether he cooperated 

with the ICPC process would still remain relevant to the best interest analysis. The special

judge responded, “Okay. I don’t feel I need that.”

After closing arguments, the judge announced his oral ruling and stated that the 

grounds of abandonment by willful failure to visit and support and substantial 

noncompliance had been proven against Father. However, he found that DCS had not
- 16 -

presented clear and convincing evidence that Father failed to manifest a willingness and 

ability to assume custody. Against Mother, the judge found sufficient evidence to support 

the grounds of abandonment by failure to support, severe abuse, sentence for severe child 

abuse, and failure to manifest a willingness and ability to assume custody.

5

As for the best interest of the children, the judge found “fairly overwhelming” 

evidence that Mother continues to present a substantial risk of harm to the children. He

noted that she had maintained regular visitation with the children and had a meaningful 

relationship with them, which weighed in her favor, but nevertheless found that termination 

of Mother’s parental rights was in the best interest of the children. The judge also 

concluded that termination of Father’s parental rights was in the best interest of the 

children. The judge stated that a change of caretakers would be devastating to the children. 

He also relied “heavily” on the fact that the two brothers could remain together if they 

remained in the foster home. The trial court entered a written order setting forth its findings 

of fact and conclusions of law on November 5, 2019. Mother and Father separately filed 

notices of appeal.

II. ISSUES PRESENTED

Father presents the following issues, which we have restated, for review on appeal:

1. Whether Father’s due process rights were violated when DCS did not make any 

statutory allegations against him in the dependency and neglect proceedings such 

that he should have been given his child;

2. Whether clear and convincing evidence was presented regarding the grounds for 

termination of Father’s parental rights; and

3. Whether clear and convincing evidence was presented to show that termination of 

Father’s parental rights was in the best interest of the children.

Mother presents the following additional issue on appeal:

1. Whether there is clear and convincing evidence that terminating Mother’s parental 

rights is in the best interest of the children.

Even though Mother does not present any issue regarding the grounds for termination of 

her parental rights, we must review the trial court’s decision as to grounds as well. See In 

re Carrington H., 483 S.W.3d 507, 511 (Tenn. 2016) (holding that “appellate courts must 

review a trial court’s findings regarding all grounds for termination and whether 

termination is in a child’s best interests, even if a parent fails to challenge these findings 

on appeal”).

 

5

In the final written order, one sentence erroneously states that the court found substantial 

noncompliance against Father and Mother. This appears to be a scrivener’s error.
- 17 -

We note, however, that DCS states in its brief on appeal that “the Department does 

not defend the grounds of abandonment by failure to support against Mother; nor does the 

Department defend the grounds of abandonment by failure to visit or abandonment by 

failure to support against Father.” We therefore reverse the trial court’s findings as to these 

grounds. See In re Colton B., No. M2018-01053-COA-R3-PT, 2018 WL 5415921, at *6 

(Tenn. Ct. App. Oct. 29, 2018) perm. app. denied (Tenn. Jan. 22, 2019) (“[W]hen the 

petitioner who sought termination has conceded on appeal that a ground was not 

sufficiently proven, this Court has, in several cases, reversed the trial court’s finding as to 

that ground without reaching the merits of whether the ground was actually established.”); 

In re Zane W., No. E2016-02224-COA-R3-PT, 2017 WL 2875924, at *7 (Tenn. Ct. App. 

July 6, 2017) perm. app. denied (Tenn. Sept. 26, 2017) (reversing a ground that DCS “does 

not defend” and noting that Carrington “has never been construed to require this Court to 

also consider the grounds sustained by the trial court and thereafter conceded or waived by 

the non-parent on appeal”). As it is, DCS only defends the ground of substantial 

noncompliance against Father and the grounds of severe abuse, sentence for severe child 

abuse, and failure to manifest a willingness and ability to assume custody against Mother. 

We therefore proceed to consider those issues.

III. STANDARDS APPLICABLE TO TERMINATION CASES

Tennessee Code Annotated section 36-1-113 “sets forth the grounds and procedures 

for terminating the parental rights of a biological parent.” In re Kaliyah S., 455 S.W.3d 

533, 546 (Tenn. 2015). Pursuant to the statute, the petitioner seeking termination of 

parental rights must prove two elements. Id. at 552. First, that party must prove the 

existence of at least one of the statutory grounds for termination set forth in Tennessee 

Code Annotated section 36-1-113(g). Id. The grounds are “cumulative and nonexclusive, 

so that listing conditions, acts or omissions in one ground does not prevent them from 

coming within another ground.” Tenn. Code Ann. § 36-1-113(g). Second, the petitioner 

must prove that termination of parental rights is in the best interest of the child, considering 

the best interest factors listed in Tennessee Code Annotated section 36-1-113(i). In re 

Kaliyah S., 455 S.W.3d at 552.

Because of the constitutional dimension of the parent’s rights at stake, the party 

seeking termination “must prove all the elements of their case by clear and convincing 

evidence.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). To be clear and 

convincing, the evidence must enable the finder of fact “to form a firm belief or conviction 

regarding the truth of the facts” sought to be established and eliminate “any serious or 

substantial doubt about the correctness” of the findings. Id. Due to this heightened burden 

of proof applicable in parental termination cases, we adapt our customary standard of 

review on appeal. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). Appellate 

courts review the trial court’s factual findings de novo in accordance with Tennessee Rule 

of Appellate Procedure 13(d), presuming each factual finding to be correct unless the 
- 18 -

evidence preponderates otherwise. In re Carrington H., 483 S.W.3d at 524. Then, we 

make our own determination regarding “whether the facts, either as found by the trial court 

or as supported by a preponderance of the evidence, amount to clear and convincing 

evidence of the elements necessary to terminate parental rights.” Id. (citing 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.” Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 

2009)).

IV. DISCUSSION

A. Due Process

On appeal, Father first argues that his due process rights were violated when the 

2010 dependency and neglect petition at the time of Saniiyah’s death, failed to include any 

allegation of abuse or neglect by him. Father argues that DCS “should have immediately 

respected and upheld the superior parental right of [Father] and sent the child to live within 

his custody, prior to placing him with a grandmother.” Father also suggests that his due 

process rights were violated in 2017 by “the court’s failure to give the child to [Father] 

before placing him into foster care.” He argues that the child was placed in DCS custody 

“without notice to [Father] and without the attempt to return his child to him,” when “there 

were still no allegations against [Father].”

Having carefully reviewed the record, we conclude that Father’s due process 

argument is waived because he failed to raise it in the trial court. “‘Generally, issues raised 

for the first time on appeal are waived.’” State v. Allen, 593 S.W.3d 145, 154 (Tenn. 2020)

(quoting State v. Rowland, 520 S.W.3d 542, 545 (Tenn. 2017)). This rule applies to due 

process arguments as well. See, e.g., In re C.L., No. E2013-02035-COA-R3-PT, 2014 WL 

2442970, at *7 (Tenn. Ct. App. May 28, 2014) (agreeing with DCS that “Mother may not 

raise her due process argument for the first time on appeal”); Lee v. Lee, 66 S.W.3d 837, 

847 (Tenn. Ct. App. 2001) (“There is nothing in the record to indicate that Husband raised 

an objection at the trial court level regarding his due process or equal protection rights. 

Therefore, these issues are waived.”); Landry v. Dood, 936 S.W.2d 635, 637 (Tenn. Ct. 

App. 1996) (“[A]ppellant has waived his right for this Court to consider a procedural due 

process claim. It is well settled that issues not presented at trial cannot be raised for the 

first time on appeal.”) As such, Father has waived consideration of this issue.

