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

Mother had not seen the children for several years. Father was caring for the children until the Department of Children’s Services (DCS) removed them because of his methamphetamine abuse.

The juvenile court found the children to be dependent and neglected in Father’s care. At that time, Mother’s whereabouts were unknown.

DCS then discovered that Mother had been arrested a year earlier and was in jail facing a first-degree murder charge. The children were then found to be dependent and neglected in Mother’s care.

Mother pleaded guilty to voluntary manslaughter and was sentenced to serve 15 years in prison.

Father surrendered his parental rights.

DCS petitioned to terminate Mother’s parental rights on the grounds of persistence of conditions and a prison sentence of over 10 years when the children are younger than eight years old.

Regarding persistence of conditions, DCS alleged that Mother lacked the proper housing and financial resources to care for the children because she is in prison.

The trial court found DCS proved both grounds and that termination of Mother’s parental rights was in the children’s best interest.

Mother appealed.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

One ground justifying the termination of parental rights is satisfied when the conditions that led to the child’s removal persist at least six months after the removal, thereby preventing the child’s safe return to the parent’s care.

This ground prevents a child from lingering in the uncertain status of a foster placement if a parent cannot show an ability to provide a safe and caring environment within a reasonable time.

This ground only applies where the child was removed from the parent’s home on a judicial finding of dependency, neglect, or abuse.

The relevant question in a termination proceeding on the grounds of persistence of conditions is whether the parent has continued to neglect the child after the child was removed from the parent’s custody.

The Court found the trial court erred in relying on Mother’s incarceration for the persistence of conditions:

It is clear that both DCS and the trial court treated Mother’s incarceration itself as the persistent condition preventing the children’s return to Mother’s custody. [T]he mere fact of a parent’s incarceration is not grounds for termination of parental rights except under particular circumstances.

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The children were removed because of dependency and neglect arising from Father’s drug abuse. Mother’s whereabouts were unknown at the time of removal, and it is undisputed that the children had not been in her care or custody for approximately two years. Mother’s incarceration was not the basis of the children’s removal, nor is there any evidence that the children were living in Mother’s household at the time of removal.

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[T]here is no proof of Mother’s continued neglect after the children’s removal into DCS custody because she was incarcerated before that event occurred.

The Court reversed the ground of persistence of conditions but affirmed the trial court’s reliance on Mother’s 10-year prison sentence and its findings that termination was in the children’s best interest. The termination of Mother’s parental rights was affirmed.

In re Scarlet W. (Tennessee Court of Appeals, Western Section, January 15, 2021).

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