Petition for Writ of Certiorari — Michael B., Petitioner v. Tennessee Department of Children's Services

APPENDIX TABLE OF CONTENTS

Order of the Supreme Court of Tennessee

(September 18, 2018).......................................... 1a

Opinion of the Court of Appeals of Tennessee

(June 25, 2018) ................................................... 2a

Order of the Circuit Court of Tennessee for the

Twenty-Eighth Judicial District at Trenton

Terminating Parental Rights of Jamie W. and

Michael B. and Placing D.B. and E.B. in the

Full Guardianship of the State of Tennessee,

Department of Children's Services

(August 24, 2017) ............................................. 33a

App.1a

ORDER OF THE

SUPREME COURT OF TENNESSEE

(SEPTEMBER 18, 2018)

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

________________________

In Re: DAMON B., ET AL.

________________________

No. W2017-01858-SC-R11-PT

Circuit Court for Gibson County No. 8885

Upon consideration of the application for permission to appeal of Michael B., and the record before us,

the application is denied.

App.2a

OPINION OF THE

COURT OF APPEALS OF TENNESSEE

(JUNE 25, 2018)

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

________________________

In Re: DAMON B., ET AL.

________________________

No. W2017-01858-COA-R3-PT

Appeal from the Circuit Court for Gibson County

No. 8885, Clayburn Peeples, Judge

Before: Frank G. CLEMENT JR., P.J., M.S., Brandon

O. GIBSON and John Everett WILLIAMS, JJ.,

Jamie W. (“Mother”) and Michael B. (“Father”) are

the unmarried parents (collectively, “Parents”) to two

minor children, Damon and Elijah B. In May 2015,

Father contacted DCS, alleging that Mother had

attempted to shoot Father and that Parents were

unable to care for the children due to Mother’s psychological issues and Father’s physical ailments. During

DCS’s subsequent investigation, Parents reported

multiple instances of domestic violence. Law enforcement had been called on the family over ten times

during the previous two years, resulting in seven

arrests and Father’s conviction for domestic assault

in February 2015. Parents admitted to an extensive

history of substance abuse and currently using marijuana and cannabis oil to treat chronic health condi-

App.3a

tions.1 Parents also reported having untreated mental

health issues; Father allegedly had PTSD, and Mother

reported a history of suicide attempts.

In late May 2015, DCS began in-home family

counseling after Parents admitted that they needed

assistance. Due to Father’s comments about wanting

to kill or poison Cody, Mother’s oldest child from a

previous relationship, Parents agreed that the children’s safety required Father to leave the home; however, Mother later notified DCS that Father refused

to leave and would not allow her to leave either.

Because of Parents’ issues with domestic violence, drug

use, and mental health concerns, the children were

removed into DCS custody on July 2, 2015. Two weeks

later, then five-month-old Elijah tested positive for

marijuana. In an order entered on September 16, 2015,

the juvenile court adjudicated the children dependent

and neglected.

On November 1, 2016, DCS filed a petition in

circuit court to terminate Parents’ rights to the children, on grounds of (1) abandonment by failure to

provide a suitable home as to both Parents, (2) abandonment by incarcerated parent as to Father, (3) sub1 Both Mother and Father suffer from Hepatitis C, which is

a liver infection caused by the Hepatitis C virus . . . Today,

most people become infected with the Hepatitis C virus

by sharing needles or other equipment to inject drugs.

For . . . 70%-85% of people who become infected with

Hepatitis C, it becomes a long-term, chronic infection

. . . [that] is a serious disease than [sic] can result in

long-term health problems, even death.

Centers for Disease Control and Prevention, Viral Hepatitis,

https://www.cdc.gov/hepatitis/hcv/index.htm, (last visited June

15, 2018).

App.4a

stantial noncompliance with permanency plan as to

both Parents, and (4) persistence of conditions as to

both Parents. Trial was held July 28, 2017, before

the Gibson County Circuit Court, where numerous

witnesses testified.

Tracy White was the child protective service

worker with DCS assigned to investigate the family’s

case when it was initially reported in May 2015.

According to Ms. White’s testimony, Father initially

contacted DCS with concerns about his children. Ms.

White stated that, in Father’s words, “the children

would be better off in the State’s custody than with

[Mother],” and that Father was “currently afraid to

leave them in [Mother’s] care.” During her initial

interview with Parents in May 2015, Ms. White testified

that both Mother and Father admitted they had a

history of drug use, and Father described himself as

a former “crack head.” Both Parents agreed to submit

to an initial drug screen which came back positive for

marijuana and opiates. Ms. White testified that then

five-month-old Elijah also tested positive for marijuana.

Ms. White further stated that Parents reported

several instances of domestic violence to her, including

“physical violence and threatening with knives and

guns” with the most recent incident occurring on May

22, 2015. Ms. White testified that Parents described

the incident as police responding to a “physical altercation” between Father and Cody—during which

Mother brandished a knife and threatened to stab

Father if he hurt her son. Cody reported that Father

was the primary aggressor. Ms. White confirmed that

the two younger children were present during this

incident. Ms. White described another incident where

Father slapped and threw a mug at Mother while she

App.5a

held Damon, shattering glass over Mother and child.

Parents admitted to Ms. White that theirs was “not a

healthy home situation.” Father wanted Mother to get

psychological help, and Father believed he needed

medical treatment for his Hepatitis C. Parents told

Ms. White they would need assistance with the children

in order for that to happen. Ms. White set up counseling

services for Parents and coordinated services through

DCS for Damon, who was developmentally delayed.

By June 2015, conditions with Mother and Father

had not improved. When Ms. White went to meet with

them, “they both agreed that the two of them together

was not a safe environment for the children.” Ms.

White discussed with Mother and Father how they

could keep their children safe and allow the children

to remain in Parents’ custody. Initially, the plan was

for Father to move out. However, Ms. White testified

that Mother reported to DCS that Father “was not

gonna leave” and “wouldn’t let her leave if she tried,”

and so on July 2, 2015, the children were removed

into DCS custody. Following DCS protocol, Ms. White’s

involvement with the case ended once the children

were removed from the home.

Stephanie Richardson was the case worker

assigned when the children came into DCS custody.

She worked with the family from July 2015 to April

2017. Ms. Richardson testified that domestic violence,

substance abuse, and mental health concerns were the

issues that brought the children into DCS custody.

Ms. Richardson helped to develop a permanency plan

with Parents, which is a contract outlining responsibilities and goals for Mother and Father to achieve,

with the end goal in this case aiming to reunify

Parents with their children. Ms. Richardson testified

App.6a

that initially, the permanency plan specified that

Parents pay child support; they were asked to maintain a safe and stable home for the children and asked

to visit regularly with the children; Parents were

asked to complete mental health intakes and follow

through with any recommendations such as counseling;

they were asked to attend counseling to specifically

address domestic violence; they were also asked to

complete an alcohol and drug assessment and any recommended treatment as well as comply with random drug screens; and finally, they were asked to

refrain from illegal drug use and domestic violence.

In July 2015, the children were placed in custody

with the foster parents and began having bimonthly

supervised visits with Parents.

During a visit in January 2016, Ms. Richardson

testified that DCS called law enforcement after Father,

“crying and cursing,” got into the foster parents’ car

with the children and refused to leave. Ms. Richardson

stated that the foster mom came back into the building

to explain what was going on and told Ms. Richardson

that she was scared and didn’t know what to do. The

permanency plan was revised later that month to forbid

Father from putting the children in the car after

visits. It also added that Parents refrain from discussing

the case with the children and required Parents to

complete a psychological evaluation with a parenting

component and follow recommendations. At that time,

Parents had begun parenting classes, and Mother had

one class left to complete.

Parents completed their mental health intakes

in August 2015 and reported to DCS that they attended

counseling from August to December 2015. However,

in January 2016, Ms. Richardson learned that Mother

App.7a

had actually only been to one counseling appointment

and Father had two or three appointments. The counseling center had also permanently discontinued

services for Father due to his multiple absences. In

June 2016, Ms. Richardson followed up with a new

counselor Father was seeing and learned that Father

failed to mention his domestic violence issues to the

counselor, focusing exclusively on his perceived health

problems instead.

