The opinion
12/17/2025
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 3, 2025
IN RE MAISYNN Y.
Appeal from the Juvenile Court for Knox County
No. 307303 Timothy E. Irwin, Judge
___________________________________
No. E2025-00486-COA-R3-PT
___________________________________
This appeal involves a petition to terminate the parental rights of a mother to her daughter.
The juvenile court found that the grounds of abandonment by an incarcerated parent, severe
child abuse, and failure to manifest an ability and willingness to assume custody were
proven by clear and convincing evidence. The juvenile court also determined that
termination of parental rights was in the best interest of the child. The mother appeals. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and JEFFREY USMAN, JJ., joined.
Christine L. Dummer, Knoxville, Tennessee, for the appellant, Morgan Y.
Jonathan Skrmetti, Attorney General and Reporter, and Clifton Wade Barnett, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION1
I. FACTS & PROCEDURAL HISTORY
This appeal involves the termination of the parental rights of Morgan Y. (“Mother”)
to her daughter, Maisynn Y. Maisynn was born in late January 2024. The same day, the
Tennessee Department of Children’s Services (“DCS”) received a referral indicating that
Maisynn was a victim of in utero drug exposure. Maisynn was released from the hospital
1
In cases involving minor children, it is the policy of this Court to redact the parties’ last names to
protect their identities.
on February 2, 2024, and immediately placed with her maternal grandparents. DCS filed
a “Petition for Adjudication of Dependency & Neglect” on February 16, 2024. The petition
asserted that Maisynn was dependent and neglected as to Mother and was also a victim of
severe child abuse based on Mother’s drug use while pregnant. The petition stated that
Mother had met with a DCS worker and admitted to having used drugs several times
throughout her pregnancy. According to the petition, Mother also admitted that she had
been aware of the dangers such drug use posed to Maisynn’s health. The juvenile court
subsequently entered an order bringing Maisynn within its protective jurisdiction and
permitting Mother only “strictly supervised visitation with the minor child.” The order
specified that these visits were to be supervised by “the custodians or by [DCS].”
Unfortunately, Mother submitted to a drug screen on March 8, 2024, and tested positive
for fentanyl. As a result, her visitation was suspended. Mother’s visitation was later
restored. However, she was informed that she could only participate in visits if she could
pass a drug screen immediately prior to a visit taking place. She was also informed that
her own mother would no longer be eligible to supervise visitation. A guardian ad litem
was later appointed to represent Maisynn’s interests throughout the proceedings.
Mother then began to participate in an intensive outpatient program at a treatment
facility called “Cornerstone.” On April 16, 2024, Mother appeared at the Cornerstone
facility for a scheduled drug test. However, she had Maisynn in her physical custody in
violation of the juvenile court’s order. She proceeded to test positive for
methamphetamine, amphetamine, and buprenorphine. The same day, the juvenile court
entered an order removing Maisynn from her grandparents’ custody and placing her in
DCS custody. Mother was ordered to pay $40 per month in child support. A hearing was
held on April 23, 2024, during which Mother attempted to explain her failed drug test. She
claimed that, as she had been preparing to provide a urine sample, she dropped her sample
cup into the facility toilet. The facility workers then “fished the cup out of the toilet” and
informed her that she had tested positive for drugs. She denied having used drugs.
However, she admitted that she knew she had been violating the juvenile court’s order
when she took Maisynn to the Cornerstone facility.
Following the April 23, 2024 hearing, a DCS representative met with Mother and
explained that she was entitled to supervised visitation with Maisynn. She also informed
Mother that, as she was on fentanyl protocol, she would be required to pass a drug screen
immediately prior to any visit. Subsequently, DCS scheduled several visits for Mother.
However, none of these visits took place because Mother either failed the required drug
screen or simply failed to appear. Mother was arrested in Knoxville on June 11, 2024. She
was charged with possession of methamphetamine with intent to manufacture, deliver, or
sell. She was later convicted of this offense and received a sentence of “8 years [at] 30%
suspended state probation” in addition to a fine. At some point, Mother was extradited to
the state of Ohio based on an outstanding warrant for the possession of drugs. Mother was
“bonded out” of the Ohio facility on August 7, 2024. She returned to Knox County shortly
thereafter.
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Meanwhile, the juvenile court conducted a hearing on August 6, 2024, regarding the
dependency and neglect petition. Mother participated in this hearing virtually via Zoom
while still incarcerated in Ohio. Subsequently, the juvenile court entered a written order,
in which it determined that Mother had engaged in drug use after learning she was pregnant
and knew or should have known of the harmful effects drug use would have on Maisynn’s
health. As a result, the juvenile court determined that Maisynn was dependent and
neglected as to Mother and was a victim of severe child abuse. See Tenn. Code Ann. § 37-
1-102(b)(27). DCS filed a petition to terminate Mother’s parental rights on September 10,
2024. The petition alleged that the following grounds for termination existed: (1)
abandonment by incarcerated parent through wanton disregard, (2) severe child abuse, and
(3) failure to manifest an ability and willingness to assume custody.2 DCS also asserted
that termination was in Maisynn’s best interest.
Following her release, Mother appears to have missed a DCS scheduled drug screen.
She appeared for another screen on October 16, 2024, and tested positive for fentanyl.
However, Mother was able to pass three drug screens administered during December 2024.
During this time, she also participated in visitation with Maisynn. However, Mother again
tested positive for drugs on January 6, 2025. She entered an inpatient rehabilitation
program at Cornerstone but was “released” on February 4 for medical reasons. The
following day, she was arrested in Knox County for violating the terms of her probation.