B. Grounds for Termination Against Father

1. Substantial Noncompliance

As explained above, the only remaining ground at issue against Father is substantial 

noncompliance with the permanency plan. Interestingly enough, counsel for DCS 
- 19 -

acknowledged during closing arguments that this was “the toughest ground” of all those 

alleged against Father.

“Tennessee law requires DCS to prepare a permanency plan for each child in foster 

care under its supervision.” In re K.F., No. M2008-01742-COA-R3-PT, 2009 WL

1025829, at *6 (Tenn. Ct. App. Apr. 14, 2009). The parental termination statute provides 

that one ground for termination exists if “[t]here has been substantial noncompliance by 

the parent . . . with the statement of responsibilities in a permanency plan[.]” Tenn. Code 

Ann. § 36-1-113(g)(2). The requirements of the statement must be “‘reasonable and related 

to remedying the conditions which necessitate foster care placement.’” In re Valentine, 79 

S.W.3d 539, 547 (Tenn. 2002) (quoting Tenn. Code Ann. § 37-2-403(a)(2)(C)). 

“Conditions necessitating foster care placement may include conditions related both to the 

child’s removal and to family reunification.” Id.

Not every failure to comply with a permanency plan will constitute grounds for 

termination of parental rights. In re Abigail F.K., No. E2012-00016-COA-R3-JV, 2012 

WL 4038526, at *14 (Tenn. Ct. App. Sept. 14, 2012). As the statute clearly reflects, 

“noncompliance is not enough to justify termination of parental rights; the noncompliance 

must be substantial.” In re Valentine, 79 S.W.3d at 548. “Determining whether a parent 

has substantially complied with a permanency plan involves more than merely counting up 

the tasks in the plan to determine whether a certain number have been completed[.]” In re 

Carrington H., 483 S.W.3d at 537. “In the context of the requirements of a permanency 

plan, the real worth and importance of 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. “Trivial, minor, or technical deviations from a permanency plan’s 

requirements will not be deemed to amount to substantial noncompliance.” In re M.J.B., 

140 S.W.3d 643, 656 (Tenn. Ct. App. 2004).

Although the terms have sometimes been used interchangeably, this Court has 

recently clarified that the question is not whether the parent was in “substantial 

compliance” with the permanency plan. In re Isaiah B., No. E2017-01699-COA-R3-PT, 

2018 WL 2113978, at *15 (Tenn. Ct. App. May 8, 2018). “Section 36-1-113(g)(2) does 

not require that a parent ‘substantially comply’ with a permanency plan.” Id. “Rather, the 

appropriate standard is whether there has been ‘substantial noncompliance.’” In re Jaylah 

W., 486 S.W.3d 537, 555 (Tenn. Ct. App. 2015) (emphasis added); see also In re Valentine, 

79 S.W.3d at 548 (“the noncompliance must be substantial”). 

We also recognize that when analyzing this ground, “[o]ur concern is with the 

parent’s efforts to comply with the plan, not the achievement of the plan’s desired 

outcomes.” In re Daniel B., Jr., No. E2019-01063-COA-R3-PT, 2020 WL 3955703, at *5 

(Tenn. Ct. App. July 10, 2020) (citing In re B.D., No. M2008-01174-COA-R3-PT, 2009 

WL 528922, at *8 (Tenn. Ct. App. Mar. 2, 2009)) (emphasis added). In other words, 

“‘outcome achievement is not the measure of compliance.’” In re Mya V., No. M2016-
- 20 -

02401-COA-R3-PT, 2017 WL 3209181, at *6 (Tenn. Ct. App. July 28, 2017) (quoting In 

re B.D., 2009 WL 528922, at *11). 

Keeping these principles in mind, we begin by examining the requirements set forth 

for Father in the “Statement of Responsibilities” in the permanency plan. The first plan 

was developed on or about April 5, 2017 – the same day when Father learned that the 

children were in foster care and attended the meeting that afternoon. The Statement of 

Responsibilities required Father to “obtain and maintain stable housing and income” and 

“show proof of stability with utilities and [] ensure the home is suitable for the youths.” 

The second plan, dated February 27, 2018, maintained this requirement. The third plan, 

developed on March 1, 2019, required Father to “maintain stable housing and income and 

[] provide proof of housing with a copy of his lease and [] show proof of income with a 

copy of his pay check stubs.” These requirements were reasonable and related to 

remedying the conditions necessitating foster placement.

We consider Father’s compliance with the requirement regarding housing first. 

Father lived in an apartment in St. Paul, Minnesota, when the first plan was developed. He 

had lived in Minnesota for around fifteen years. The first plan stated that Father had “come 

forward to seek out custody” of both boys and that he was “willing to move to Mississippi 

so that he could be around family and a support system.” Thus, it appears that DCS 

encouraged Father’s first move. Father testified that he moved from Minnesota to 

Mississippi in December 2017 to “get Justin out of foster care” and also care for his father. 

He was of the understanding that an ICPC study was being performed in Mississippi to 

determine whether his home would be a good placement for the children but said it was 

never completed during the seven months that he resided there. The wisdom of his second 

move was debatable. Father testified that he decided to move to Missouri in July 2018 

because his wife’s home had “extra room” for the children to live with him, and his father 

was in an agitated state due to Alzheimer’s disease, which led Father to worry about what 

might happen if the children lived there. He also believed that Missouri was a safer place 

to raise two young boys. He researched schools and contacted his potential employer. 

Father testified that he provided DCS with his address and information regarding where he 

would be located in Missouri. At the time of trial, Father had been living with his wife in 

a home in Missouri for one year.

During Mr. Foster’s testimony at trial, he was asked if Father had maintained stable 

housing as required by the permanency plan and responded, “To my knowledge, yes.” Mr. 

Foster said he knew that Father had stable housing at his father’s home in Mississippi. He 

noted that Father never provided him with a copy of any lease as required by the third 

permanency plan. However, Father testified that he had not had a lease in his name in 

either location. DCS was provided with a letter from Father’s father stating that Father 

was living with him, and DCS contacted him as well. Mr. Foster was admittedly unaware 

of whether Father’s home in Missouri was healthy and safe for the children because the 

ICPC process still had not been completed, even though Father had lived there for one year. 
- 21 -

Still, Mr. Foster acknowledged, “we believe that he is maintaining his employment and 

home in Missouri.”

During its oral ruling, the trial judge found that Father “made some efforts to provide 

a home from his proof, and he has a home in Missouri that by all accounts would be safe 

and appropriate.” Considering all of the evidence, we conclude that Father had met the 

requirement of obtaining and maintaining “stable housing” by the time of trial.6

Now, we turn to employment. The first two plans only required Father to obtain 

and maintain stable employment. The third plan, which was developed four months before 

trial began, added a requirement for him to “show proof of income with a copy of his pay

check stubs.” Father worked at Buffalo Wild Wings while in Mississippi, and he worked 

two jobs in Missouri. First, he worked at Buffalo Wild Wings and McDonald’s, then he 

worked at McDonald’s and Foot Locker. He was being trained for a managerial position 

at the time of trial. Mr. Foster acknowledged that Father “let the Department know” where 

he was working in Mississippi and told him about his places of employment in Missouri. 

