Termination of Parental Rights for Substantial Noncompliance with Permanency Plan Reversed in Gainesboro, Tennessee: In re Nakayia S.

Facts: Mother and Father are the parents of two children.

In July 2015, Mother was arrested for driving drunk with the children in the car. At the time of Mother’s arrest, Father was incarcerated in Minnesota. The children went into the custody of the Tennessee Department of Children’s Services (DCS).

Father was released from prison in February 2016. He participated in developing a permanency plan that, among other things, required him to follow recommendations related to counseling and medication.

A second permanency plan was created in June 2016 that required him to continue cooperating with DCS and following their recommendations.

In December 2016, when Father was serving a four-month sentence on an outstanding warrant, DCS developed a third permanency plan without Father’s participation or agreement. That plan was not approved by the juvenile court until April 2017, four months later.

The third permanency plan required Father to submit to and follow the recommendations of a psychological and parenting assessment and maintain appropriate housing.

Tennessee termination of parental rightsIn February 2017, DCS petitioned to terminate Father’s parental rights based, in part, on his substantial noncompliance with the permanency plan.

After a trial in July 2017, the trial court found that Father was in substantial noncompliance with the permanency plan because he failed to provide proof of appropriate housing in a timely manner and failed to follow up on the psychological assessment’s recommendations. Father’s parental rights were terminated.

Father appealed.

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

Tennessee courts may terminate a parent’s parental rights when there has been substantial noncompliance by the parent with the statement of responsibilities in a permanency plan. To support a finding on this ground, the statement of responsibilities must meet two requirements:

  1. the statement must include the responsibilities of each party in specific terms, and
  2. the responsibilities must be reasonably related to the achievement of the permanency plan’s goal.

The Court found DCS did not provide Father with a reasonable amount of time to comply with the permanency plan requirements:

DCS did not include the housing and assessment requirements in a permanency plan until December 2016, when DCS developed the third plan with an expected achievement date of June 28, 2017. DCS developed the plan without Father’s participation, and he was not given a copy of until after DCS filed its petition in February 2017. Four months after DCS developed a plan and a mere three months before the court held its final hearing on the termination petition. While [the DCS caseworker] testified that she verbally communicated the assessment requirement to Father in February 2016, it is axiomatic that noncompliance with the permanency plan statement of responsibilities requires that the alleged noncompliance be based on a requirement in the statement of responsibilities. . . .

Because Father did not agree to the third permanency plan, Father had no obligation to complete the requirements until the juvenile court ratified it on April 4, 2017. Thus, we find it was unreasonable to expect Father to comply with these requirements before the final hearing. . . . For this reason, we disagree with the juvenile court’s finding that clear and convincing evidence existed for terminating Father’s parental rights for substantial noncompliance with the permanency plan’s statement of responsibilities.

The trial court’s judgment on this ground was reversed. The trial court was also found to have failed to make specific findings on other grounds for termination and the children’s best interest. The case was remanded for the trial court to make specific factual findings and conclusions of law.

In re Nakayia S. (Tennessee Court of Appeals, Middle Section, September 18, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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