Facts: Shortly after Child’s birth, the Department of Children’s Services (“DCS”) removed Child from Mother based upon Mother’s alleged drug use. The following month, Mother — who was on probation for theft — failed a drug test for methamphetamine, had her probation revoked, and was ordered to serve the remainder of her incarceration. A year later, DCS petitioned to terminate Mother’s parental rights. Although other witnesses testified that Mother used methamphetamine daily, including during the last two weeks of her pregnancy, Mother admitted to using meth at the time Child was born. The trial court found Mother used meth “in utter disregard for the wellbeing” of Child. The trial court terminated Mother’s parental rights. Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Termination of parental or guardianship rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent’s or guardian’s rights is in the best interests of the child. Before a parent’s rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence.

Tennessee Code Annotated § 36-1-102(1)(A)(iv) provides that one ground for terminating parental rights is a finding that “the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.” Mother argued that the evidence of her drug abuse during her pregnancy was insufficient to sustain the trial court’s finding by clear and convincing evidence. The Court rejected Mother’s argument, writing:

We 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. The evidence in the record is overwhelming that Mother had a drug abuse problem prior to incarceration. Mother herself admitted that she was “hooked” on methamphetamine at the time of the birth of the Child. Mother later was arrested for testing positive for drugs at the adjudicatory hearing concerning the Child.

Mother then argued that the trial court’s finding of “persistent conditions” was not supported by the record. Tennessee Code Annotated § 36-1-113(g) provides that another ground for terminating parental rights exists when the conditions that led to the child’s removal still persist and there is little likelihood that these conditions will be remedied at in the near future. Again, the Court rejected Mother’s argument:

Drug abuse appears to be at the heart of Mother’s long-term problems. We . . . are disturbed by what appears to be a cat and mouse game from Mother. Mother seems unable to distinguish between being “clean” at any given moment as opposed to actually taking serious, concrete steps to tackle her underlying drug abuse problem. The record reveals that Mother never has comprehensively addressed her drug abuse problem. On the contrary, Mother seems to be in denial about the magnitude of her problems. Mother has undergone a drug and alcohol assessment but never has actually been treated for her habitual drug habit, a significant omission. . . . Based on the record before us, it is clear that Mother will not be in a position to take on the role of parent to the Child any time in the near future.

Finding the evidence did not preponderate against the trial court’s conclusions, the Court affirmed the trial court.

K.O.’s Comment: From the appellate opinion, it appears the evidence of Mother’s drug abuse during her pregnancy (remember, Mother admitted to using meth once Child was born) consisted of testimony from a shady character of questionable credibility. No mention is made of any medical evidence of Child’s condition at the time of birth. Was there medical evidence that Child had been exposed to methamphetamine? The opinion doesn’t say. The existence or absence of such evidence seems rather important in a case like this.

In re Roni M.H. (Tennessee Court of Appeals, Eastern Section, April 20, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.