Father sent Mr. Foster a picture of something printed from a cash register at McDonald’s 

showing its physical address in Missouri. Mr. Foster noted that Father never provided him 

with any actual pay stubs during the four months that this requirement was in place, but he 

also said he never asked Father to send him any. As previously noted, Mr. Foster stated, 

“we believe that he is maintaining his employment and home in Missouri.” Thus, we 

conclude that Father had met the requirement regarding maintaining stable income by the 

time of trial, and his failure to provide pay stubs does not rise to the level of substantial 

noncompliance. See In re Natascha B., No. M2018-00247-COA-R3-PT, 2018 WL 

5279079, at *6 (Tenn. Ct. App. Oct. 23, 2018) (“Under these circumstances, we conclude 

Father’s failure to provide DCS with his pay stubs was a ‘[t]rivial, minor, or technical’

deviation from the permanency plan’s requirements. See In re M.J.B., 140 S.W.3d at 656. 

As such, we assign little weight to Father’s lack of compliance with this requirement.”); In 

re Zane W., 2017 WL 2875924, at *11 (concluding that a mother’s failure to submit signin sheets from her recovery meetings as “verification” of her attendance did not rise to the 

level of substantial noncompliance when it was undisputed that she attended).

The first permanency plan also included a requirement that Father must inform DCS 

when he had moved to Mississippi so that DCS could “work on doing an ICPC.” At trial, 

Mr. Foster admitted that Father “did inform the Department of his move to Mississippi so 

the paperwork could be completed.” Thus, Father complied with this requirement. The 

second permanency plan deleted the requirement to notify DCS when Father moved to 

 

6

“Improvement toward compliance should be considered in a parent’s favor.” In re Valentine, 79 

S.W.3d at 549 (considering that the parent’s “poor record of visitation prior to the filing of the termination 

petition [stood] in marked contrast to her commendable efforts in the year prior to the hearing”); see also 

In re Aiden R., No. E2015-01799-COA-R3-PT, 2016 WL 3564313, at *9 (Tenn. Ct. App. June 23, 2016) 

(“While Father was slow in complying, by the time of the hearing, he had accomplished or begun work on 

the majority of the requirements.”).
- 22 -

Mississippi and replaced it with a requirement to “follow through with the ICPC process.” 

There was no testimony to suggest that Father failed to comply with this requirement. 

Father testified that the ICPC study was being conducted in Mississippi and that it was not 

completed despite the fact that he lived there seven months. He testified that the ICPC 

process was underway in Missouri and that someone had come to his house to do a home 

visit and home study with him and his wife. He had been residing in Missouri for one year, 

and from what he understood, the only outstanding issue was the receipt of the background 

check from Mississippi.

Mr. Foster testified that DCS helped Father complete the ICPC paperwork. He 

testified that DCS “continued to check in with the ICPC to make sure the process was going 

smooth[ly].” Mr. Foster said, “We didn’t receive anything from Mississippi.” Although 

he suggested that Father’s move to Missouri “disrupt[ed] the process” in the sense that it 

had to be restarted in Missouri, he did not testify as to any action by Father that would 

suggest that he did not cooperate with the ICPC process. As previously noted, Father asked 

to call a rebuttal witness by telephone to testify as to his compliance with the ICPC process 

in Missouri, but the trial judge denied his request. From the record before us, we conclude 

that Father met the requirement to “follow through” with the ICPC process. See In re 

Heaven J., No. W2016-00782-COA-R3-PT, 2016 WL 7421381, at *10 (Tenn. Ct. App. 

Dec. 22, 2016) (finding that a father complied with a permanency plan requirement 

regarding the ICPC where there was “no testimony that Father failed to do anything that 

was asked of him with regard to the ICPC process”).7 

 

7 We note that Father raises a separate argument on appeal regarding whether, as a parent, he should 

have been required to go through the ICPC process in the first place. He notes that in In re Courtney R., 

No. M2015-01024-COA-R3-JV, 2017 WL 1548241, at *5 (Tenn. Ct. App. Apr. 28, 2017), this Court stated 

that “Article III of the ICPC . . . qualifies the types of placements subject to the requirements of the ICPC” 

when it states, “‘No sending agency shall send, bring, or cause to be sent or brought into any other party 

state any child for placement in foster care or as a preliminary to a possible adoption unless the sending 

agency shall comply with each and every requirement set forth in this article[.]’” However, we also noted 

that “in the case of parents,” the ICPC Regulations lead to “confusion over the applicability of the ICPC.” 

Id. at *6. We noted “seeming inconsistences between the ICPC and the ICPC Regulations” and that there 

is, nationwide, “some dispute over whether the ICPC Regulations can serve to expand the scope of the 

ICPC beyond its plain terms.” Id. at *5 n.12; see also Josh Gupta-Kagan, The Strange Life of Stanley v. 

Illinois: A Case Study in Parent Representation and Law Reform, 41 N.Y.U. Rev. L. & Soc. Change 569, 

621 (2017) (noting the trend “in the most recent Interstate Compact cases, which have ruled against its 

application to parents”); Vivek S. Sankaran, Out of State and Out of Luck: The Treatment of Non-Custodial 

Parents Under the Interstate Compact on the Placement of Children, 25 Yale L. & Pol’y Rev. 63 (2006); 

see, e.g., In re S.R.C.-Q., 52 Kan.App.2d 454, 464 (2016) (“[W]e hold that the ICPC applies only to outof-state placements of children with foster care or as a preliminary to a possible adoption, not to out-ofstate placements with a parent.”); Matter of B.H., 398 Mont. 275, 301 n.13 (2020) (assuming without 

deciding that the ICPC applied but noting that “a growing number of states have rejected the validity of 

applying the ICPC [] to non-custodial parents”); In Interest of C.R.-A.A., 521 S.W.3d 893, 904 (Tex. Ct. 

App. 2017) (adopting the reasoning of the states that “have rejected application of the ICPC to interstate 

placement of a child with a natural parent” based on the plain language of Article III).

Ultimately, however, in In re Courtney R., this Court concluded that one particular ICPC regulation 
- 23 -

The next responsibility listed in the initial April 5, 2017 permanency plan was for 

Father to go to juvenile court with Mother and legitimate Justin. This requirement was 

reasonable and related to the conditions necessitating foster placement. On August 8, 2017, 

a DNA test report was issued confirming that Father is Justin’s biological father. Father 

testified that when the DNA test result came back, he went with Mother and presented the 

result to have his name added to the birth certificate. The summary from the foster care 

review board meeting on January 3, 2018, states that “[Father] a/w court to sign birth cert.” 

On May 3, 2018, the State of Mississippi issued an amended birth certificate for Justin, 

listing Father as his father and changing Justin’s last name to Father’s last name. The third 

permanency plan added a requirement for Father to provide “proof” of legitimation, and 

Mr. Foster acknowledged at trial that Father sent him a picture of the birth certificate via 

text message when he asked him to do so. Mr. Foster then asked Father to mail him a copy. 

During closing argument, counsel for DCS stated that “[Father] did produce a birth

certificate before trial, showing that he legitimated the child,” and DCS concedes in its 

brief that this requirement was met. We agree.

The next responsibility was for Father to participate in a parenting assessment and 

follow its recommendations. This requirement was reasonable and related to conditions 

necessitating foster placement. Both Father and Mr. Foster testified that Father completed 

this requirement. Mr. Foster said, “[Father] was willing to travel to Memphis to get that

parenting assessment completed[.]” Mr. Foster testified that DCS “did get a copy of that 

back from the actual assessment,” and there was no testimony that Father failed to comply 

with any recommendation of the assessment. DCS concedes, and we agree, that Father 

met this requirement.