Ms. Richardson met regularly with Mother and

Father to discuss their progress in reaching the goals

of the permanency plans. Ms. Richardson testified

that since the children came into DCS custody, Parents

were asked to complete ten to twelve drug screens. In

that time, Mother had one negative drug screen, all

of Father’s were positive, and both Parents refused to

submit to drug screens on multiple occasions. In Ms.

Richardson’s professional opinion, Parents have not

accomplished goals in the permanency plan to create

an environment in which she felt it was reasonably

safe to return the children to Parents’ custody. Specifically, Ms. Richardson testified that neither parent

has consistently attended counseling or addressed

their drug and alcohol issues.

William Beyer is a licensed senior psychological

examiner, health service provider, and licensed professional counselor. Mr. Beyer testified that on March

30, 2016, at the request of DCS, he performed a psychological evaluation with an assessment component

on each of Parents. Mr. Beyer testified that in performing these types of evaluations, he has very little

access to outside information and had to rely solely

on what Mother and Father disclosed to him.

App.8a

Mr. Beyer testified that Mother reported “significant conflicts” in her relationship with Father with

“pretty bad episodes” of domestic violence after the

children were born, but she insisted that it “never got

physical after that.” Mother indicated to Mr. Beyer

that her relationship with Father “had been quite

chaotic and that she was making some attempt to

kind of separate herself from him.” Mr. Beyer’s testimony highlighted a few key points where Mother was

not entirely forthcoming in her evaluation. Mr. Beyer

stated that Mother never told him that she had already

lost custody of two other children, nor did Mother

disclose that she filed several orders of protection

against Father in their ongoing issues with domestic

violence. And while Mother admitted to testing positive

for marijuana after a trip to Colorado, she did not

disclose to Mr. Beyer that she tested positive for

codeine in November 2015 or for methamphetamine

in February 2016.

Mr. Beyer diagnosed Mother with major depressive

disorder, generalized anxiety disorder, and PTSD. He

explained that Mother suffered from “learned helplessness,” where “a long pattern of abuse” causes a

person to feel incapable of “being assertive or escaping.”

Mr. Beyer recommended that Mother receive traumafocused counseling and stressed that it was critical

for her to remain free from alcohol and drugs. Mr.

Beyer further recommended that Mother remain under

psychiatric care in order to address her anxiety and

depression, which are illnesses that “can become progressively worse over time and further impair decision making.” Mr. Beyer opined that moving away

from Father—whose personality would create ongoing

conflicts in raising the children—would be an important

App.9a

step in establishing appropriate boundaries. At the

time of his evaluation, Mr. Beyer testified that Mother

and Father’s relationship did not seem healthy because

of a pattern of conflict between the two.

Mr. Beyer testified that Father was “very fervent”

in his discussions about having Hepatitis C, how

cannabis oil played a significant role in his health,

and that it was a cure for Hepatitis C. Throughout

his interview with Father, Mr. Beyer stated that he

would ask Father a question, and it would repeatedly

lead back to Father’s Hepatitis C and his use of

cannabis oil. Mr. Beyer testified that he had to redirect

Father to stay on topic. Mr. Beyer’s testimony showed

that Father was likewise not entirely honest during

the evaluation. Mr. Beyer testified that while Father

acknowledged using alcohol only prior to the children’s

birth, he claimed to have prescriptions for benzodiazepines and oxycodone and otherwise denied a history

of drug use. Father never disclosed to Mr. Beyer that

he had a history of addiction treatment. When asked

about Elijah testing positive for THC or marijuana in

2015, Father told Mr. Beyer that the only way Elijah

could have tested positive for the drug was that

Father must have transferred some cannabis oil

residue from his finger onto a baby bottle while

cleaning it.

Regarding domestic violence, Father reported to

Mr. Beyer that Mother slapped him and would sometimes call the police on him, but Father denied any

domestic violence since the children’s birth or that

his arguments with Mother were ever physical. However, Mr. Beyer also testified that Father admitted

calling DCS in 2015 with concerns that his children

might suffer “due to the unresolved problems between

App.10a

[Mother] and [Father].” When Mr. Beyer asked Father

about his prior criminal history, Father mentioned

having one criminal charge “during the time [he] was

at [his] sickest,” but neglected to disclose his other

arrests for assault, aggravated assault, vandalism,

and DUI.

Noting that Father found difficulty accepting

responsibility, Mr. Beyer diagnosed Father with a

histrionic personality disorder, potentially overlapping

with narcissistic personality. Mr. Beyer opined that

treatment would be difficult because personality disorders are “very difficult to overcome” even over a

“long time span of intensive counseling,” and those

with a histrionic personality disorder in particular are

“not . . . willing to entertain alternative viewpoints . . .

tend[ing] to place blame on the other individuals for

their own failings or shortcomings.” But Mr. Beyer

felt that treatment would not be impossible, adding

that Father would need to work on controlling his

frustration and his temper, as “his ability to work

effectively with [Mother] and DCS will hinge on his

ability to demonstrate self-control even when he disagrees with others.”

The permanency plan was revised in April 2016

to add the specific treatment recommendations of

Mother and Father’s psychological evaluations with

Mr. Beyer. Mother’s additional action steps required

that she complete therapy to address her depression

and PTSD and remain under the care of a psychiatrist.

Father’s additional action steps required that he

complete counseling to address grief and loss and

controlling his frustration and temper. Due to Father

being “verbally aggressive” toward the foster parents,

App.11a

the team also decided that Father would participate

in Child and Family Team Meetings by phone.

In May 2016, Father moved next door to Mother’s

home in the public housing complex where she lived

after the children’s removal. The following month,

Mother obtained a year-long order of protection against

Father, alleging that he had threatened her and her

brother-in-law with a rifle.

David French, a foster care counselor with Youth

Villages, began supervising the children’s visits with

Father in the summer of 2016 because the foster

parents no longer felt comfortable doing it themselves.

Mr. French described multiple incidents during which

Father became irrational, volatile, and loud during

visitations. Mr. French testified that Father refused

to exit the foster parents’ vehicle on multiple occasions

and sometimes became “verbally aggressive” with the

foster parents. Mr. French stated that Father’s behavior

made the children “fearful” during visits and especially

upset after they were over. Both children experienced

diarrhea on the way to and from visits, and Mr. French

testified that they would not fall into a normal routine

or behavior for several days, during which Damon

would bang his head on the floor and walls. Mr. French

testified that he recommended that Father’s visitation

be stopped “due to the nature of the trauma it was

creating for the children.”

The permanency plan was again revised on June

30, 2016. It added that Parents participate in services

with Youth Villages to address positive parenting

skills and emphasized that they resume the parenting

classes that they had nearly completed.

App.12a

In August 2016, the juvenile court found that

Father was refusing drug screens, attending counseling

only inconsistently, and that he had been “increasingly

noncompliant with [DCS].” That same month, Father

was incarcerated for ten days for violating the order

of protection after Mother gave him a ride to court.

Shortly before DCS petitioned to terminate

Mother’s and Father’s parental rights on November

1, 2016, Parents resumed counseling. Mother inconsistently saw Sonya Goodrich to address Mother’s past

trauma, PTSD, domestic violence issues, and drug use.

While Mother had domestic violence issues with

others, Ms. Goodrich found that Father “was a big

part” of the significant trauma Mother had experienced

throughout her life. Ms. Goodrich testified that Mother

disclosed “severe beatings” by Father prior to the

children’s birth as well as more recent incidents of

domestic violence. In March 2017, Mother reported to

Ms. Goodrich that Father was harassing and stalking

her. Mother also claimed that she had quit using drugs

and was passing her drug screens, which Ms. Goodrich

later discovered was a lie. In actuality, during the

timeframe Mother was seeing Ms. Goodrich, from

October 2016 to April 2017, Mother refused three drug

screens and tested positive for methamphetamine,

amphetamine, and marijuana. Ms. Goodrich ultimately

reported to DCS that Mother did not complete any of

her treatment goals.

