Facts: Mother and Father are the parents of Child. They never married. Child lived with Mother.

The Tennessee Department of Children’s Services (DCS) received a referral alleging that Child had been exposed to drugs.

When Mother appeared in court, she notified the court that she was homeless and without income. After Mother tested positive for methamphetamine, the court placed Child in DCS custody.

After Child was removed from Mother’s custody, DCS approached Father about Child possibly living with him. When he was drug tested, however, Father also tested positive for methamphetamine.

Shortly thereafter, Child — who was three years old at the time — was given a hair follicle drug test and tested positive for methamphetamine. (!!!)

Child was found to be dependent and neglected. A permanency plan was developed that required Father to

• sign all releases for DCS to obtain information;
• submit to random drug screens;
• refrain from being around those who use illegal drugs;
• attend Child’s medical appointments;
• show DCS with a valid lease;
• show DCS with a valid driver’s license;
• maintain stable housing for six months;
• maintain contact with DCS;
• provide proof of legal income; and
• submit to an alcohol and drug assessment and follow any recommendations.

Father’s first alcohol and drug assessment recommended that he attend five meetings of a chemical dependency support group.

Father continued to fail random drug tests after completing the meetings. Father blamed the failed drug tests on Mother breaking into his residence and contaminating his tea with methamphetamine or, alternatively, resulting from his consumption of energy drinks.

Father’s second alcohol and drug assessment recommended no treatment at all.

A year later, mother surrendered her parental rights. DCS petitioned to terminate Father’s parental rights on grounds of substantial noncompliance with the requirements of the permanency plan.

The trial court found that Father had not substantially complied with the permanency plan because he failed to submit to random drug screens and did not provide proof of legal income. The trial court terminated Father’s parental rights.

Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Tennessee law authorizes termination of parental rights when there has been substantial noncompliance by the parent with the court-approved permanency plan.

Substantial noncompliance is not defined in the termination statute. It is clear, however, that noncompliance is not enough; noncompliance must be substantial, i.e., of real worth and importance. In the context of the requirements of a permanency plan, the real worth and importance of noncompliance should be measured by both the degree of noncompliance and the weight assigned to that requirement. Terms that are not reasonable or related to the issues that led to removal are irrelevant, and substantial noncompliance with such terms is irrelevant.

A majority of the Court concluded that substantial noncompliance was not proven here:

[T]he trial court primarily relied on Father’s failure to submit to random drug screens as the basis for its finding that he had failed to substantially comply with the requirements of the permanency plan. It appears that the trial court gave little consideration to the fact that Father satisfied the majority of the requirements of the plan. . . . Father complied with all of the permanency plan requirements except for the drug screens and proof of income . . . . While we concede that Father’s failure to submit to drug screens undermines his attempts to regain custody of [Child], we have concern that the drug screening requirement may not garner the weight it did at the outset of these proceedings in light of the second drug and alcohol assessment, which recommended no further treatment.

*     *     *     *     *

In light of Father’s current alcohol and drug assessment, which recommended no further treatment, we cannot conclude that his failure to submit to random drug testing is substantial enough to warrant the grave consequences of termination of his parental rights at this point.

Thus, because DCS failed to meet its burden to prove grounds for termination of Father’s parental rights by clear and convincing evidence, the trial court’s ruling was reversed.

Dissent: Judge Susano dissented because “[t]he excuses given by [F]ather with respect to his failed drug tests strain credulity. His explanations are preposterous. The fact that he would use them tells me the that we are dealing with a practicing drug addict.” Judge Susano would’ve upheld the trial court’s termination of parental rights.

K.O.’s Comment: This is the first time Judge Susano has dissented where I have not agreed with him. While I certainly agree with his assessment of Father’s credibility, I’m not comfortable concluding that it proves Father is a practicing drug addict. That’s too big a leap for me to take considering the serious — and permanent — effects of a termination of parental rights.

In re Damien G. M. (Tennessee Court of Appeals, Eastern Section, May 3, 2017).

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