The third permanency plan added a requirement for Father to maintain contact with 

DCS. This was a reasonable and related requirement, and Mr. Foster testified that Father 

also met this requirement. He acknowledged that Father remained cooperative throughout 

the process and that he could text message or call Father whenever he needed something. 

Mr. Foster agreed that Father was “always responsive” and provided copies of anything he 

requested.

The last requirement in the statement of the parents’ responsibilities was for Father 

 

exempted the father in that case from the ICPC, so the result was the same under either approach. 2017 

WL 1548241, at *6 & n.12. We also note a passing reference to the ICPC in In re Gabriella D., 531 S.W.3d 

662, 669 (Tenn. 2017), in which our supreme court stated that the ICPC “required DCS to obtain the 

approval of” a Georgia agency before placing the children with the mother in Georgia when she was 

residing with the maternal grandmother there. (citing Tenn. Code Ann. § 37-4-201 art. III(d)).

Based on the circumstances of this case, it is not necessary to delve into the issue of whether the 

permanency plan requirement regarding the ICPC was reasonable and related to the conditions necessitating 

foster placement. Father complied with the requirement, whether it was reasonable or not. We express no 

opinion as to whether he should have been required to comply with the ICPC in the first place.
- 24 -

to visit with the children “a minimum of two times per month, for at least four hours per 

month.” Inexplicably, this same requirement was included in the first and second

permanency plans, despite the fact that Father lived in Minnesota when the first plan was 

developed and in Mississippi when the second plan was developed. We conclude that it 

was not reasonable for DCS to require Father to visit in Memphis a minimum of two times 

per month while he lived in Minnesota. Therefore, any failure to comply with this 

requirement is “not relevant to a determination of whether there was substantial 

noncompliance” with the permanency plan. In re Valentine, 79 S.W.3d at 547-49 

(explaining that requirements that are not reasonable “are irrelevant, and substantial 

noncompliance with such terms is irrelevant”). We also note the scarcity of evidence 

regarding Father’s visitation while he remained in Minnesota. The initial permanency plan 

was developed in April 2017, and Father remained in Minnesota thereafter until he moved 

to Mississippi in December 2017. However, there was no testimony about the frequency 

of Father’s visitation during that particular eight-month time period. From our review of 

the voluminous record from the dependency and neglect case, it appears that Father did 

return to Tennessee for a hearing in the dependency and neglect case in May 2017. The

summary from a foster care review board hearing in July 2017 states that Father’s visitation 

had been “sporadic.” He returned to Tennessee again in August 2017 for another hearing 

in the dependency and neglect case. However, there is simply insufficient evidence in the 

record for us to conclude that Father was substantially noncompliant with the visitation 

requirement while living in Minnesota.

It was reasonable for DCS to require Father to visit twice per month, for a total of 

four hours, once he moved to Mississippi. Father testified that once he moved to 

Mississippi in December 2017, he visited with the children “regularly.” The foster care 

review board summary from January 3, 2018, states that Father had just moved to 

Mississippi and that he had already attended one visit since his move. Father testified that 

he would call the foster mother directly, and they set up visits “fairly often” at various 

locations. Justin testified that he visited with Father “quite a bit” when he lived in 

Mississippi. Another foster care review board summary states that he “was visiting 

regularly” and “often” while living in Mississippi.

Mr. Foster testified that when Father lived in Mississippi, his visits were “kind of 

sporadic but often.” He testified that by April 5, 2018, one year after the first permanency 

plan was developed, Father was “partial[ly] compliant” with the visitation requirement. He 

confirmed that Father coordinated visits directly with the foster parent, and when asked if 

Father visited Justin for four hours during two consecutive months, Mr. Foster did not 

know. He was aware that Father sometimes visited with the children in a church setting, 

where they attended the church service together and then stayed for dinner thereafter, but 

he was not sure if such visits lasted four hours. He said Father and Justin also got fast food

during some visits. Thus, we cannot say that Father was substantially noncompliant with 

the visitation requirement while living in Mississippi.
- 25 -

Father admitted that his visits “tapered” once he moved to Missouri. The final 

permanency plan only required him to visit four hours per month, not twice per month. 

This was reasonable. However, the testimony regarding Father’s visits while living in 

Missouri was not entirely clear. At trial in July 2019, Father was asked how many times 

he had visited with Justin on dates that were not court dates in the past year, and he said

four to five times. He described two visits with both of the boys at Mother’s workplace 

and mentioned taking Justin to Bartlett to get his haircut in the fall of 2018. At another 

point, though, Father appeared to concede that the “four to five” visits had occurred while 

he lived in Mississippi.

Father had not traveled from Missouri to Tennessee solely for the purpose of a visit 

when he was not scheduled for court. He had scheduled a visit on a Sunday in late 2018 

but was late getting on the road, and he did not ultimately get to visit because the foster 

mother had plans and could not adjust the timing of the visit. Father testified that in the 

first six months of 2019, he had not seen Justin on any days other than court dates because 

of the distance, the fact that he was traveling to Tennessee for so many court dates, and the 

difficulty in scheduling visits around school and work hours. Father said he tried to 

coordinate visits with his court dates so that he could keep his jobs. He said after court 

hearings concluded, he would talk to the foster mother about when he could set up a visit. 

However, it was not entirely clear from the testimony how often Father saw Justin on court 

dates or for how long. Many times, Father would return to Missouri after court. Father 

said he tried to coordinate visits with the foster mother on some dates when she already 

had plans. In June, Father had one visit with Justin after court for Father’s Day at a 

relative’s home. Justin described it as a “pool party.” They had another visit between the 

two trial dates. Father maintained contact with Justin when he could not visit and spoke to 

him once or twice per week.

Mr. Foster testified that he had observed Father talking with Justin at court 

appearances. However, during 2019, Mr. Foster was only aware of Father visiting with 

Justin, apart from at the courthouse, in June around Father’s Day and on the day between 

the trial dates. Mr. Foster said that DCS did not offer any type of assistance to Father with 

respect to visitation. He also said that Justin was not permitted to cross state lines to visit 

Father, and the only way he could have done so was if DCS did a “travel authorization” for 

visits, which it did not do in this case.

Based on this evidence, we conclude that Father was, overall, only partially 

compliant with the permanency plan’s visitation requirement. He visited regularly and 

often while living in Mississippi but hardly any while living in Missouri. From our review 

of the record, however, this was the only requirement in the Statement of Responsibilities

that Father had not fulfilled by the time of trial.

We note that on appeal, DCS argues that the permanency plan also required Father 

to pay child support and that he failed to do so. However, paying child support was never 
- 26 -

mentioned in the Statement of Responsibilities in any of the three permanency plans. 

According to the termination statute, this ground exists when “[t]here has been substantial 

noncompliance by the parent . . . with the statement of responsibilities in a permanency 

plan[.]” Tenn. Code Ann. § 36-1-113(g)(2) (emphasis added). Tennessee Code Annotated 

section 37-2-403(a)(2)(A) provides, “The permanency plan for any child in foster care shall 

include a statement of responsibilities between the parents, the agency and the caseworker 

of such agency. Such statements shall include the responsibilities of each party in specific 

terms and shall be reasonably related to the achievement of the goal specified[.]” Thus, 

for this ground, “[t]he statutory language directs us to look at the ‘statement of 

responsibilities’ for [the parent] in each of the [] permanency plans.” In re Askia K.B., No. 

W2010-02496-COA-R3-PT, 2011 WL 4634241, at *8 (Tenn. Ct. App. Oct. 7, 2011).

[T]he statement of responsibilities serves a substantive purpose. If the parent 

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

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

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

responsibilities.