On a referral from Ms. Richardson to address the

ongoing domestic violence, Father met with licensed

therapist Alvin Bonds approximately six to eight times

between October 2016 and July 2017. Mr. Bonds

focused his treatment on anger management and

diagnosed Father with severe cannabis use disorder,

App.13a

noting that marijuana was not appropriate for Father

to use while parenting due to its “detrimental” effect

on a parent’s faculties and ability to focus. When asked

whether Father was-willing to stop using cannabis oil

or marijuana, Mr. Bonds testified that Father’s

response was, “not at this time.”

In November 2016, Ms. Richardson set up an

appointment for both Parents to address domestic

violence issues with Mr. Bonds. Mr. Bonds testified

that neither parent reported any physical violence.

Father explained to Mr. Bonds that the children were

removed due to lead poisoning and “consistent turmoil”

between himself and Mother. Father failed to disclose

that the police had been called during his arguments

with Mother or that he had multiple charges for

domestic assault in the previous four years, including

one conviction after the children were born. Neither

Parent disclosed to Mr. Bonds that Elijah had tested

positive for marijuana, and while Father was very

open about his cannabis oil and marijuana use in

treating his Hepatitis C, Father failed to report that

he had also tested positive for methamphetamine in

June 2017. Mr. Bonds stated that Father denied any

substance abuse and denied any physical aggression

towards Mother. Mr. Bonds observed that Mother and

Father’s relationship is “definitely one that is unhealthy, so it is a positive thing they are separated

and no longer together.”

The foster mom testified that the children have

been with her and her husband for a little over two

years. She explained that Damon was developmentally

delayed when he initially came into their custody but

testified that now both boys are above average. The

foster mom described behavioral incidents with the

App.14a

children after visits with Mother and Father. She

stated that the children were “very violent and would

hit each other,” they would get in trouble at school,

and would complain of having stomachaches and

diarrhea. This was consistent after visits with Parents;

however, after the juvenile court suspended visits

with Parents, the foster mom said there was a

noticeable improvement in the children’s behavior.

She testified that Mother admitted being fearful of

Father being around the children, that Mother told

the foster mom she would never leave the children

alone with Father, and that Mother admitted she was

scared of Father because he wouldn’t leave her alone.

The foster mom admitted she also had safety concerns

for herself and the children regarding Father. The

foster mom testified that she and her husband love

the children and have developed a strong bond with

them. If given the opportunity, they would adopt the

children “[i]n a second.”

Father testified that he did everything he felt he

could do in order to regain custody of his children,

stating he “went above and beyond” what DCS asked

him to do in completing goals of the permanency

plans. Father stated that he stopped using marijuana

after the children were taken into DCS custody and

said he would not use marijuana if the children came

back into his custody. This was contrary to what Father

told the various counselors he saw, including Mr.

Bonds and Mr. Beyer. Father denied knowledge of any

instances of domestic violence despite being presented

with police reports from the incidents and denied

having either a drug or alcohol addiction. Father testified he had not used illegal drugs since his children

were born but was later presented with the results of

App.15a

a drug screen from June 2017 in which he tested positive for methamphetamine, which Father then admitted did qualify as an illegal drug. Father reported to

Ms. Richardson as late as March 2017 that he was

still seeing Mother daily and testified at trial that he

“would marry her in a heartbeat” in order to reunite

his family.

Mother testified the reason her children were

removed from the home was domestic violence and

substance abuse. Mother stated that she completed

everything asked of her in the permanency plans

with the exception of having failed multiple drug

screens. Mother admitted that in the past two years,

she has taken nine drug screens and passed only one

of them. All of the other drug screens were positive

for marijuana or THC, opiates or methamphetamine.

Mother testified that at that this time, she does not

have a relationship with Father. Mother stated that

she is currently taking Effexor for depression, which

her regular doctor prescribes. Mother is not currently

seeing a psychiatrist. Mother denied any physical altercations with Father occurring since the children were

born; however, Mother did admit that in May 2015,

she held a knife to protect her older son Cody when

Father and Cody were fighting. She also admitted to

seeking an order of protection against Father in June

2016 after Father threatened her with a rifle. Mother

testified that the foster parents take good care of her

children.

In a written order entered on August 24, 2017,

the circuit court found that DCS had proven the

grounds of abandonment for failure to provide a suitable

home, substantial noncompliance with the permanency

plan, and persistence of conditions as to both Parents

App.16a

and that termination was in the children’s best interest.

The circuit court terminated Mother and Father’s

parental rights to their children.

ISSUES

Mother and Father timely appealed, raising the

following issues which we have condensed and reworded as follows:

1.

Whether the circuit court erred by denying

Father’s motion to disqualify the Guardian ad

litem.

2.

Whether the circuit court properly determined

that grounds existed to support the termination of Mother’s and Father’s parental rights.

3.

Whether the circuit court properly determined

that termination of parental rights was in the

children’s best interest.

STANDARD OF REVIEW

“To terminate parental rights, a trial court must

determine by clear and convincing evidence not only

the existence of at least one of the statutory grounds

for termination but also that termination is in the

child’s best interest.” In re F.R.R., III, 193 S.W.3d

528, 530 (Tenn. 2006); In re Valentine, 79 S.W.3d 539,

546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)).

We review findings of fact made by the trial court de

novo upon the record “accompanied by a presumption

of the correctness of the finding, unless the preponderance of the evidence is otherwise.” In re F.R.R.,

193 S.W.3d at 530 (quoting Tenn. R. App. P. 13(d)).

However, because of the heightened burden of proof

in termination proceedings, this court must make its

App.17a

own determination “as to 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.” In re Carrington H, 483

S.W.3d 507, 524 (Tenn. 2016); In re Bernard T., 319

S.W.3d 586, 596-97 (Tenn. 2010). The trial court’s

ruling regarding whether the evidence sufficiently

supported termination is a conclusion of law, which

we review de novo with no presumption of correctness.

See In re Carrington H., 483 S.W.3d at 524.

ANALYSIS

I.

Guardian Ad Litem

Attorney Betty Scott was appointed as the children’s guardian ad litem in the dependency and

neglect case filed in Gibson County Juvenile Court.

Thereafter, DCS filed a Petition to Terminate Parental

Rights in Gibson County Circuit Court2 and Ms. Scott

was appointed to serve as the guardian ad litem in

that case as well.

On May 10, 2017, Ms. Scott filed a motion to modify Parents’ visitation in the juvenile court case. The

basis for this motion was to cease all fauns of contact

between Parents and children until Parents consistently passed drug screens and otherwise complied with

the permanency plan and demonstrated that Parents

could rationally participate in non-confrontational

meetings over a consistent period of time. But Ms.

2 The termination petition was filed in circuit court while the

dependency and neglect proceedings remained under the jurisdiction of the juvenile court.

App.18a

Scott also included in her motion the following statements about her personal observations:

3.

Attorney Scott has personally witnessed the

parents harassing foster parents before and

after court.

[...]

10. That Mother had an Order of Protection

against Father for several months. Subsequent to a juvenile court hearing last winter,

while the Order of Protection was in effect,

this Guardian Ad Litem specifically asked

Mother if she drove Father to court that

day. Although mother denied it, this Guardian ad Litem observed them driving from

the parking lot together in Mother’s vehicle.

(emphasis added).

On June 14, 2017, the juvenile court heard the

guardian ad litem’s motion to modify Parents’ visitation

and Father’s motion to disqualify the guardian ad

litem. In its order filed July 26, 2017, the juvenile

court denied Father’s motion, specifically noting the

court would not “consider any allegations purported

to be witnessed by the Guardian ad Litem.” The court

also found that suspending Parents’ visitation was in

the children’s best interest “due to Father’s admitted

refusal to submit to drug screens, Mother’s consistent

positive drug screens, the parent’s [sic] non-compliance

with the Family Permanency Plan, and [Father’s] volatile behaviors.”

Meanwhile, on June 26, 2017, Father filed a motion

to disqualify the guardian ad litem in the circuit

court case, arguing that the guardian ad litem had

App.19a

inserted herself as a necessary witness in the dependency and neglect case. On August 4, 2017, the circuit

court denied Father’s motion to disqualify the guardian ad litem. In its order, the court determined that

the guardian ad litem was not a “necessary witness”

as required under Tennessee Supreme Court Rule 8,

Rule of Professional Conduct 3.7(a) and therefore

there was no need to disqualify Ms. Scott.