Mother proceeded to trial on the termination petition on February 11, 2025. She remained
incarcerated at the time and had a hearing scheduled for the following week. Additionally,
the charges that Mother incurred in Ohio remained pending. She had signed a written plea
agreement related to these charges, in which she agreed to plead guilty to two felony drug
offenses. At the time of the trial, Maisynn had recently turned one year old.
Maisynn’s foster mother (“Foster Mother”) was the first witness called to testify.
Foster Mother stated that Maisynn had been in her care for approximately ten months. She
then explained Maisynn’s various medical diagnoses. She stated that Maisynn had been
diagnosed with “NAS,” a “gag reflex in table foods,” and had an eye misalignment called
“pseudostrabismus.” Maisynn also carries a sickle cell trait. Foster Mother explained that
Maisynn’s NAS diagnosis requires her to participate in several forms of physical therapy.
She initially participated in physical therapy through the University of Tennessee but had
shifted to the Grow With Me Clinic. Since coming into the foster home, Maisynn had
participated in developmental therapy, feeding therapy, and physical therapy. At the time
of trial, she was still participating in physical therapy twice per month to work “on her
delayed gross motor [skills].” Foster Mother stated that Maisynn’s issues caused delays in
her reaching certain developmental milestones. However, Maisynn has progressed
developmentally while in the home, and at the time of trial could crawl and sit. She was
2
Mother was unmarried at the time of Maisynn’s birth but identified Maisynn’s father as a man
named Harold R. His parental rights were terminated on November 19, 2024.
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working to learn how to pull herself up to stand and to learn how to walk. As for her
feeding issues, at the time that Maisynn came into Foster Mother’s care, she “was showing
no hunger cues. She wasn’t crying in the middle of the night for a bottle.” Additionally,
she “was only taking 12 to 15 ounces [of milk,] which is about half of what she should
have been taking for her age.” She was also underweight when she arrived in the foster
home but had steadily gained weight since that time. Maisynn was in the second percentile
of weight for a child her age when she arrived at the foster home, but she had progressed
to the tenth percentile. Foster Mother also described Maisynn’s experience at the Grow
With Me Clinic. Maisynn attends appointments at the clinic once every three months. She
sees six different professionals including a nurse practitioner, a nutritionist, and a speech
pathologist. Maisynn also has visits with the Tennessee Early Intervention System once
per month. Foster Mother explained that she does not work outside the home and takes
Maisynn to all of her appointments.
Foster Mother noted that she and her husband (“Foster Father”) have several other
children. Three of those children are college age and do not reside in their home full-time.
The three remaining children are minors and do reside in the home. She stated that Foster
Father works outside the home and their home has six or seven bedrooms and a loft. Foster
Mother explained that Maisynn was sleeping in a crib in the foster parents’ bedroom
because she has trouble sleeping through the night and often needs to be soothed back to
sleep. Once she is old enough, she will have her own bedroom. Foster Mother also stated
that if Mother’s parental rights were terminated, she and Foster Father intended to adopt
Maisynn.
Next, Ms. Mackenzie Brown was called to testify. Ms. Brown is a DCS worker and
has been Maisynn’s family service worker since April 16, 2024. Ms. Brown stated that she
met Mother shortly after the case began. She explained to Mother that she was entitled to
visitation but it would need to be supervised. She also informed Mother that she had been
placed on “fentanyl protocol” and therefore, she would be required to pass a drug screen
immediately prior to her visits. Ms. Brown stated that the first visit was scheduled for
April 30, 2024. However, this visit did not take place because Mother failed the required
drug screen. The parties scheduled another visit for May 6, 2024, but Mother again tested
positive for drugs. A third visit was scheduled for May 13, 2024. However, this visit did
not take place because Mother “did not show up.” Mother also failed to appear for visits
scheduled for May 24 and May 28, 2024. Mother did appear for a visit scheduled for June
5, 2024. However, this visit did not take place because Mother again failed a drug screen.
Another visit was scheduled for June 11, 2024. Mother again failed to appear, and she was
arrested on drug charges later that day. Ms. Brown noted that at the conclusion of the
August 6, 2024 hearing, Maisynn was found to have been the victim of severe child abuse
perpetrated by Mother. She was asked whether she was aware of Mother having ever
appealed this ruling. She responded, “[n]o, not to my knowledge.”
Ms. Brown stated that she and Mother had discussed the need for treatment to
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address her substance abuse issues. She noted that Mother had participated in various
treatment programs. However, she had never provided documentation demonstrating that
she completed any of these programs. Additionally, Mother had never provided proof of
employment and had never paid child support.
Ms. Brown also noted that Mother participated in three visits with Maisynn during
December 2024. She stated that, during this time, Mother maintained contact with DCS
and “did well” with Maisynn during visits. Mother also provided Maisynn with diapers
and Christmas presents. Mother passed drug screens on December 5th, 11th, and 19th.
However, Mother took another drug test on January 6, 2025, and tested positive for
fentanyl, cocaine, and opiates. Mother returned to the Cornerstone rehabilitation center
but never provided documentation indicating that she had completed the program. Shortly
after she left the facility, Mother was arrested, as her drug use constituted a probation
violation.