In re Abigail F.K., 2012 WL 4038526, at *13. The “statement of responsibilities” must 

meet the “substantive requirement[]” of “includ[ing] the responsibilities of each party in 

specific terms.” In re Nakayia S., No. M2017-01694-COA-R3-PT, 2018 WL 4462651, at 

*3 (Tenn. Ct. App. Sept. 18, 2018). “A permanency plan’s failure to state a parent’s 

responsibilities in concrete terms precludes a finding that the parent failed to comply with 

those responsibilities.” Id.

This ground for termination “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.” In re Tamera W., No. W2015-01988-COA-R3-PT, 2016 WL 6610359, at *7 

n.8 (Tenn. Ct. App. Nov. 9, 2016) (quoting 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 in original). For instance, in Tamera W., we explained 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.” Id. That requirement was not 

“mandated as one of Father’s responsibilities.” Id.

Here, the permanency plans included a section that stated, “STATEMENT OF 

RESPONSIBILITIES: This section contains both the desired outcomes and action steps 

that together comprise the responsibilities of the parents and/or other responsible person(s) 

to achieve the permanency goals.” This Court has previously examined this same language 

in other plans and “deemed it sufficient to clearly communicate a parent’s responsibilities.”
- 27 -

8

 In re Veronica T., No. M2017-00726-COA-R3-PT, 2018 WL 1410909, at *8 (Tenn. Ct. 

App. Mar. 21, 2018). However, in Father’s permanency plans, there was no mention of 

paying child support in the designated “Statement of Responsibilities.” The plans included 

another section summarizing “the Parents’ Responsibilities,” but again, paying child 

support was never mentioned as a responsibility.

The permanency plans did include a small section on child support ten pages away 

from the section entitled “Statement of Responsibilities.” It stated, “List each person who 

will provide child support, along with the amount being paid and what form of support (i.e. 

good-faith payment, clothes, gifts, etc.)”. It then stated, “The father, Timothy S[.] will 

provide, child support for Justin A[.] in the form of good-faith payments, clothes, gifts, 

etc.” Again, a permanency plan “should clearly communicate to the parent: this is what 

you must do to regain custody of your child. That is the purpose of the parent’s statement 

of responsibilities.” In re Abigail F.K., 2012 WL 4038526, at *13. “[I]t is axiomatic that 

noncompliance with a permanency plan’s statement of responsibilities requires that the 

alleged noncompliance be based on a requirement in the statement of responsibilities.” In 

re Nakayia S., 2018 WL 4462651, at *4 (concluding that a verbal instruction was 

insufficient). By including a designated “Statement of Responsibilities” and specifying 

that those steps constituted “the responsibilities of the parents . . . to achieve the 

permanency goals,” DCS did not clearly communicate to Father that he must also pay child 

support in order to gain custody of the child. See In re Askia K.B., 2011 WL 4634241, at 

*8-9 (concluding that a permanency plan section on visitation allowed for visits but that it 

did not clearly state that visiting was a “responsibility” of the parent under the plan). Thus, 

in analyzing this ground, we will not consider Father’s payment of child support when 

considering whether he was in substantial noncompliance “with the statement of 

responsibilities in a permanency plan[.]” Tenn. Code Ann. § 36-1-113(g)(2).

9

 

8

“[T]his Court has admonished DCS on several occasions for its failure to clearly outline the 

parents’ statement of responsibilities in a section of the permanency plan.” In re Navada N., 498 S.W.3d 

579, 603 (Tenn. Ct. App. 2016); see, e.g., In re Abigail F.K., 2012 WL 4038526, at *13 (“It is difficult for 

the Court to find that Mother failed to substantially comply with the plan’s statement of responsibilities if 

the plan does not contain one.”) However, we have also held that a separately labeled “Statement of 

Responsibilities” section is “not necessarily fatal,” “provided that the parent’s responsibilities are clear 

from the body of the permanency plan.” In re Benjamin A., No. E2015-00577-COA-R3-PT, 2016 WL 

944469, at *17 (Tenn. Ct. App. Mar. 14, 2016). Here, however, the plans did contain a “Statement of 

Responsibilities” section.

9 We note that during trial, Mr. Foster was asked about whether the issue of child support was 

addressed in the “Statement of Responsibilities” section. The following exchange occurred:

Q. Okay. And just to be clear, on these permanency plans, does it tell him he needs to 

provide some sort of financial support for his son and visit his son in the actions steps, or 

is that only in the visitation section?

A. It’s in the action steps that the father would provide support and visit with the Youth a 

minimum of four hours a month. And it’s also placed in a small section on the permanency 

plan that parents will provide support to the Youth in the form of good faith payments, gifts 

and et cetera.
- 28 -

In summary, we conclude that Father met the following requirements of the 

Statement of Responsibilities: obtaining and maintaining stable housing and employment, 

notifying DCS when he moved to Mississippi, following through with the ICPC process, 

going to juvenile court to legitimate Justin, completing a parenting assessment, and 

maintaining contact with DCS. He only partially met the visitation requirement. Overall, 

considering Father’s efforts, the record does not clearly and convincingly establish that his 

noncompliance with the permanency plans was substantial. See, e.g., In re Valentine, 79 

S.W.3d at 549 (reversing this ground where the parent had stable housing, attended

parenting classes, and partially complied with the visitation requirement, but did not 

comply with requirements of attending individual counseling and undergoing a 

neuropsychiatric evaluation). We reverse the trial court’s finding regarding this ground for 

termination. The best interest analysis is pretermitted as to Father. Because this was the 

only remaining ground for termination of his parental rights, we reverse the termination of 

Father’s parental rights. 

C. Grounds for Termination Against Mother

There are three grounds for termination at issue with respect to Mother: severe child 

abuse, sentence for severe child abuse, and failure to manifest a willingness and ability to 

assume custody. We address each in turn.

1. Severe Child Abuse

When the termination petition was filed, Tennessee Code Annotated section 36-1-

113(g)(4) provided that one ground for termination of parental rights existed if:

The parent [] 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[.]

Tenn. Code Ann. § 36-1-113(g)(4) (2017).10 On September 6, 2011, the circuit court of 

Shelby County entered an order adjudicating the children dependent and neglected and 

finding that “[Mother’s] failure to protect Saniiyah rose to the ‘knowing’ requirement to 

establish severe abuse as to Saniiyah as set out in Tenn. Code Ann. § 37-1-102(b)(23)(A).” 

 

From our careful review of the three permanency plans, child support was only mentioned in the “small 

section” referenced by Mr. Foster and not in the action steps in the Statement of Responsibilities section.

10 The statute has since been amended to provide that this ground exists if the parent has been found 

to have committed severe child abuse “against any child.” Tenn. Code Ann. § 36-1-113(g)(4) (Supp. 2020). 
- 29 -

As we noted in a previous appeal filed by Calvin, “Mother did not appeal the judgment of 

the circuit court.” In re Jaylen J., No. W2011-02347-COA-R3-JV, 2012 WL 3574685, at 

*2 (Tenn. Ct. App. Aug. 21, 2012). Additionally, we note that Saniiyah was the half-sister 

of Justin and Jaylan.

“A finding of severe abuse in dependency and neglect proceedings has serious 

ramifications not ordinarily at stake in cases of less severe conduct, since a finding of 

severe abuse can serve as a ground for termination of parental rights.” In re Kaliyah S., 455 

S.W.3d at 537 n.5 (citing In re Samaria S., 347 S.W.3d 188, 201 (Tenn. Ct. App. 2011)). 