Father argues the circuit court erred when it failed

to disqualify the guardian ad litem, claiming that the

guardian ad litem began functioning as a “necessary

witness” in the concurrent dependency and neglect

action. The basis for this argument is that the guardian

ad litem filed a motion to modify visitation in the

juvenile court, supported, in part, by her personal

observations of Father harassing the foster parents

before and after court and witnessing Mother and

Father riding in the same car when an order of protection was in place.

Rule of Professional Conduct 3.7(a) precludes a

lawyer from acting as an advocate at trial when the

lawyer is likely to be a “necessary witness.” Tenn. R.

Sup. Ct. Rule 8, RPC 3.7. However, the guardian ad

litem did not testify in the termination proceedings.

Admittedly, she proffered her own testimony via affidavits in support of a motion filed in the juvenile court

dependency and neglect action that was a separate

action in a different court. See Tenn. Code Ann. § 371-103(c); see also In re Kaliyah S., 455 S.W.3d 533,

539 (Tenn. 2015) (holding that termination actions are

distinct from dependency-and-neglect actions).

Admittedly, the guardian ad litem referenced in

her motion to modify visitation in the dependency

and neglect action that she personally witnessed two

App.20a

incidents of noncompliance; however, in making its

ruling, the juvenile court prohibited the guardian ad

litem from testifying in support of her motion and

struck any allegations from the motion that the guardian ad litem purportedly witnessed. The court instead

relied upon a plethora of other evidence—specifically,

the testimony of both Parents, two DCS case workers,

Youth Villages counselor David French, the foster

parents, as well as exhibits and the record as a whole

—in granting the guardian ad litem’s motion to suspend

Parents’ visitation and denying Father’s motion to

disqualify the guardian ad litem. Father’s inability to

cross examine the guardian ad litem on her two noted

observations was harmless. Not only were there multiple witnesses to those observations, but there was

additional evidence to substantiate the circuit court’s

order to terminate parental rights. As such, the guardian ad litem was not a “necessary witness” under

Tennessee Supreme Court Rule 8, Rule of Professional Conduct 3.7(a).

As for the termination action, we find it significant

that had Father not filed a separate motion to disqualify the guardian ad litem in the termination proceeding, the circuit court would not have been aware

that the guardian ad litem personally witnessed

Father’s non-compliance.

Father also argues that the circuit court erred

by permitting the guardian ad litem to operate as an

“unrestricted” Rule 40A guardian. There are two

Tennessee Supreme Court Rules that apply to guardians ad litem: Rule 40 and Rule 40A.

Tennessee Supreme Court Rule 40 sets forth the

powers of guardians ad litem appointed by the juvenile

court in neglect, abuse, and dependency proceedings.

App.21a

Tenn. Sup. Ct. R. 40(a); Runyon v. Zacharias, S.W.3d.

No. W2016-02141-COA-R3-CV, 2018 WL 526712, at *7,

n. 3 (Tenn. Ct. App. Jan. 23, 2018), appeal denied (May

17, 2018) (“Rule 40 only applies to ‘neglect, abuse

and dependency proceedings’ in juvenile court.”).

Guardians appointed under Rule 40 have broad

authority to perform any activities that could be expected of any attorney participating in a trial, including petitioning the court on the child’s behalf, participating in formal discovery, making opening statements

and closing arguments, examining witnesses in court,

filing briefs and legal memoranda, and preparing

and submitting proposed findings of fact and conclusions of law. Tenn. Sup. Ct. R. 40(d). Here, the guardian ad litem’s motion to modify visitation was filed

in the juvenile court in compliance with Tennessee

Supreme Court Rule 40.

Tennessee Supreme Court Rule 40A applies to

custody proceedings. See Tenn. Sup. Ct. R. 40A § 3(a);

see also Runyon, 2018 WL 526712, at *3 (“Rule 40A

authorizes the trial court presiding over a custody

proceeding to appoint an attorney as a guardian ad

litem”). Before the rule was amended in 2011, a guardian ad litem’s role was more limited. For example,

they could not “make opening and closing statements

or examine witnesses in court.” In re Jonathan S. CB, No. M2010-02536-COA-R3-JV, 2012 WL 3112897, at

*21 (Tenn. Ct. App. July 31, 2012). It appears Father

has relied on this previous version of Rule 40A in

arguing that the circuit court erred here by designating

the guardian ad litem as “unrestricted.”

Rule 40A specifies that “the guardian ad litem

now functions as a lawyer, not as a witness or special

master,” Tenn. Sup. Ct. R. 40A, § 9 (Commentary), and

App.22a

may “take any action that may be taken by an attorney representing a party pursuant to the Rules of

Civil Procedure.” Tenn. Sup. Ct. R. 40A, § 9(b), Potter

v. Paterson, No. E2013-01569-COA-R3-CV, 2014 WL

2442776, at *7 (Tenn. Ct. App. May 28, 2014). Therefore, the circuit court was well within its discretion to

designate the guardian ad litem in this case as

“unrestricted” under Rule 40A.

II.

Grounds for Termination

A. Abandonment by Failure to Provide a Suitable

Home

Abandonment is a statutory ground for termination

of parental rights. See Term. Code Ann. § 36-1-113(g)

(1). Tennessee Code Annotated section 36-1-102 defines

“abandonment,” in relevant part, as

The child has been removed from the home

of the parent or parents . . . as the result of

a petition filed in the juvenile court in which

the child was found to be a dependent and

neglected child . . . and the child was placed

in the custody of the department or a licensed

child-placing agency . . . and for a period of

four (4) months following the removal, the

department or agency has made reasonable

efforts to assist the parent or parents . . . to

establish a suitable home for the child, but

that the parent or parents . . . have made no

reasonable efforts to provide a suitable home

and have demonstrated a lack of concern for

the child to such a degree that it appears

unlikely that they will be able to provide a

suitable home for the child at an early date.

App.23a

The efforts of the department or agency to

assist a parent . . . in establishing a suitable

home for the child may be found to be reasonable if such efforts exceed the efforts of

the parent . . . toward the same goal, when

the parent . . . is aware that the child is in

the custody of the department;

Tenn. Code Ann. § 36-1-102(a)(ii). . . In order for a home

to be considered suitable, a parent or guardian must

provide more than an appropriate physical dwelling

structure. In re Hannah H., No. E2013-01211-COAR3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June

10, 2014). The home must also be free from drugs and

domestic violence. Id. A parent’s compliance with counseling requirements is also “directly related to the

establishment and maintenance of a suitable home.” In

re Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL

1621076, at *7 (Tenn. Ct. App. Apr. 20, 2016) (quoting

In re M.F.O., No. M2008-01322-COA-R3-PT, 2009 WL

1456319, at *5 (Tenn. Ct. App. May 21, 2009)).

The circuit court found that DCS made reasonable

efforts to assist both Mother and Father with establishing a suitable home for the children. Further, the

circuit court found that Mother and Father have made

no reasonable efforts to provide a suitable home and

that a suitable home will likely not be provided in

the near future. In its order, the court stated:

[T]he parents continue to use drugs, and fail

to acknowledge, much less address, the underlying issues of anger and domestic violence

which caused the children to be removed

from their home. [Mother] has failed 8 drug

screens for various drugs including marijuana,

codeine, and methamphetamine; passed one

App.24a

drug screen; and refused to submit to 4 drug

screens since the children have been in DCS

custody. [Father] has failed 5 drug screens

for marijuana; on June 30, 2017, failed for

Methamphetamines drug screens and marijuana; and has refused five during the time

the children have been in DCS custody.

[Father] refuses to acknowledge the domestic

violence incidents between him and [Mother]

that have occurred since the children were

born. [Mother] has acknowledged to various

people the abusive relationship that occurred

prior to the children being removed and the

incidents since then but she has minimized

or failed to address those issues in counseling or even at today’s hearing.

The circuit court went on to comment that the

domestic violence issues with Parents are still ongoing,

and that Parents have not been forthcoming about their

continued drug use. Specifically, the circuit court noted

it was “concerned with [Father’s] adoration of marijuana and his continuing pattern of irrational angry

outbursts,” and went on to say

The children have been in the custody of

[DCS] for approximately 24 months and

during that time the parents have made little

to no efforts to change the conditions in

their lives or homes to enable to allow the

children to return to their home despite reasonable efforts from [DCS] to assist them to

do so. The children are in a safe and stable

home with their foster parents and a change

in caregivers would be detrimental to them.