Ms. Brown also discussed Maisynn’s interactions with her foster parents. She stated
that the foster parents were able to comfort and feed Maisynn properly. She also had no
concerns about the relationships Maisynn had with the other family members living in the
home. Conversely, Mother had never asked for the names of any of Maisynn’s healthcare
providers or any other medical information. Mother had attempted to attend one of
Maisynn’s medical appointments but was not permitted to do so because she failed a drug
screen. Ms. Brown stated that she was concerned about Mother’s ability to provide
Maisynn with the “services” she required. Later, Ms. Brown was asked why DCS filed the
termination petition less than seven months after the dependency and neglect petition. She
responded, “[d]ue to the lack of visitation, we had to look at achieving permanency for the
child.”
Mother was the final witness to testify. She stated that she was incarcerated for a
probation violation and had been incarcerated for a little less than one week. Mother later
clarified that her probation violation was a result of the drug screen she failed on January
6, 2025. She was “notified” of this violation on February 5, 2025, one day after she had
left the treatment program at Cornerstone. She stated that she enrolled in Cornerstone’s
treatment program on January 13, 2025. She was “medically discharged” on February 4
due to a heart issue. However, she claimed that this discharge had been “with completion.”
She also claimed that she had proof of completion but could not provide this proof due to
her incarceration. Mother, who was 31 years old at the time of trial, was asked when she
began using drugs. She responded, “I think meth when I was 23, and then fentanyl when
I was like 26.” Mother stated that she had been to substance abuse treatment four times in
her life. Mother had also attended Cornerstone immediately after giving birth to Maisynn,
but this program ended prematurely because she was medically discharged so she could
undergo surgery. She attended an inpatient “detox center” in Ohio for two weeks. She
was asked what her longest period of sobriety had been, and she stated, “I don’t know
exactly, but more than a year.” She did not remember when this year of sobriety took
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place. She did note that this period of sobriety had not been within the previous two years
but claimed she had “been really trying[.]” She stated that she had admitted to her
probation officer that she “did slip up and use fentanyl.” She stated that the charges she
had incurred in Ohio were still pending but she had already signed a plea agreement. She
was unsure when she would be released but had a court date scheduled for the week
following the trial.
Mother noted that she had a bachelor’s degree in social work with a certification in
drug and alcohol abuse counseling and phlebotomy. She had previously worked with the
Safe Baby Court of Knox County. Mother was asked to describe Maisynn’s medical needs.
She stated that she knew Maisynn attended feeding therapy and physical therapy. She went
on to say, “I know what I’m told. I know what I ask and what I’m told.” She claimed that
she would ensure Maisynn was taken to all appointments. However, she acknowledged
that she could not do so while “sitting in jail.” She later testified that she had not been
employed since 2021, but she was confident she would be able to obtain a job once released
from prison. She noted that she had a driver’s license, owned a vehicle, and owned a two-
bedroom home. She also claimed to have “baby items” in the home and noted that she had
“family support,” which would permit her to care for Maisynn financially. However, she
later explained that while her house was debt-free, her mother helped her to pay “lot rent.”
Her mother had also purchased her car for her and helped her to pay for her car insurance.
On cross-examination, Mother claimed that her “sober date” was December 31,
2024. She noted that the “one slip up” that occurred that day caused her to fail the drug
screen she took on January 6, 2025. However, she was attending narcotics anonymous and
alcoholics anonymous meetings while incarcerated. She had also attended parenting
classes. She was meeting with a therapist weekly and was taking medication for anxiety
and depression. She also claimed that she had a relationship with Maisynn, and stated, “I
believe she called me ‘mama’ once.” This concluded Mother’s testimony.
The juvenile court entered its final order on March 12, 2025. The juvenile court
found that the grounds of abandonment by an incarcerated parent through wanton
disregard, severe child abuse, and failure to manifest an ability and willingness to assume
custody had been proven by clear and convincing evidence. The juvenile court also
determined that termination was in the child’s best interest. Mother filed this appeal.
II. ISSUES PRESENTED
Mother presents the following issues for review on appeal, which we have slightly
reframed:
1. Whether the juvenile court erred when it determined that two grounds for
termination were proven by clear and convincing evidence: abandonment by an
incarcerated parent and failure to manifest an ability and willingness to assume
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custody of the child.
2. Whether the juvenile court erred when it determined that termination was in the best
interest of the child.
For the following reasons, we affirm the termination of parental rights.
III. STANDARDS APPLICABLE TO TERMINATION CASES
“‘A parent’s right to the care and custody of [his or] her child is among the oldest
of the judicially recognized fundamental liberty interests protected by the Due Process
Clauses of the federal and state constitutions.’” In re Neveah M., 614 S.W.3d 659, 674
(Tenn. 2020) (quoting In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016)). “Parental
rights have been described as ‘far more precious than any property right.’” Id. (quoting In
re Carrington H., 483 S.W.3d at 522). “No civil action carries with it graver consequences
than a petition to sever family ties irretrievably and forever.” In re Kaliyah S., 455 S.W.3d
533, 556 (Tenn. 2015). Nevertheless, parental rights are not absolute. In re Carrington
H., 483 S.W.3d at 522.
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 at
546. Pursuant to this statute, the petitioner seeking termination of parental rights must
prove two elements. Id. at 552. First, the petitioner 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. Second, the petitioner must prove that termination of parental rights is in
the child’s best interest pursuant to the factors set forth in Tennessee Code Annotated
section 36-1-113(i). Id. Due to the constitutional dimension of the rights at stake, the
petitioner seeking termination must prove both elements by clear and convincing evidence.
In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-
113(c)). “Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct.
App. 2005), and eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citing In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002); State, Dep’t of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d
435, 447 (Tenn. Ct. App. 2008)).