The most serious consequence of a finding that a parent has committed 

severe child abuse is that such a finding, in and of itself, constitutes a ground 

for termination of parental rights. . . . The ground itself is proved by a prior 

court order finding severe child abuse, and the issue of whether abuse 

occurred is not re-litigated at the termination hearing.

In re Samaria S., 347 S.W.3d at 201 (quoting DCS v. M.S., No. M2003-01670-COA-R3-

CV, 2005 WL 549141, at *10 (Tenn. Ct. App. Mar. 8, 2005)). In a termination of parental 

rights proceeding, the doctrine of res judicata prevents a parent from re-litigating whether 

he or she committed severe child abuse when such a finding has been made in a previous 

dependency and neglect action. In re I.E.A., 511 S.W.3d 507, 517 (Tenn. Ct. App. 2016); 

In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012). Upon a finding of severe 

abuse, “one ground for termination of the parent’s parental rights is effectively 

established.” In re Samaria S., 347 S.W.3d at 201. “The plain language of the statute does

not require that the prior order have any specific temporal proximity or nexus to the current 

child at issue or the proceedings currently being adjudicated.” In re I.E.A., 511 S.W.3d at 

516. As such, the final order of the circuit court finding severe abuse by Mother against 

the children’s half-sibling is sufficient proof of this ground, and the trial court did not err 

in finding that the ground of severe abuse was proven by clear and convincing evidence. 

See In re I.E.A., 511 S.W.3d at 517; In re Eric J.P., No. M2012-02082-COA-R3-PT, 2013 

WL 1788547, at *4 (Tenn. Ct. App. Apr. 24, 2013) (“[DCS] proved the ground of severe 

abuse by proving that Mother and Father had been found to have committed severe abuse 

of the Children’s half-sibling[.] No other evidence was required.”)

2. Sentence for Severe Child Abuse

When the termination petition was filed, the relevant statute provided that another 

ground for termination existed if:

The parent [] has been sentenced to more than two (2) years’ imprisonment 

for conduct against the child who is the subject of the petition, or for conduct 

against any sibling or half-sibling of the child or any other child residing 

temporarily or permanently in the home of such parent [], that has been found 
- 30 -

under any prior order of a court or that is found by the court hearing the 

petition to be severe child abuse, as defined in § 37-1-102. Unless otherwise 

stated, for purposes of this subdivision (g)(5), “sentenced” shall not be 

construed to mean that the parent [] must have actually served more than two 

(2) years in confinement, but shall only be construed to mean that the court 

had imposed a sentence of two (2) or more years upon the parent[.]

Tenn. Code Ann. § 36-1-113(g)(5) (2017).

11

 “‘[S]ome court order, either by a prior court 

or the court hearing the termination petition, must find that the conduct underlying the 

conviction constituted severe child abuse as defined by section 37-1-102.’” In re C.S., No. 

E2019-01657-COA-R3-PT, 2020 WL 2066247, at *6 (Tenn. Ct. App. Apr. 29, 2020)

(quoting In re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097, at *9 

(Tenn. Ct. App. July 7, 2011)).

Mother received a sentence of ten years for conduct against Saniiyah that was found 

under a prior court order to be severe child abuse. As the statute makes clear, the fact that 

Mother has not served her sentence in confinement does not preclude application of this 

ground. See, e.g., In re Shyanne H., No. M2019-02127-COA-R3-PT, 2020 WL 3481695, 

at *8 (Tenn. Ct. App. June 25, 2020) (“The fact that Father did not serve any jail time does 

not preclude termination of his parental rights on this ground.”); In re Adrian M.-M., No. 

W2019-00931-COA-R3-PT, 2019 WL 5595846, at *11 (Tenn. Ct. App. Oct. 30, 2019)

(affirming where a mother pled guilty to attempted aggravated child abuse and received 

eight years of supervised probation). This ground was also sufficiently proven.

3. Failure to Manifest an Ability and Willingness to Assume Custody

We now turn to the final ground alleged against Mother and at issue on appeal. It 

applies when:

A parent [] has failed to manifest, by act or omission, an ability and 

willingness to personally assume legal and physical custody or financial 

responsibility of the child, and placing the child in the person’s legal and 

physical custody would pose a risk of substantial harm to the physical or 

psychological welfare of the child[.]

Tenn. Code Ann. § 36-1-113(g)(14). The first part of this statute “places a conjunctive 

obligation on a parent or guardian to manifest both an ability and willingness to personally 

assume legal and physical custody or financial responsibility for the child.” In re Neveah 

M., No. M2019-00313-SC-R11-PT, --- S.W.3d ----, 2020 WL 7258044, at *14 (Tenn. Dec. 

10, 2020). As a result, “[i]f a person seeking to terminate parental rights proves by clear 

 

11 This subsection has also been amended, and it now applies to sentences for conduct against “a 

child.” Tenn. Code Ann. § 36-1-113(g)(5) (Supp. 2020). 
- 31 -

and convincing proof that a parent or guardian has failed to manifest either ability or 

willingness, then the first prong of the statute is satisfied.” Id.

When analyzing a parent’s ability to assume custody, we focus on his or her 

“lifestyle and circumstances.” In re Jonathan M., No. E2018-00484-COA-R3-PT, 2018 

WL 5310750, at *5 (Tenn. Ct. App. Oct. 26, 2018). In assessing a parent’s willingness, 

“‘we look for more than mere words[.]’” In re Jaxx M., No. E2018-01041-COA-R3-PT, 

2019 WL 1753054, at *9 (Tenn. Ct. App. Apr. 17, 2019) (quoting In re Cynthia P., No. 

E2018-01937-COA-R3-PT, 2019 WL 1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019)). A 

parent’s lack of effort can undercut his or her claim of willingness. Id.; see, e.g., In re 

Antonio J., No. M2019-00255-COA-R3-PT, 2019 WL 6312951, at *9 (Tenn. Ct. App. 

Nov. 25, 2019) (recognizing that a mother’s “words” indicated willingness but her actions 

portrayed “unwillingness to make the effort required for reunification”). “Parents must 

have demonstrated their willingness by attempting to overcome the obstacles that prevent 

them from assuming custody or financial responsibility for the child.” In re Jonathan M., 

2018 WL 5310750, at *5. 

Since the death of Saniiyah in 2010, Mother had only been allowed supervised 

visitation with Justin and Jaylan. However, she had maintained visitation with the children 

since that time, first while they were in the care of the maternal grandmother and then while 

they were in foster care. When the children were dropped off at her doorstep in early 

December 2016, Mother took the boys into her home and contacted DCS. Someone came 

to Mother’s home, took photographs, asked questions, and informed Mother that she 

needed to obtain paperwork from juvenile court before she could enroll them in school. In 

January 2017, Mother filed a pro se petition seeking modification of the existing order 

granting permanent custody to the maternal grandmother. Her petition stated that she was 

now stable and that she desired to have the children legally in her care and custody. 

However, in March 2017, the juvenile court magistrate removed the children from 

Mother’s home on its own motion.