App.25a

We agree with the circuit court’s finding that

DCS made reasonable efforts to assist Mother and

Father in establishing a suitable home for the children

and that Mother and Father failed to provide a suitable

home for the children. See Tenn. Code Ann. § 36-1113(g)(1). Therefore, we have determined that DCS

established this ground for termination by clear and

convincing evidence.

B. Substantial Non-Compliance with Permanency

Plans

We next consider whether DCS presented clear and

convincing evidence to support the ground of substantial

non-compliance with the permanency plans. This

ground is met when “[t]here has been substantial

noncompliance by the parent or guardian with the

statement of responsibilities in a permanency plan[.]”

Tenn. Code Ann. 36-1-113(g)(2). To establish substantial noncompliance, the court must initially find “that

the requirements of the permanency plan are reasonable and related to remedying the conditions that

caused the child to be removed from the parent’s

custody in the first place,” In re MJB., 140 S.W.3d 643,

656 (Term. Ct. App. 2004); In re Valentine, 79 S.W.3d

539, 547 (Tenn. 2002), and second, that the parent’s

noncompliance is substantial. In re S.H., No. M200701718–COA–R3–PT, 2008 WL 1901118, at *7 (Tenn.

Ct. App. Apr. 30, 2008) (no Tenn. R. App. P. 11 application filed). Mere technical noncompliance does not

justify the termination of parental rights. In re

Valentine, 79 S.W.3d at 548. The noncompliance must

be weighed in light of the degree of noncompliance

and the importance of the requirement not met. Id.

at 548-549.

App.26a

The initial permanency plan required that Parents

(1) complete a mental health intake and follow recommendations; (2) sign releases with providers; (3)

complete counseling to specifically address domestic

violence issues and follow recommendations; (4) refrain

from domestic violence; (5) have a safe and stable

residence; (6) refrain from illegal drug use and seek

medical care not requiring illegal drug use; (7) have

valid prescriptions for any medications they are taking

and complete pill counts; (8) complete alcohol and

drug assessments and complete recommended treatment and services; (9) submit to random drug screening

and pass all screens with negative results; (10) provide DCS with names and contact information for any

relatives who may be willing to care for the children;

and (11) complete parenting assessments and any recommended counseling or parenting education. The

plan was revised to add that (12) Father not put the

children in the car after visits; (13) Parents refrain

from discussing the case with the children; (14)

complete a psychological evaluation with a parenting

component and follow recommendations; (15) complete

the specific treatment recommendations of their psychological evaluations; and (15) participate in services

with Youth Villages to address positive parenting

skills. These goals were reasonably related to helping

Mother and Father address their drug abuse and

domestic violence issues in order to provide a safe and

stable home environment for their children. Mother

signed all of the plans and participated in their

development. Father signed and participated in the

first two plans but declined to participate in the April

and June 2016 revisions.

App.27a

Despite nearly two years of services and support

from DCS, Parents made virtually no progress toward

addressing their issues with domestic violence, mental

health, and drug abuse, demonstrating such a lack of

concern for the welfare of their children that these

conditions are unlikely to be remedied at an early

date. See In re T.S., No. M1999-01286-COA-R3-CV,

2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)

(“Where, as here, efforts to provide help to improve the

parenting abilities, offered over a long period of time,

have proved ineffective, the conclusion that there is

little likelihood of such improvement as would allow

the safe return of the child to the parent in the near

future is justified.”)

Parents failed to comply with the plans’ mental

health requirements. Neither Parent attended counseling more than sporadically until October 2016—the

month prior to DCS’s November 2016 termination

petition—and even then, their attendance was infrequent or intermittent. When they did meet with

treatment providers, Parents were evasive and consistently failed to disclose the extent of their drug use

and histories for domestic violence. Neither Parent

completed the treatment recommended by their psychological evaluations.

Parents also failed to comply with those requirements addressing their issues with drug abuse. Other

than one negative drug screen in the summer of 2016,

Mother consistently tested positive for marijuana and

methamphetamine. She refused four screens—including three of her last four—and failed her most recently

completed screen in February 2017 for methamphetamine, amphetamine, and marijuana. Father refused

at least five screens and otherwise consistently

App.28a

tested positive for marijuana and benzodiazepines,

for which he never provided a prescription. On June

30, 2017—less than a month before trial—he failed

for methamphetamine and THC.

The circuit court found that the requirements of the

permanency plans were reasonable and related to the

issues necessitating foster care. Parents signed the

Criteria & Procedures for Termination of Parental

Rights, which explained that failure to comply with

the permanency plans was grounds for termination,

but they accomplished virtually none of the plans’

requirements. Accordingly, we find clear and convincing

evidence in the record which supports the circuit

court’s conclusion that Parents failed to substantially

comply with the requirements of the permanency plans.

C. Persistence of Conditions

We next consider whether the circuit court erred in

finding clear and convincing evidence to support the

ground of persistence of conditions. This ground for

termination occurs when

[t]he child has been removed from the home

of the parent or guardian by order of a court

for a period of six (6) months and:

(A) The conditions that led to the child’s removal

or other conditions that in all reasonable

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

therefore, prevent the child’s safe return to

the care of the parent or parents or the guardian or guardians, still persist;

(B) There is little likelihood that these conditions will be remedied at an early date so

App.29a

that the child can be safely returned to the

parent or parents or the guardian or guardians in the near future; and

(C) The continuation of the parent or guardian

and child relationship greatly diminishes

the child’s chances of early integration into

a safe, stable and permanent home. . . .

Tenn. Code Ann. § 36-1-113(g)(3).

Here, the children were removed from the home

in July 2015 and adjudicated dependent and neglected

on September 16, 2015; therefore this ground is clearly

applicable. The circuit court noted in its findings of

fact that,

[t]he children have been in the custody of

[DCS] for approximately 24 months and

during that time the parents have made little

to no efforts to change the conditions in their

lives or homes to enable to allow the children to return to their home despite reasonable efforts from [DCS] to assist them to do

so. The children are in a safe and stable

home with their foster parents and a change

in caregivers would be detrimental to them.

Further, the circuit court determined that the

children have been removed from Parents for more than

six months, the conditions which led to their removal

would likely subject the children to further abuse or

neglect, and that there was little likelihood that the

conditions would be remedied in the near future in

order to safely return the children to Parents’ custody.

Tenn. Code Ann. § 36-1-113(g)(3).

App.30a

As previously discussed, the reasons for removing

the children from Parents’ custody were drug abuse

and domestic violence. Father’s counselor Alvin Bonds

testified that Parents’ relationship was unhealthy

and that it was a positive that they were no longer

together. Another counselor, Mr. Beyer, testified that

Parents’ relationship did not seem healthy because of

the pattern of conflict between the two. As late as

March 2017, Mother reported to her counselor, Ms.

Goodrich, that Father was harassing and stalking her.

That same month, Father reported to Ms. Richardson

that he was still seeing Mother daily, and even testified

at trial that he “would marry [Mother] in a heartbeat”

in order to reunite his family. It is clear from the

record that both Parents downplay the recurring

domestic violence issues, and there is little likelihood

this condition would be remedied in the near future.

See Tenn. Code Ann. § 36-1-113(g)(3).

Regarding their drug use, the circuit court was

concerned about what it characterized as Father’s

“adoration of marijuana.” Father told Mr. Bonds that

he was not willing to stop using cannabis or marijuana,

despite the counselor advising Father that the drug

could impact Father’s ability to focus and detrimentally

affect his ability to parent. In the past two years,

Father has not had a single negative drug screen,

refusing several of the tests. Mother admitted that in

the past two years, she took nine drug screens and

passed only one of them. All of the other drug screens

were positive for marijuana or THC, opiates, or

methamphetamine.

It is clear from the evidence presented that Parents

were given numerous opportunities and resources

through DCS to receive counseling and pass random

App.31a

drug screens with negative results. Despite this,

throughout a two-year period both Parents consistently

tested positive for illegal drugs, and hence the conditions that led to the children’s removal still persist.