We review a trial court’s factual findings de novo in accordance with Rule 13(d) of
the Tennessee Rules of Appellate Procedure, presuming each factual finding to be correct
unless the evidence preponderates otherwise. In re Carrington H., 483 S.W.3d at 523-24.
However, “[w]hen a trial court’s factual finding is based on its assessment of a witness’s
credibility, appellate courts afford great weight to that determination and will not reverse
it absent clear evidence to the contrary.” In re Markus E., 671 S.W.3d 437, 457 (Tenn.
2023). 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
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convincing evidence of the elements necessary to terminate parental rights.” In re
Carrington H., 483 S.W.3d at 524 (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” as are any additional questions of law. Id. (citing In re M.L.P., 281 S.W.3d
387, 393 (Tenn. 2009)).
IV. DISCUSSION
A. Grounds for Termination
1. Abandonment by an Incarcerated Parent
The juvenile court determined that DCS proved the ground of abandonment by an
incarcerated parent by clear and convincing evidence. The statute defining this ground
contains multiple ways of establishing abandonment for termination of parental rights. In
re Navada N., 498 S.W.3d 579, 598 (Tenn. Ct. App. 2016) (quoting In re Kierra B., No.
E2012-02539-COA-R3-PT, 2014 WL 118504, at *8 (Tenn. Ct. App. Jan. 14, 2014)).
Importantly, the parent’s “incarceration is a condition precedent for this definition of
abandonment.” In re Trenton B., No. M2022-00422-COA-R3-PT, 2023 WL 569385, at *3
(Tenn. Ct. App. Jan. 27, 2023) (citing In re Navada N., 498 S.W.3d at 598). Accordingly,
the statute provides additional circumstances that, when coupled with the parent’s
incarceration, lead to the conclusion the parent abandoned the child. See Tenn. Code Ann.
§ 36-1-102(1)(A)(iv)(a)-(c). One method of abandonment as defined by this section occurs
where:
[a] parent or guardian is incarcerated at the time of the filing of a proceeding,
pleading, petition, or amended petition to terminate the parental rights of the
parent or guardian of the child who is the subject of the petition for
termination of parental rights or adoption, or a parent or guardian has been
incarcerated during all or part of the four (4) consecutive months
immediately preceding the filing of the action if the child is four (4) years of
age or more or three (3) consecutive months immediately preceding the filing
of the action if the child is less than four (4) years of age and has:
...
(c) With knowledge of the existence of the born or unborn child, engaged in
conduct prior to, during, or after incarceration that exhibits a wanton
disregard for the welfare of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(iv)(c).
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Here, the trial court found that Mother had (1) been incarcerated for a portion of the
four months immediately preceding the filing of the petition to terminate Mother’s parental
rights and (2) engaged in conduct exhibiting a wanton disregard for Maisynn’s welfare
“through her continued drug use, numerous failed drug screens, and continued criminal
conduct[.]” Mother claims that this ground for termination was not proven by clear and
convincing evidence. She points to the drug screens she passed in December 2024 and her
participation in the Cornerstone substance abuse program as evidence that she has
attempted to achieve sobriety. She essentially asks that the relapse on December 31, 2024,
not be held against her because such relapses are “an expected part of recovery.” She also
claims that she has not exhibited wanton disregard for Maisynn’s welfare because her
incarceration at the time of trial was the result of a probation violation stemming from this
relapse, rather than a new criminal charge.
Regarding the statute’s first requirement, the trial court seems to have applied the
portion of the statute that pertains to children four years of age or older and assessed
whether Mother was incarcerated for any part of the four months preceding the filing of
the termination petition. See Tenn. Code Ann. § 36-1-102(1)(A)(iv). However, as
Maisynn was less than four years old when the petition was filed, the juvenile court should
have applied the three-month standard for a child less than four years of age. See id. This
form of abandonment is applicable to a child younger than four years old when a parent
has been incarcerated for all or part of the three months preceding the filing of the
termination petition rather than four months. Tenn. Code Ann. § 36-1-102(1)(A)(iv).
However, this error was harmless. As the juvenile court correctly noted, Mother was
incarcerated from June 11, 2024, until August 7, 2024. The petition to terminate Mother’s
parental rights was filed on September 10, 2024. Therefore, Mother was clearly
incarcerated for a portion of the three months preceding the filing of the termination
petition, and the statute’s first requirement was proven by clear and convincing evidence.
Turning to the issue of wanton disregard, “[w]e have repeatedly held that probation
violations, repeated incarceration, criminal behavior, substance abuse, and the failure to
provide adequate support or supervision for a child can, alone or in combination, constitute
conduct that exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182
S.W.3d at 867-868 (citing State Dep’t of Children’s Servs. v. J.M.F., No. E2003-03081-
COA-R3-PT, 2005 WL 94465, at *7-8 (Tenn. Ct. App. Jan. 11, 2005), perm. app. denied
(Tenn. Mar. 21, 2005); In re C. LaC., No. M2003-02164-COA-R3-PT, 2004 WL 533937,
at *7 (Tenn. Ct. App. Mar. 17, 2004); In re C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct. App.