In April 2017, the first permanency plan was developed for Mother, which required 

her to go to court with Father to legitimate Justin, maintain stable housing and income, 

complete a parenting assessment at her own expense, and visit the children. However, it 

also noted that DCS had been relieved of making efforts to assist Mother and so she would 

be responsible for completing these tasks without any assistance. From our review of the 

record, Mother largely met the aforementioned responsibilities. She went with Father to 

legitimate Justin. When Mother testified at trial in September 2019, she had been 

employed at Taco Bell for three years and was working full-time as a shift manager making 

$9.25 per hour. She was halfway through an eight-week training period for promotion to 

assistant manager. She had told DCS where she was working and said they never asked 

for proof. (From our review of the permanency plans, only the third one required Mother 

to produce pay stubs and a lease.) For the past two and one-half years, Mother had lived 

in a two-bedroom house with a lease in her own name. Mother received food stamps but 
- 32 -

paid rent and household expenses and had her own vehicle. She had never been late on her 

rent payment. She had given DCS her address but did not recall being asked for a copy of 

her lease. Mr. Foster agreed that Mother provided him with her address and informed him 

when she moved once. He had not attempted a home visit and was not sure whether he 

ever asked Mother for a copy of her lease. Mother had not sent any child support for Justin 

and Jaylan but had sent occasional gifts for them.

The only person residing with Mother in her two-bedroom house was her two-yearold son. Mother’s seven-year-old daughter remained with the grandparent who took 

physical custody at her birth while Mother was incarcerated. However, Mother retained 

legal custody and had visits with her every other weekend. She was still serving her tenyear sentence on probation, but she had not had any violations of probation. As terms of 

her probation, Mother had completed community service, moral recognition therapy, anger 

management, and two rounds of parenting classes. Mother testified that she visited Justin 

and Jaylan one to three times per month depending on the foster mother’s schedule. She 

talked to the children three to four times per week and communicated with them on social 

media almost every day. She testified that she wanted the boys to “go home with family,” 

and if not with her then with Father. Mr. Foster confirmed that Mother “has stated she 

wants custody.”

Under these circumstances, Mother has manifested a willingness to assume legal 

and physical custody of the children. Aside from her stated willingness, her actions have 

also demonstrated her willingness in that she filed a pro se petition to regain custody of the 

children and mostly complied with the requirements of the permanency plan. As for 

ability, again, we must consider Mother’s lifestyle and circumstances.12 She has stable 

 

12 To the extent that it impacts Mother’s “ability” to assume custody, we note Mr. Foster’s trial 

testimony that even if Mother had completed everything possible on her permanency plan, DCS would not

be able to send the children to live with her. Regarding the disposition of children in dependency and 

neglect cases, Tennessee Code Annotated section 37-1-130(c) states:

No child who has been found to be a victim of severe child abuse shall be returned to the 

custody or residence of any person who engaged in or knowingly failed to protect the child 

from the brutality or abuse unless the court finds on the basis of clear and convincing 

evidence that the child will be provided a safe home free from further such brutality and 

abuse.

(emphasis added). However, Justin and Jaylan were not found to be victims of severe child abuse. Saniiyah 

was. In the context of dependency and neglect proceedings, “there is no statutory authority that would 

allow a child who was not subjected to conduct constituting ‘severe child abuse’ to be deemed a severely 

abused child based on abuse perpetrated against a sibling.” In re Nirvanna S., No. E2010-01358-COA-R3-

JV, 2011 WL 684196, at *9 (Tenn. Ct. App. Feb. 28, 2011). Thus, in In re Samuel D., 536 S.W.3d 447, 

457 (Tenn. Ct. App. 2016), we held that the trial court erred in applying section 37-1-130(c) and its clear 

and convincing evidence “threshold” to the return of two half-siblings when they were not themselves 

directly subjected to abuse. 

When there is a finding of severe child abuse, DCS is relieved of the obligation to use reasonable 
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housing and employment, has complied with the terms of her probation, and has another 

child living with her apparently without incident. There was no evidence of violence, 

substance abuse, or criminal activity in Mother’s current home. As such, we simply cannot 

find by clear and convincing evidence that Mother has failed to manifest an ability to 

personally assume legal and physical custody of the children. See In re Kyland F., No. 

E2019-01058-COA-R3-PT, 2020 WL 957647, at *6 (Tenn. Ct. App. Feb. 27, 2020)

(affirming the ground of severe child abuse but reversing this ground for termination where 

the parents took steps to complete the tasks required of them once they were released from 

incarceration). We reverse this ground for termination of Mother’s parental rights. 

C. Best Interest

If at least one ground for termination has been proven by sufficient evidence, “the 

court next determines whether the proof amounts to clear and convincing evidence that 

terminating parental rights is [in] the best interests of the child.” In re Gabriella D., 531 

S.W.3d at 681 (citing In re Carrington H., 483 S.W.3d at 523). Tennessee’s termination 

statute recognizes that termination of parental rights is not always in the child’s best 

interest. In re Brianna T., No. E2017-01130-COA-R3-PT, 2017 WL 6550852, at *5 (Tenn. 

Ct. App. Dec. 22, 2017) (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). 

Tennessee Code Annotated section 36-1-113(i) lists nine statutory factors for 

consideration. As our supreme court explained in In re Gabriella D., 531 S.W.3d at 682: 

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 

 

efforts toward reunification, “it is more difficult for the parent to regain custody” of that child, and one 

ground for termination of parental rights is effectively established. In re Samaria S., 347 S.W.3d at 201. 

However, this statute does not prevent Justin and Jaylan from ever being returned to Mother. We note that 

the juvenile court relied on section 37-1-130(c) during the dependency and neglect proceeding, but the de 

novo appeal to circuit court was still pending at the time of the termination trial. 
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case ultimately result in the court ascribing more weight—even outcome 

determinative weight—to a particular statutory factor, the court must 

consider all of the statutory factors, as well as any other relevant proof any 

party offers.

We must bear in mind that the child’s best interest is viewed from the child’s perspective

rather than the parent’s perspective. Id. at 681. “‘[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.’” Id. (quoting Tenn. Code Ann. § 36-1-101(d)).

“Because denial of a petition to terminate parental rights does not in and of itself 

affect the custody of a child, the court’s task is not to choose between two home situations. 

Instead, the inquiry should address itself to the impact on the child of a decision that has 

the legal effect of reducing the parent to the role of a complete stranger.” In re Aiden R., 

2016 WL 3564313, at *10 (quoting In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 

WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006)) (internal quotation omitted). 

In analyzing whether it is in the best interest of Justin and Jaylan to terminate 

Mother’s parental rights, we will address each of the statutory factors for consideration. 

The first is “[w]hether the parent [] 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[.]” See Tenn. Code Ann. § 36-1-113(i)(1). The trial court found that this factor 

weighed against Mother because she “has not completed any tasks on the permanency plans 

and [she] still denies her role in her daughter’s death.” The record simply does not support 

this finding regarding the permanency plan. Mother legitimated Justin, had stable housing 

and employment, and consistently visited the children. As terms of her probation, she had 

completed community service, moral recognition therapy, anger management, and 

parenting classes. Although she maintained that she did not know Calvin was abusing 

Saniiyah, she said if she could change anything, she would take Saniiyah to the doctor and 

recognized that if she had only done so, she might still be alive.

By the time of trial in 2019, nine years had passed since Saniiyah’s death. Justin 

and Jaylan were ages four and one when she died, and they were ages thirteen and ten at 

the time of trial. Calvin was serving a life sentence, and Mother lived alone with the 

exception of her two-year-old son. She also retained legal custody of her seven-year-old 

daughter. There was nothing in the record to suggest that DCS had any concerns about 

Mother’s home not being safe for her two-year-old son or her seven-year-old daughter. 

There was no testimony about any violence, criminal behavior, or substance abuse in 

Mother’s home. Thus, from the evidence presented, it appears to this Court that Mother 

has adjusted her circumstances so as to make her home safe for children. 