See Tenn. Code Ann. § 36-1-113(g)(3). Thus we agree

that the evidence supports the circuit court’s ruling on

this ground for termination.

III. Best Interest

After at least one ground for parental termination

has been established by clear and convincing evidence,

the court must determine whether termination is in the

child’s best interest. Tenn. Code Ann. § 36-1-113(c)(1)(2); White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.

App. 1994). In making that determination, “[t]he

child’s best interests must be viewed from the child’s,

rather than the parent’s, perspective.” In re Audrey

S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005). Our

legislature has identified nine statutory factors for

the court to consider in conducting a best-interests

analysis. They include:

(1) Whether the parent or guardian has made

such an adjustment of circumstance, conduct,

or conditions as to make it safe and in the

child’s best interest to be in the home of the

parent or guardian;

(2) Whether the parent or guardian has failed

to effect a lasting adjustment after reasonable efforts by available social services

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

possible;

App.32a

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

the child;

(4) Whether a meaningful relationship has otherwise been established between the parent or

guardian and the child;

(5) The effect a change of caretakers and physical

environment is likely to have on the child’s

emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other

person residing with the parent or guardian,

has shown brutality, physical, sexual, emotional or psychological abuse, or neglect

toward the child, or another child . . .

[...]

App.33a

ORDER OF THE CIRCUIT COURT OF

TENNESSEE FOR THE TWENTY-EIGHTH

JUDICIAL DISTRICT AT TRENTON

TERMINATING PARENTAL RIGHTS OF

JAMIE WILLIAMS AND MICHAEL BROOKS AND

PLACING DAMON BROOKS AND ELIJAH BROOKS

IN THE FULL GUARDIANSHIP OF

THE STATE OF TENNESSEE,

DEPARTMENT OF CHILDREN'S SERVICES

(AUGUST 24, 2017)

IN THE CIRCUIT COURT OF TENNESSEE

FOR THE TWENTY-EIGHTH JUDICIAL

DISTRICT AT TRENTON

________________________

STATE OF TENNESSEE

DEPARTMENT OF CHILDREN’S SERVICES,

Petitioner,

v.

JAMIE WILLIAMS and MICHAEL BROOKS,

Respondents.

________________________

In the Matter of:

DAMON BROOKS, DOB: XX-XX-13

ELIJAH BROOKS, DOB: XX-XX-15

A Child Under 18 Years of Age

________________________

No. 8885

App.34a

Before: Clayburn PEEPLES, Judge.

This matter was heard on the Petition to Terminate Parental Rights on July 28, 2017, before the

Honorable Clayburn Peeples, Judge of the Circuit

Court of Gibson County, Tennessee, at Trenton. Based

upon the statements of counsel, testimony given, the

exhibits entered into evidence, and the record as a

whole the Court finds as follows by clear and convincing

evidence:

The parties present before the Court were: Jamie

Williams and Michael Brooks, parents of the minor

children; Harold Gunn, attorney for Jamie Williams;

Alex Camp, attorney for Mr. Brooks; Betty Scott,

Guardian ad Litem; Stephanie Richardson, DCS case

manager; and Tiffany Evans and Kelly Keylon, attorneys for the Department.

At the time of the filing of the Petition there were

no individuals registered with the Putative Father’s

Registry as potential fathers of the minor child and no

fathers have come forth during the pending proceedings.

The Department has alleged that Jamie William’s

parental rights should be terminated on the grounds

of abandonment due to failure to provide a suitable

home, substantial non-compliance with the permanency

plans, and persistence of conditions. The Department

has proven each ground alleged by clear and convincing

evidence. The Department has alleged that Michael

Brook’s parental rights should be terminated on the

grounds of abandonment due to failure to provide a

suitable home, abandonment by incarcerated parent

due to wanton disregard, substantial non-compliance

App.35a

with the permanency plans, and persistence of conditions. The Department has proven by clear and convincing evidence the grounds of abandonment due to

failure to provide a suitable home, substantial noncompliance with the permanency plans, and persistence

of conditions. The Department failed to prove the

ground of abandonment by incarcerated parent due to

wanton disregard by clear and convincing evidence.

For the reasons set forth below, based upon clear

and convincing evidence, the Court concludes that

the Petition filed by the Department is well taken

and should be sustained for the relief sought against

the Respondents. Accordingly, the Court concludes

that their parental rights to the child should be

terminated and that such termination is in the child’s

best interest.

I.

Findings of Fact and Conclusions of Law as to the

Respondents

A. Findings of Fact

As required by Tenn. Code Ann. § 36-1-113(k),

the Court makes the following findings of fact by

clear and convincing evidence based on the testimony

of Will Beyer, David French, Tracy White, Sonja

Goodrich, Alvin Bonds, Carol Carter, Jamie Williams,

Michael Brooks, Kelly Reynolds and Stephanie Richardson; the exhibits presented during the trial of this

cause; and the entire record. The following Exhibits

were entered into evidence:

1.

Collective Exhibit 1:

a.

Birth Certificate for Damon Brooks

b.

Birth Certificate for Elijah Brooks

App.36a

c.

Putative Father Registry Response for

Damon Brooks

d.

Putative Father Registry response for

Elijah Brooks

e.

Petition for Temporary Legal Custody filed on July 2, 2015

f.

Ex Parte Protective Custody Order filed

on July 2, 2015

g.

Affidavit of Reasonable Efforts filed July

2, 2015

h.

Order entered July 8, 2015

i.

Permanency Plan developed on July 30,

2015

j.

Criteria and Procedures for Termination

of Parental Rights

k.

Order for adjudication entered on September 16, 2015

l.

Affidavit of Reasonable Efforts filed

November 13, 2015

m. Order ratifying permanency plan entered

on November 30, 2015

n.

Permanency Plan developed on January

19, 2016

o.

Criteria and Procedures for Termination

of Parental Rights

p.

Permanency Plan developed on April 6,

2016

q.

Criteria and Procedures for Termination

of Parental Rights

App.37a

r.

Order ratifying permanency plan entered

on May 11, 2016

s.

Permanency Plan developed June 30,

2016

t.

Affidavit of Reasonable Efforts filed

August 5, 2016

u.

Order ratifying permanency plane entered on August 26, 2016

v.

Permanency Plan developed December 6,

2016

w.

Criteria and Procedures for Termination

of Parental Rights

x.

Certified Copies of Michael Brooks’ criminal record

y.

Certified Copies of Jamie Williams’ criminal record

z.

Order ratifying permanency plan entered

on May 9, 2017

aa. Order terminating visitation with

parents entered July 26, 2017

bb. Elijah Brooks drug screens

cc. Michael Brooks drug screens dd. Jamie

Williams drug screens

2.

Exhibit 2—Revelation of Hope records

3.

Exhibit 3—Collective exhibit of 3 of Jamie

Williams’ drug screens

The child, Damon Michael Brooks, was born to

Jamie Lee Williams and Michael Andrew Brooks on

August 1, 2013, in Jackson, Madison County, Ten-

App.38a

nessee. The child, Elijah Andrew Brooks, was born to

Jamie Lee Williams and Michael Andrew Brooks, on

January 27, 2015, in Jackson, Madison County, Tennessee. The children entered DCS custody on July 2,

2015.

At the time of the removal there were domestic

violence concerns between the parents; drug use by

the parents; the youngest child, Elijah, tested positive

for marijuana; and mental health concerns for both

parents. Mr. Brooks had reported a history of drug

use, referring to himself as a “crackhead,” but denied

any current use other than marijuana. He reported

he was using marijuana medicinally and it had saved

his life. There had been altercations between Mr.

Brooks and Cody Williams, the oldest child of Ms.

Williams. During one particular altercation May 22,

2015, Ms. Williams was using a butcher knife to protect

Cody from Mr. Brooks. Mr. Brooks made comments to

service providers that he sometimes thought about

killing or poisoning Cody due to resentment toward

him. Initially the parents were allowed to make a

plan that Mr. Brooks would leave the home but Mr.

Brooks then refused to leave the home. The parents

agreed the children were not safe in their home and

the children were subsequently placed in DCS custody.