2004); In re C.W.W., 37 S.W.3d 467, 474-75 (Tenn. Ct. App. 2000)). Mother’s behavior
has certainly demonstrated a wanton disregard for Maisynn’s welfare. Since Maisynn was
born, Mother has been arrested for drug use and was rearrested based on a probation
violation stemming from a failed drug test. She was incarcerated at the time of trial and
had signed a plea agreement for drug charges pending in the state of Ohio. Except for one
brief period of sobriety, Mother has used drugs consistently since Maisynn’s birth. Perhaps
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most indicative of a wanton disregard for Maisynn’s welfare was Mother’s decision to use
drugs while pregnant with knowledge that such drug use could result in Maisynn
experiencing significant health issues. Additionally, Mother has exhibited a wanton
disregard for Maisynn’s welfare through her failure to support her since birth. Mother has
never paid any child support. Other than one instance of providing diapers and Christmas
presents, Mother has never supported Maisynn in any way. Therefore, we affirm the
juvenile court’s determination that DCS proved the ground of abandonment by an
incarcerated parent by clear and convincing evidence.
2. Severe Child Abuse
The juvenile court determined that DCS proved the ground of severe child abuse by
clear and convincing evidence.3 This ground for termination exists where:
[u]nder a prior order of a court or by the court hearing the petition to
terminate parental rights or the petition for adoption, a child has been found
to be a victim of severe child abuse, as defined in § 37-1-102, and the parent
or guardian has been found to have knowingly or with gross negligence either
committed severe child abuse or failed to protect the child from severe child
abuse.
Tenn. Code Ann. § 36-1-113(g)(4).
This Court has consistently applied the doctrine of res judicata to prevent a parent
from re-litigating the issue of severe child abuse in a parental termination proceeding when
the order finding the parent to be a perpetrator of severe child abuse has become final. See
In re Sawyer B., No. E2023-01497-COA-R3-PT, 2025 WL 1276693, at *7 (Tenn. Ct. App.
May 2, 2025); In re Colten B., No. E2024-00653-COA-R3-PT, 2025 WL 252663, at *5-6
(Tenn. Ct. App. Jan. 21, 2025); In re Quentin G., No. E2023-01632-COA-R3-PT, 2024
WL 3324105, at *4 (Tenn. Ct. App. July 8, 2024). Res judicata is applicable “when ‘an
existing final judgment rendered upon the merits, without fraud or collusion, by a court of
competent jurisdiction, is conclusive of rights, questions and facts in issue as to the parties
and their privies, in all other actions in the same or any other judicial tribunal of concurrent
jurisdiction.’” In re Heaven L.F., 311 S.W.3d 435, 439 (Tenn. Ct. App. 2010) (quoting
Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn. Ct. App. 1990)). “[A] severe abuse finding
in a dependency and neglect action becomes final when it was not timely appealed
3
Mother did not challenge the juvenile court’s ruling on the ground of severe child abuse in her
brief. Although this would typically result in the issue being waived, we will nonetheless review the
juvenile court’s findings as to each ground for termination pursuant to our Supreme Court’s directive in In
re Carrington H. See In re Carrington H., 483 S.W.3d at 525-26. (“[W]e hold that in an appeal from an
order terminating parental rights the Court of Appeals must review the trial court’s findings as to each
ground for termination and as to whether termination is in the child’s best interests, regardless of whether
the parent challenges these findings on appeal.”)
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following the dependency and neglect hearing.” In re Caydan T., No. W2019-01436-COA-
R3-PT, 2020 WL 1692300, at *5 (Tenn. Ct. App. Apr. 7, 2020) (citing In re Karisah N.,
No. M2018-00555-COA-R3-PT, 2018 WL 6179470, at *10 (Tenn. Ct. App. Nov. 27,
2018); In re Dakota C.R., 404 S.W.3d 484, 497-98 (Tenn. Ct. App. 2012)).
Notably, the language of this ground for termination was recently amended by the
Tennessee legislature. However, like the previous version, the statute continues to “make[]
clear ‘that the finding of severe abuse can be based on a prior court order . . . .’” In re
Quentin G., 2024 WL 3324105, at *4 (quoting In re Brianna T., No. E2017-01130-COA-
R3-PT, 2017 WL 6550852, at *4 (Tenn. Ct. App. Dec. 22, 2017)) (discussing the prior
version). The new version of the statute still identifies a “prior order of a court” as an
appropriate mechanism for the severe child abuse finding. Tenn. Code Ann. § 36-1-
113(g)(4). Therefore, in our view, it remains “well settled that a trial court may rely on a
prior court order finding severe child abuse as a ground for termination and is not required
to re-litigate the issue of severe abuse during the termination trial, so long as the prior order
is final.” In re Neamiah R., No. E2017-02000-COA-R3-PT, 2018 WL 2331868, at *6
(Tenn. Ct. App. May 23, 2018).
Returning to the pertinent language of the current statute, it provides that a ground
for termination exists when “[u]nder a prior order of a court . . . a child has been found to
be a victim of severe child abuse, as defined in § 37-1-102, and the parent or guardian has
been found to have knowingly or with gross negligence either committed severe child
abuse or failed to protect the child from severe child abuse.” Tenn. Code Ann. § 36-1-
113(g)(4) (emphasis added). Here, the juvenile court determined that Maisynn was the
victim of severe child abuse as defined in § 37-1-102(b)(27), perpetrated by Mother, based
on her use of drugs while pregnant. This determination was preserved in a written final
order entered on August 26, 2024. In this order, the juvenile court described medical
records presented as proof at the hearing, which showed that Mother met with her medical
provider in August 2023, told them that she had used fentanyl, and was then counseled by
her provider on the risks associated with using illegal substances during pregnancy,
including NAS and DCS involvement. The records showed that Mother “voiced
understanding of the risks.” The records also showed that Mother refused to provide urine
samples at some subsequent appointments, and at others, she tested positive for multiple
illegal substances, including methamphetamine, morphine, and fentanyl. The records
showed that Mother “was again counseled regarding the risks associated with substance
use during pregnancy[.]” Based on this proof, the juvenile court determined that (1)
Mother knew she was pregnant on or before August 21, 2023, (2) Mother used drugs
“against the advice of medical professionals,” and (3) Mother should have known that her
substance abuse while pregnant could have adverse effects on Maisynn’s health. It found
Maisynn was the victim of severe abuse “based upon Mother’s use of illicit substances
during her pregnancy with this child with the knowledge that her use of illicit substances
could cause serious bodily injury or death to her baby.” (emphasis added). The juvenile
court found in the order terminating Mother’s parental rights that she never appealed these
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findings. This finding is supported by the record.