The second factor to consider is “[w]hether the parent [] has failed to effect a lasting 

adjustment after reasonable efforts by available social services agencies for such duration 
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of time that lasting adjustment does not reasonably appear possible.” See Tenn. Code Ann. 

§ 36-1-113(i)(2). Mother made these adjustments to her circumstances even though DCS 

was relieved of making reasonable efforts to assist her. A lasting adjustment does appear 

possible.

The third factor is “[w]hether the parent [] has maintained regular visitation or other 

contact with the child.” See Tenn. Code Ann. § 36-1-113(i)(3). The trial court found that 

Mother “has maintained regular visitation with the children” and that this factor weighed 

against termination of her parental rights. We agree. Mother visits the children in person 

one to three times per month as permitted by the foster parent and talks to them three to 

four times per week. According to Justin, they communicate “[a]lmost every day” through 

social media. Justin testified that it would bother him if Mother’s parental rights were 

terminated and she was not allowed to contact him anymore. He said he would prefer to 

live with Mother if he could. Thus, this factor weighs against termination.

The fourth factor is “[w]hether a meaningful relationship has otherwise been 

established between the parent [] and the child.” See Tenn. Code Ann. § 36-1-113(i)(4). 

The trial court found that “a meaningful relationship has been established between 

[Mother] and her children” and that this factor also weighed against termination of her 

parental rights. Again, for the reasons discussed with respect to the previous factor, we 

agree with the trial court’s conclusion.

The fifth factor to consider is “[t]he effect a change of caretakers and physical 

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

condition.” See Tenn. Code Ann. § 36-1-113(i)(5). With only a single sentence of 

explanation, the trial court found that this factor weighed in favor of terminating Mother’s 

parental rights because “[t]he children have bonded strongly to the foster parents and a 

change in placement would adversely affect them.” We have no doubt that the children 

had bonded with the foster mother during the two years that they resided with her prior to 

trial. Still, Justin testified that his first preference would be to live with Mother (and his 

two-year-old half-brother), and his second preference would be to live with Father. As 

such, at least for Justin, the evidence does not support a finding that his emotional or 

psychological condition would be hurt by a change of caretakers. There was no contrary 

testimony for Jaylan or any proof as to any medical condition of the children. Therefore, 

we conclude that this factor also weighs in Mother’s favor.

The sixth factor is “[w]hether the parent [], or other person residing with the parent 

[], has shown brutality, physical, sexual, emotional or psychological abuse, or neglect 

toward the child, or another child or adult in the family or household[.]” See Tenn. Code 

Ann. § 36-1-113(i)(6). This factor weighs against Mother. The 2011 order of the circuit 

court found that Mother never sought medical attention for Saniiyah despite witnessing 

signs of serious distress and severe injury for hours. It found that Mother’s failure to 

protect Saniiyah rose to the “knowing” requirement to establish severe abuse by Mother. 
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We also note, however, that the juvenile court found no proof of direct physical harm to 

Justin or Jaylan. In addition, we recognize that Calvin is serving a life sentence for the 

murder, and there was no evidence that Mother had resided with or engaged in a 

relationship with anyone else since that time who might pose a danger to the children. 

Likewise, the record contains no evidence that Mother herself had committed any acts of 

violence that would endanger the child currently living with her. So, although this factor 

weighs against Mother, we give it somewhat less weight in light of the nine years that had 

passed and Mother’s current circumstances. See, e.g., In re Gabriella D., 531 S.W.3d at 

684 (noting a history of severe abuse when considering this factor but pointing out that 

“[b]y the time of this trial [] more than three years had passed since Mother engaged in the 

reprehensible conduct that cost her the custody of these children”). 

The seventh factor to consider is “[w]hether the physical environment of the 

parent’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 [] consistently unable to care for the child in a safe and 

stable manner[.]” See Tenn. Code Ann. § 36-1-113(i)(7). There was no evidence to 

suggest that Mother’s home was not healthy and safe. She had completed numerous terms 

of her probation and had no violations, suggesting there is no criminal activity in the home. 

There was no evidence of alcohol or substance use by Mother at any point in the history of 

this case. Therefore, this factor weighs in Mother’s favor.

Factor eight is “[w]hether the parent’s [] mental and/or emotional status would be 

detrimental to the child or prevent the parent [] from effectively providing safe and stable 

care and supervision for the child[.]” See Tenn. Code Ann. § 36-1-113(g)(8). The trial 

court noted that no evidence was presented that Mother’s mental and emotional status 

would be detrimental to the children or prevent her from providing safe and stable care and 

supervision for them. We agree.

The ninth and final factor is “[w]hether the parent [] has paid child support 

consistent with the child support guidelines promulgated by the department pursuant to § 

36-5-101.” See Tenn. Code Ann. § 36-1-113(g)(9). The trial court found that this factor 

weighed in favor of termination because Mother had not paid consistent child support but 

only provided minimal gifts. We agree with this assessment.

Ultimately, “[t]he dispositive issue in this appeal is a question of law: whether the 

facts presented amount to clear and convincing evidence that termination of Mother’s 

parental rights is in the best interests of the children.” In re Gabriella D., 531 S.W.3d at

680. Considering all of the statutory factors, we do not find clear and convincing evidence 

that termination of Mother’s parental rights is in the best interest of Justin and Jaylan. 

Given the abuse of Saniiyah in the past, this is not an easy decision. However, under the 

unique facts of this case, we do not believe that this single factor should be determinative. 

See In re Gabriella D., 531 S.W.3d at 685 (affirming a finding of severe child abuse but 
- 37 -

holding that “the Court of Appeals erroneously placed outcome-determinative weight on 

statutory factor six, and more specifically, on the proof regarding Mother’s severe neglect 

of the children in the past,” while failing to recognize her many positive achievements and 

the fact that almost all other factors weighed against termination); see also In re Allyson 

P., No. E2019-01606-COA-R3-PT, 2020 WL 3317318, at *14 (Tenn. Ct. App. June 17, 

2020) (affirming the ground of severe abuse but concluding that the facts presented “do 

not satisfy the heightened standard of proof to allow us to conclude that termination of 

Mother’s parental rights is in Allyson’s best interest”). As our supreme court said in 

Gabriella D., 531 S.W.3d at 686:

By so holding, we do not at all condone or excuse the conduct that 

resulted in the removal of these children from Mother’s custody. . . . And we 

certainly do not minimize the genuine concern and affection Foster Parents 

have for these children. Our decision instead results from an objective and 

comprehensive review of the record to determine whether the facts presented 

satisfy the constitutionally mandated heightened standard of proof. This 

heightened standard is designed specifically to reduce the risk of erroneous 

decisions depriving parents of their precious and fundamental rights to the 

care and custody of children. In this case, this heightened standard of proof 

was not satisfied. We recognize that the result in this case is unusual, but 

this is an unusual case. Too often parents fail to rehabilitate themselves and 

make the changes needed to avoid losing their parental rights forever. The 

proof in this record establishes that Mother has been able to make the 

necessary adjustments. This is precisely how the system is designed to 

function. Should Mother revert to the reprehensible conduct that started the 

process that culminates with this decision, DCS will have the option of filing 

a termination petition, as the circuit court’s finding of severe abuse has not 

been disturbed on appeal. Tenn. Code Ann. § 36-1-113(g)(4).

V. CONCLUSION

For the aforementioned reasons, we reverse the termination of parental rights and 

remand for further proceedings. Costs of this appeal are taxed to the State of Tennessee, 

for which execution may issue if necessary. 

_________________________________

CARMA DENNIS MCGEE, JUDGE