A permanency plan was developed for the family on

July 30, 2015 which listed what the parents needed

to do in order to regain custody of the children. The

Respondents were to achieve the following desired

outcomes: have good mental health and a relationship

free of domestic violence; be able to provide a safe

and stable environment for the children; have stable

health and provide the children a safe and drug free

home; and he able to positively parent their children

App.39a

and be free of ongoing conflict. In order to do this

they were to complete counseling to address domestic

violence; complete a mental health intake and follow

all recommendations; have a safe and stable home;

refrain from any acts of domestic violence; refrain

from drug use, submit to random drug screens and test

negative for all illegal substances and pill counts;

complete an alcohol and drug assessment and follow

all recommendations, and sign releases so DCS can

monitor progress.

Jamie Williams signed the plan on July 30, 2015,

and Michael Brooks signed the plan on August 19, 2015.

The plan was ratified by the Juvenile Court on

November 30, 2015, as in the children’s best interest

and the court found that the requirements for the

Respondents were reasonably related to remedying the

reasons for foster care. Since the children have been

in DCS custody 5 permanency plans have been developed for the family and the requirements on the subsequent plans were substantially similar to those in

the initial plan with the exception of a psychological

evaluation with a parenting assessment being added

to the permanency plan. The parents participated in

the development of each permanency plan.

Stephanie Richardson testified that she was the

assigned family service worker from July 2015 to April

2017. She testified that neither Ms. Williams nor Mr.

Brooks consistently attended counseling and when they

did attend they reported false information to which

made it an insignificant attempt to address the underlying issues with the family, specifically the domestic

violence. Ms. Richardson eventually was able to locate

Alvin Bonds to provide counseling for Mr. Brooks and

at the time of trial Mr. Brooks had been seeing Mr.

App.40a

Bonds for approximately 8 months. But through the

testimony of Mr. Bonds it was determined Mr. Brooks

was not forthcoming with his drug history nor the

history of domestic violence between himself and Ms.

Williams which resulted in yet another insignificant

attempt to address the issues he is seeing Mr. Bonds

for.

Shortly after the children were removed Ms.

Williams relocating to a new home. However, Mr.

Brooks eventually relocated to the same housing

project. Mr. Brooks has described going to her home

to have coffee and discuss the children every day. Ms.

Williams describes the contact as unwelcome, but

reported it is easier to “make nice” with Mr. Brooks.

Ms. Richardson has met several times with the

parents to go over the permanency plans and to assess

the status of their progress. She has explained multiple

times to the parents what needs to be accomplished

to make it safe for the children to return home and

has offered assistance in achieving the goals. However,

the parents continue to use drugs, and fail to acknowledge, much less address, the underlying issues of

anger and domestic violence which caused the children

to be removed from their home. Ms. Williams has

failed 8 drug screens for various drugs including marijuana, codeine, and methamphetamine; passed one

drug screen; and refused to submit to 4 drug screens

since the children have been in DCS custody. Mr.

Brooks has failed 5 drug screens for marijuana; on

June 30, 2017, failed for methamphetamines and

marijuana; and has refused five drug screens during

the time the children have been in DCS custody. Mr.

Brooks refuses to acknowledge the domestic violence

incidents between him and Ms. Williams that have

App.41a

occurred since the children were born. Ms. Williams

has acknowledged to various people the abusive relationship that occurred prior to the children being

removed and the incidents since then but she has

minimized or failed to address those issues in counseling or even at today’s hearing.

There have been ongoing issues of domestic violence since before the birth of the children. Although

they separated shortly after the birth of the children

the issues are still ongoing. In June of 2016, Ms.

Williams obtained an order of protection after she

alleged Mr. Brooks threatened her with a gun, which

she subsequently dropped. Ms. Williams disclosed to

Sonja Goodrich, her counselor from January of 2017

until April of 2017, severe beatings by Mr. Brooks

prior to the children being born. However, she, nor

the father, acknowledge domestic violence between

them after the children were born. This failure results

in the counselors being able to adequately address

the issues in order to make it safe for the children to

reside in the home per both Mr. Bonds and Ms.

Goodrich.

The mother also failed to disclose the extent of

her drug abuse to Ms. Goodrich. She disclosed she

was passing drug screens when in reality she had only

passed one drug screen in two years.

Will Byer completed a psychological assessment

with a parenting component on both parents. In the

evaluation completed on Ms. Williams, she did not

acknowledge her current drug use, or the instances of

domestic violence that have occurred between her and

Mr. Brooks since the children were born. She also

failed to notify Mr. Beyer that she had lost custody of

two other children. Even though she was not entirely

App.42a

forthcoming in her evaluation he was able to diagnose

her with major depressive disorder, generalized anxiety,

and post-traumatic stress disorder. He opined she

has demonstrated learned helplessness which makes

it difficult for her to leave an abusive situation as

well as her lack of sobriety which would impact the

children. He recommended she receive therapy, specifically trauma focused or EMDR counseling; she be

free from alcohol and or drugs; receive psychiatric

and counseling services; develop a respite plan; and

participate in training on how to parent a child with

developmental delays.

During his evaluation Mr. Brooks reported a

diagnosis of Hepatitis C that he was treating with

marijuana; he denied a history of drug use; and he

reported alcohol use prior to the birth of the children.

He also reported that prior to the children being born

Ms. Williams would slap him but stated there had been

no domestic violence between them since the birth of

the children. Mr. Beyer diagnosed him with a Histrionic

personality which overlaps with a narcissistic personality. He opined that treating Mr. Brooks would be

difficult, but not impossible and would require the

cooperation of Mr. Brooks. Mr. Beyer stated that if

the parents did not report the domestic violence accurately, there is a concern with the children returning

home because the issue has not been addressed. He

also stated that the assessment would be impacted

how forthcoming and honest the parents were.

David French is the children’s counselor and

supervised visits between Mr. Brooks and his children.

During visitation Mr. Brooks had to be redirected

due to discussing the case with and/or in the presence

of the children. Mr. Brooks would sometimes become

App.43a

upset and display irrational concern over the condition

of the visitation room or the foster parent’s vehicle.

Mr. French described Mr. Brooks as volatile, irrational,

and loud in visitation and that his behavior upset the

children. Before visits the children would have diarrhea.

During or after visits they would cry and Damon would

bang his head and hit others. They would have difficulty

sleeping for 3 to 5 days after the visits and become

withdrawn. Mr. French had recommended the visits

stop due to the impact Mr. Brooks’ behavior was having

on the children. Since the visitation was stopped by

the Juvenile Court the children’s behaviors have greatly

improved if not resolved. Mr. French said the children

are stable and happy in the foster home.

Mr. Brooks has been seeing Alvin Bonds for

therapy and has seen him between 6 and 8 times since

November 2016. They have been addressing anger

issues and Mr. Bonds believed Mr. Brooks had been

making progress. On one occasion Ms. Williams and

Mr. Brooks had a joint session with him in order for

Mr. Bonds to have Ms. Williams discuss with issues

as well. He did not feel that the relationship between

Mr. Brooks and Ms. Williams was healthy. Mr. Bonds

was not aware of the physical aggression by Mr. Brooks

toward Ms. Williams nor of his recent methamphetamine use. He also noted that Mr. Brooks has no intention of not using cannabis. Mr. Bonds opined that

drug use, including cannabis, and Mr. Brooks anger

can be detrimental to the children.

Mr. Brooks stated he is in a brand new home that

is appropriate for the children to reside in. He denied

any ongoing relationship with Ms. Williams beyond

what is necessary to co-parent and he also denied any

physical altercations between himself and Ms. Williams.

App.44a

He stated that until recently he did not understand

the meaning of domestic violence as DCS was using

it and thought it only referred to physical altercations. He believes he has gone above and beyond to

complete services recommended for him in order to

have his children returned to him. When asked about

his methamphetamine use, Mr. Brooks stated he had

a weak moment and used methamphetamine on one

occasion recently with an old friend. When asked

about Elijah testing positive for marijuana at the

time of removal he stated he probably had cannabis

oil on his finger when cleaning a bottle.

Ms. Williams also believed she was in substantial

compliance with the permanency plans. When asked

about her positive drug screens she stated it was the

result of her working in a bar, but she has not worked

in the bar for over a year at the time of trial. With

regards to the methamphetamine she was positive for

on multiple drug screens, she attributed that to her

medication.