Mother has neither disputed the previous order nor raised any issue on appeal
regarding this ground for termination. Because a final order of the juvenile court found
that Maisynn was a victim of severe child abuse, pursuant to Tennessee Code Annotated
section 37-1-102(b)(27), and Mother was found to have knowingly or with gross
negligence committed severe child abuse, this ground for termination of her parental rights
“is effectively established.” In re Samaria S., 347 S.W.3d 188, 201 (Tenn. Ct. App. 2011).
Therefore, we affirm.
3. Failure to Manifest an Ability and Willingness to Assume Custody of the Child
The juvenile court determined that DCS proved the ground of failure to manifest an
ability and willingness to assume custody of the child by clear and convincing evidence.
This ground exists where 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). To prove this ground, the petitioner must prove two
“prongs” by clear and convincing evidence. In re Neveah M., 614 S.W.3d at 674. The first
prong is that “the parent . . . failed to manifest an ability and willingness to personally
assume legal and physical custody or financial responsibility of the child[.]” Id. This is
satisfied by “clear and convincing proof that a parent . . . has failed to manifest either ability
or willingness[.]” Id. at 677. “A parent’s ability to assume custody or financial
responsibility is evaluated based ‘on the parent’s lifestyle and circumstances.’” In re
Trenton B., No. M2022-00422-COA-R3-PT, 2023 WL 569385, at *6 (Tenn. Ct. App. Jan.
27, 2023) (quoting In re Zaylee W., No. M2019-00342-COA-R3-PT, 2020 WL 1808614 at
*5 (Tenn. Ct. App. Apr. 9, 2020)). “When evaluating willingness, we look for more than
mere words.” In re Jonathan M., No. E2018-00484-COA-R3-PT, 2018 WL 5310750, at
*5 (Tenn. Ct. App. Oct. 26, 2018). The second prong requires proof that “placing the child
in the parent’s legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child.” In re Neveah M., 614 S.W.3d at 674.
Here, the juvenile court determined Mother’s drug use demonstrated that she lacked
the ability to care for Maisynn. The juvenile court also found that a risk of substantial harm
existed based on Mother’s drug use and her lack of knowledge regarding Maisynn’s
medical needs. Mother claims that she demonstrated an ability and willingness to assume
custody of Maisynn. She points to her testimony that she completed a drug treatment
program after her most recent drug use and was attending narcotics anonymous and
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alcoholics anonymous meetings while in prison. She also claims that the “small amount
of time” between Maisynn being taken into DCS custody and the filing of the termination
petition was “not adequate to allow [her] to get clean, complete treatment[,] . . . and to
allow her sufficient time to demonstrate [the] ability to provide a suitable home for the
child.” She claims that her rights were “prematurely terminated.”
Mother’s drug use clearly demonstrates that she lacks the ability to care for
Maisynn. See In re Riley B., No. E2022-00684-COA-R3-PT, 2023 WL 3477216, at *4
(Tenn. Ct. App. May 16, 2023) (finding that a mother’s long history of drug abuse which
was not fully resolved at the time of trial constituted clear and convincing evidence “that
she failed to manifest an ability to assume custody of the children”). Mother’s addiction
has persisted throughout these proceedings and has prevented her from effectively
parenting Maisynn. Mother’s drug use while pregnant resulted in Maisynn being removed
from her custody shortly after she was born. Her drug use since Maisynn’s birth has
resulted in multiple periods of incarceration. Mother even tested positive for drugs the one
time she had Maisynn in her sole care. Mother has never properly addressed these issues.
Mother also failed to demonstrate an adequate understanding of Maisynn’s medical needs.
She stated that she was aware Maisynn had certain medical needs and attended feeding
therapy and physical therapy. She also claimed that she would ensure Maisynn attended
all necessary doctors’ appointments. However, Mother failed to explain the breadth of
Maisynn’s needs in any detail. She also did not expound upon how she intended to attend
Maisynn’s appointments if she were working the amount necessary to support her
financially.
Additionally, we find no merit in Mother’s claim that her parental rights “were
prematurely terminated.” Nothing in the definition of this ground for termination requires
DCS to wait a statutory period prior to filing a petition to terminate parental rights. See
Tenn. Code Ann. § 36-1-113(g)(14). Further, Mother’s claim does not otherwise address
any of the circumstances necessary for this ground for termination to be established.
Additional time would not have undone either the behavior leading to Mother’s
incarceration or the conduct demonstrating a wanton disregard for Maisynn’s welfare.