The Department has referred the parents for

services; provided in-home counseling for the mother,

assisted the father in locating a counselor to accept

his insurance, requested random drug screens and

provided such to the parents; and has offered to assist

with any other needed services. However, the parents

refused to take advantage of the services offered by

the department to have any meaningful impact on

improving their situation; nor did either parent acknowledge how totally inadequate their refusal to take

blame for this situation. The Court is concerned with

Mr. Brooks’ adoration of marijuana and his continuing pattern of irrational angry outbursts.

App.45a

The children have been in the custody of the

Department for approximately 24 months and during

that time the parents have made little to no efforts to

change the conditions in their lives or homes to enable

to allow the children to return to their home despite

reasonable efforts from the Department to assist them

to do so. The children are in a safe and stable home

with their foster parents and a change in caregivers

would be detrimental to them.

When the children were removed on July 2, 2015

they were placed in the home of Carol Carter and her

husband. When the children first came to the live

with the Carters Elijah cried a great deal and Damon

was physically aggressive and at times lay in the

floor and screamed. The children were violent after

visits with their parents and had stomach issues that

consistently appeared when the children would have

a visit with their parents. Damon also hit Mr. Brooks

at the first few visits when Mr. Brooks would pick

him up. In one instance pictures of the parents were

up in the foster home and Damon started exhibiting

anxiety and stated “daddy scary”. Once the picture

was removed Damon calmed down. The children’s

behaviors have improved since being in the home of

the Carters.

The Carters attempted to be a support to the

biological parents and invited them to come to their

home one weekend for a cookout. That invitation was

only extended once due to Mr. Brooks’ behaviors in

meetings and visits. When the parents came to the

hospital because one of the children was having a

procedure they appeared to be confused and distracted

and Mr. Brooks ended up in the emergency room for

some reason Ms. Williams confided in Mrs. Carter that

App.46a

she would never leave her children alone with Mr.

Brooks. She further stated Mr. Brooks will not leave

her alone.

Mrs. Carter and her husband would like to adopt

the children if they become available for adoption.

The children are bonded with them and they are doing

well in their home.

B. Conclusions of Law

Under Tennessee law, termination of parental

rights must be based on a finding by the court and

clear and convincing evidence that (1) the grounds for

termination of parental rights have been established;

and (2) termination of the parent’s or guardian’s rights

is in the best interest of the child. T.C.A. § 36-1-113(c).

Here, the Court concludes that there is clear and

convincing evidence to support grounds for termination

of the Respondents’ parental rights under T.C.A. § 36-1113(g). In addition, the Court concludes, based on clear

and convincing evidence that termination of Respondents’ parental rights is in the child’s best interest.

1. Abandonment-Failure to Provide a Suitable Home

Based on the facts set forth above and pursuant

to T.C.A. § 36-1-113(g)(1), the Court concludes and

finds that grounds for Termination of Parental Rights

do exist as to Jamie Lee Williams and Michael Andrew

Brooks, by clear and convincing evidence, based on

abandonment by the parent or guardian for failure to

provide a suitable home for the child as defined by

T.C.A. § 36-1-102. The children were removed from

the home of Jamie Lee Williams and Michael Brooks

App.47a

and were found to be dependent and neglected by the

Juvenile Court of Gibson County Tennessee. The

children were placed in the custody of the Department

and the Department made reasonable efforts to assist

Ms. Williams and Mr. Brooks in making their home

suitable for the children but they failed to make any

reasonable efforts to provide a suitable home for the

children at an early date and at the time of trial had

not established a suitable home for the children as is

more fully explained above.

2. Substantial Non-Compliance with the

Permanency Plan

Based on the facts set forth above, the Court

concludes and finds that grounds for Termination of

Parental Rights do exist as to Jamie Lee Williams

and Michael Andrew Brooks, by clear and convincing

evidence, pursuant to T.C.A. § 36-1-113(g)(2), based

upon substantial noncompliance by Ms. Williams and

Mr. Brooks, with the statement of responsibilities in

the permanency plans pursuant to the provision of

title 37, chapter 2, part 4. The responsibilities set forth

in the permanency plans devised for the child were

reasonably related to remedying the conditions, which

necessitated foster care. Neither Ms. Williams or Mr.

Brooks demonstrated compliance with a single desired

outcome on the permanency plans and with regards

to the action steps, the only counseling or evaluations

they participated in they provided inaccurate or false

information as is more fully detailed above.

3. Persistence of Conditions

Based on the facts set forth above, the Court

concludes and finds that grounds for Termination of

App.48a

Parental Rights do exist as to Jamie Lee Williams

and Michael Andrew Brooks, by clear and convincing

evidence, pursuant to T.C.A. § 36-1-113(g)(3), because

the children have been removed from the home of Ms.

Williams and Mr. Brooks by order of this Court for

more than six (6) months and, the conditions which

led to the children’s removal or other conditions

which in all reasonable probability would cause the

children to be subjected to further abuse or neglect

and which, therefore, prevent the children’s safe

return to the care of the parents, still persist; and,

there is little likelihood that these conditions will be

remedied at an early date so that the children can be

safely returned to the parents in the near future;

and, the continuation of the parent and child relationship greatly diminishes the children’s chances of

early integration into a safe, stable and permanent

home as is more fully described above.

4. Best Interest

Under Tennessee law, the Court is required to find

that termination of parental rights is in the children’s

best interest by clear and convincing evidence. T.C.A.

§ 36-1-113(i)(1). Here, the Court concludes that termination as to Respondents’ is in the children’s best

interest by clear and convincing evidence.

Ms. Williams and Mr. Brooks have failed to make

such an adjustment of circumstance, conduct, or condition as to make it safe and in the child’s best interests to be in the home of the parent or guardians. The

parents have failed to effect a lasting adjustment

after reasonable efforts by DCS and it does not appear

possible that a lasting adjustment will occur. They

have failed to accept responsibility for the situation

App.49a

as it is now. The parents did not take visitation as

seriously as they should have and the children’s behaviors have improved since the visitation has been

terminated. The parents continue to test positive for

illegal drugs that render them unable to care for the

child in a safe and stable home. A change in caregivers and physical environment is likely to be detrimental to the children as they are doing well in the

home of their foster parents who wish to adopt them.

IT IS, THEREFORE, ORDERED, ADJUDGED

AND DECREED:

1.

That there is clear and convincing evidence

that grounds for termination of parental

rights exist, as more clearly described above

and that there is clear and convincing evidence that it is in the best interests of the

children that all parental rights be terminated and the children freed for adoption,

based on the testimony as described above.

2.

Therefore, all parental rights which the

Respondents have to the children, Damon

Brooks and Elijah Brooks, are finally and

fully terminated and the complete custody,

control, and guardianship of the children is

awarded to the State of Tennessee, Department of Children’s Services, with the right

to place said children for adoption and to

consent to such adoption in loco parentis.

Entered, this the 24 day of August, 2017.

/s/ Clayburn Peeples

Judge

App.50a

In accordance with Tenn. R. Civ. P. 54.02, as

applicable through Tenn. R. Juv. P. 1(d), this is a final

order as to the Respondents, Jamie Williams and

Michael Brooks, and any appeal from this order must

be made to the Court of Appeals within thirty days of

the entry of this order.

Tennessee law requires that any parent wishing

to appeal an order termination of parental rights

must sign the notice of appeal form. Tenn. Code Ann.

§ 36-1-124(d). If a parent fails to comply with this

requirement, the appeal may be dismissed.

Any appeal of the trial court’s final disposition of

the complaint or petition for termination of parental

rights will be governed by the provisions of Rule 8A,

Tennessee Rules of Appellate Procedure, which imposes special time limitations for the filing of a transcript or statement of the evidence, the completion and

transmission of the record on appeal, and the filing of

briefs in the appellate court, as well as other special

provisions for expediting the appeal. All parties must

review Rule 8A, Tennessee Rules of Appellate Procedure, for information concerning the special provisions that apply to any appeal of this case.

Prepared for Entry by:

/s/ Tiffany Evans

Tiffany Evans (025376)

Assistant General Counsel

State of Tennessee,

Department of Children’s Services

8600 Highway 22

Dresden, TN 38225

(731) 364-9647