Even if this argument were otherwise cogent, Mother’s claim is undercut by the fact that
she has not taken advantage of the time she has been given. She has failed to pay child
support throughout the proceedings. She also missed several scheduled visits with
Maisynn due to failed drug screens. She missed several other visits by simply failing to
appear. Further, she has demonstrated little to no progress in rectifying the issues
preventing reunification with Maisynn. While we commend Mother for her participation
in several drug treatment programs, she failed to submit proof to both DCS and the juvenile
court that she completed any of these programs. She certainly has not used the programs
properly as despite her attendance, she has continued to test positive for drugs.
Mother has also failed to demonstrate an ability to care for Maisynn financially. She
has been unemployed since 2021. Mother has relied on her family to pay her lot rent, car
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insurance, and other bills since that time. She has not demonstrated any ability to
personally provide for Maisynn. While she did claim that she believed she would be able
to obtain employment upon release from prison, Mother did not explain what specific role
she expected to obtain.
Further, we agree with the juvenile court’s determination that Mother’s continued
drug use and ignorance of Maisynn’s medical needs demonstrate a sufficiently probable
risk of substantial harm to Maisynn’s physical and psychological welfare. Therefore, we
affirm the juvenile court’s determination that DCS proved this ground for the termination
of Mother’s parental rights by clear and convincing evidence.
B. Best Interest of the Child
Having determined that the juvenile court did not err when it found DCS proved
three statutory grounds for termination existed, we now consider whether the termination
of Mother’s parental rights was in Maisynn’s best interest. However, prior to addressing
the statutory factors, we address Mother’s claim that the juvenile court did not make
sufficient findings regarding the best interest factors. This claim is patently without merit.
In its final written order, the juvenile court considered each of the 20 statutory factors
individually. The trial court listed the factor, stated whether the factor weighed in favor of
termination, and then explained the facts and analysis leading to this determination. We
are perplexed by Mother’s decision to raise this argument in lieu of constructing an
argument addressing the weight given to the statutory factors. She has not addressed any
of the statutory factors in her brief or attempted to explain why the factors weigh against
termination of Mother’s parental rights. Regardless, we will review the statutory factors
in accordance with our Supreme Court’s directive in In re Carrington H. See In re
Carrington H., 483 S.W.3d at 525-26 (“[W]e hold that in an appeal from an order
terminating parental rights the Court of Appeals must review the trial court’s findings as
to each ground for termination and as to whether termination is in the child’s best interests,
regardless of whether the parent challenges these findings on appeal.”)
The factors to be considered are set out in Tennessee Code Annotated section 36-1-
113(i), which states:
(i)(1) In determining whether termination of parental . . . rights is in the best
interest of the child, the court shall consider all relevant and child-centered
factors applicable to the particular case before the court. Those factors may
include, but are not limited to, the following:
(A) The effect a termination of parental rights will have on the child’s critical
need for stability and continuity of placement throughout the child’s
minority;
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(B) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological, and medical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting
the child’s basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental
attachment, and if not, whether there is a reasonable expectation that the
parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact with
the child and used the visitation or other contact to cultivate a positive
relationship with the child;
(F) Whether the child is fearful of living in the parent’s home;
(G) Whether the parent, parent’s home, or others in the parent’s household
trigger or exacerbate the child’s experience of trauma or post-traumatic
symptoms;
(H) Whether the child has created a healthy parental attachment with another
person or persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons
other than parents and caregivers, including biological or foster siblings, and
the likely impact of various available outcomes on these relationships and
the child’s access to information about the child’s heritage;
(J) Whether the parent has demonstrated such a lasting adjustment of
circumstances, conduct, or conditions to make it safe and beneficial for the
child to be in the home of the parent, including consideration of whether there
is criminal activity in the home or by the parent, or the use of alcohol,
controlled substances, or controlled substance analogues which may render
the parent unable to consistently care for the child in a safe and stable
manner;
(K) Whether the parent has taken advantage of available programs, services,
or community resources to assist in making a lasting adjustment of
circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent
in making a lasting adjustment in cases where the child is in the custody of
the department;
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(M) Whether the parent has demonstrated a sense of urgency in establishing
paternity of the child, seeking custody of the child, or addressing the
circumstance, conduct, or conditions that made an award of custody unsafe
and not in the child’s best interest;
(N) Whether the parent, or other person residing with or frequenting the
home of the parent, has shown brutality or physical, sexual, emotional, or
psychological abuse or neglect toward the child or any other child or adult;
(O) Whether the parent has ever provided safe and stable care for the child
or any other child;
(P) Whether the parent has demonstrated an understanding of the basic and
specific needs required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to
creating and maintaining a home that meets the child’s basic and specific
needs and in which the child can thrive;
(R) Whether the physical environment of the parent’s home is healthy and
safe for the child;
(S) Whether the parent has consistently provided more than token financial
support for the child; and
(T) Whether the mental or emotional fitness of the parent would be
detrimental to the child or prevent the parent from consistently and
effectively providing safe and stable care and supervision of the child.
Tenn. Code Ann. § 36-1-113(i)(1). Many of these factors are interrelated. Therefore, we
address several of them in concert.
First, we consider those interrelated factors concerning the child’s need for stability
and continuity of placement, the effect the potential change of caretakers and physical
environment would have on the child, and her parental attachments and emotionally
significant relationships with persons other than parents and caregivers. Tenn. Code Ann.
§ 36-1-113(i)(1)(A), (B), (H), and (I). Maisynn has experienced stability in her foster
home. She has resided there for most of her life and, by all accounts, is treated as a member
of the family. She is provided for financially and is taken to her various doctors’
appointments and physical therapies. Foster Mother testified that she and Foster Father
intend to adopt Maisynn if Mother’s parental rights are terminated. Conversely, Mother
has certainly not taken the time or steps necessary to form a healthy parental attachment
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with Maisynn. She missed numerous visits by either testing positive for drugs or simply
failing to appear. While she did visit Maisynn and provide her with diapers and Christmas
presents during a brief period of sobriety in December 2024, she has otherwise separated
herself through her consistent drug use and periods of incarceration. She has not made a
lasting commitment to her relationship with Maisynn and has not made significant progress
in overcoming the obstacles preventing a relationship from being formed. Therefore,
factors (A), (B), (H), and (I) each weigh heavily in favor of termination.
Next, we consider the interrelated factors concerning Maisynn’s interest in stable
and secure housing and parenting. Tenn. Code Ann. § 36-1-113(i)(1)(C), (D), (E), (F), (G),
and (O). Mother has not demonstrated any continuity or stability in meeting Maisynn’s
needs. She has been incarcerated for a large portion of Maisynn’s life. She has spent much
of the time in which she has not been incarcerated abusing drugs. Except for the brief
three-week span in December 2024, Mother has consistently separated herself from
Maisynn through her substance abuse. Additionally, Mother has made no attempt to
provide for Maisynn and has not demonstrated that she has the ability to do so. She has
never made a child support payment. She has been unemployed since 2021 and has relied
on her family to support her since that time. While she claimed at trial that she would be
able to obtain a job upon release from prison, she did not explain what job she intended to
obtain or whether there was an employer prepared to hire given her criminal history.
Further, there are no facts contained in the record indicating that Mother would be able to
cultivate a healthy parental relationship with Maisynn in the future. Therefore, we find
that factors (C), (D), (E), and (O) weigh in favor of termination. However, although factors
(F) and (G) also pertain to Maisynn’s interest in a stable home, she has never resided with
Mother. Therefore, these factors are neutral in this case.
Factors (L) and (K) both concern the reasonable efforts of DCS to assist the parent
and the parent’s inclination to engage in DCS offered services. The trial court found that
DCS made reasonable efforts to assist Mother throughout this case by scheduling visits,
providing drug tests, conducting child and family team meetings, and making treatment
available to Mother. We agree. Mother has shown an inclination to participate in services
offered. She has participated in drug rehabilitation four times. She also testified that she
had taken parenting classes and was participating in narcotics and alcoholics anonymous.
However, she has not taken proper advantage of these resources. Despite her experience in
drug treatment programs, Mother has continued to use drugs throughout these proceedings.
As the juvenile court noted, this issue is compounded by the fact that Mother has a college
degree specializing in the treatment of such issues. Clearly, Mother is aware of the steps
necessary to alleviate her substance abuse issues but refuses to employ them. Therefore,
factors (L) and (K) both weigh in favor of termination.
Factor (N) considers whether the parent or a person residing with the parent has ever
exhibited brutality, physical, sexual, emotional, or psychological abuse toward others. As
stated above, Mother has been adjudicated as a perpetrator of severe child abuse against
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Maisynn due to her use of drugs while pregnant. Therefore, this factor weighs in favor of
termination.
Regarding factor (S), Mother has made no financial contribution to Maisynn’s
support. Tenn. Code Ann. § 36-1-113(i)(1)(S). Mother never paid any of her court ordered
child support even though it was set at a mere $40 per month. Mother did provide Maisynn
with diapers and Christmas presents a single time. This is obviously not the consistent and
substantial financial contribution necessary for the support of a child. Therefore, this factor
weighs heavily in favor of termination.
Finally, we consider the interrelated factors concerning the parent’s adjustment of
circumstances detrimental to the child’s environment, health, and psychological welfare.
Tenn. Code Ann. § 36-1-113(i)(1)(J), (M), (P), (Q), (R) and (T). Mother has not adjusted
to the circumstances preventing her from caring for Maisynn. She was incarcerated at the
time of trial and was unsure when she would be released. She had additional charges
pending out of state and had signed a plea agreement. Mother has not made any concrete
plans for her future upon release. At the time of trial Mother had been unemployed since
2021. Her only testimony regarding her ability to care for Maisynn in the future was that
she believed she would be able to find a job and intended to rely on “family support.”
Additionally, Foster Mother gave detailed testimony regarding Maisynn’s medical
treatment and stated that she was able to take her to all medical appointments. Conversely,
when asked about Maisynn’s medical conditions Mother was unable to explain them in any
capacity stating only that she knew Maisynn attends physical therapy and feeding therapy.
Finally, concerning Mother’s emotional maturity, the trial court determined that this factor
weighed in favor of termination because while Mother “appears intelligent and [ ] is
educated with tremendous potential [ ] her drug use impairs her judgment and prevents her
from doing the right thing for her child.” We agree. Therefore, factors (J), (M), (P), (Q),
(R), and (T) each weigh in favor of termination of Mother’s parental rights.
Having carefully reviewed the record, we conclude that the proof does not
preponderate against the juvenile court’s factual findings, and we conclude that the facts,
viewed as a whole, amount to clear and convincing evidence that termination of parental
rights is in Maisynn’s best interest. See In re Neveah M., 614 S.W.3d at 680. Therefore,
the ruling of the juvenile court is affirmed.
V. CONCLUSION
For the foregoing reasons, we affirm the decision of the juvenile court. Costs of this
appeal are taxed to the appellant, Morgan Y., for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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