Facts: Child was born to unmarried parents who lived together but separated when Child was 18 months old. Father moved in with his parents, and Mother obtained a no-contact order of protection prohibiting Father from coming around her and Child.

After a Department of Children’s Services (DCS) investigation revealed Mother tested positive for methamphetamine, the parents agreed for Child to be placed with Maternal Aunt and Uncle.

A few weeks later, DCS petitioned to have Child declared dependent and neglected and transferred temporary legal custody to Aunt and Uncle.

The juvenile court awarded temporary legal custody to Aunt and Uncle. Six months later, the court declared Child dependent and neglected.

Nine months after that, Aunt and Uncle petitioned to terminate Mother and Father’s parental rights and adopt Child.

Before trial, Mother surrendered her parental rights and joined Aunt and Uncle’s petition.

The trial court terminated Father’s parental rights on grounds of persistence of conditions and failure to manifest a willingness and ability to assume custody.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court as to persistence of conditions.

The ground of persistence of conditions applies when:

the child has been removed from the home or the physical or legal custody of a parent … for a period of six months by a court order entered at any stage of proceedings in which a petition has been filed in the juvenile court alleging that a child is a dependent and neglected child, and

• the conditions that led to the child’s removal still persist,
• there is little likelihood these conditions will be remedied soon, and
• the continuation of the parent and child relationship greatly diminishes the child’s chances of early integration into a safe, stable, and permanent home.

This imposes a threshold requirement that the ground be predicated upon an order removing the child that was “entered at any stage of proceedings in which a petition has been filed in the juvenile court alleging that a child as a dependent and neglected child.”

Thus, the ground of persistence of conditions applies when a child has been removed from the parent for six months because of a dependency and neglect petition.

Father argued the ground of persistence of conditions did not apply because Child was removed from his care nearly a month before DCS filed the dependency and neglect case. The Court agreed:

To briefly recap, Mother and [Child] left the home they shared with Father in February 2018. Father moved in with his parents. Mother filed a petition for an order of protection, and the general sessions court entered a temporary order of protection prohibiting Father from coming about Mother or [Child]. DCS and the parents entered into an immediate protection agreement stating that there would be no visits between Father and [Child] due to the order of protection. In March 2018, DCS filed a petition for dependency and neglect and to transfer temporary legal custody to Aunt and Uncle. At that point, the juvenile court entered a protective custody order granting temporary legal custody of [Child] to Aunt and Uncle. However, [Child] was not “removed from the home” of Father by a court order entered at any stage of a dependency and neglect proceeding because he had been residing in the home of Aunt and Uncle for about a month when the petition was filed….

Just as [Child] was not in Father’s home, he was not in his physical custody due to Mother’s physical removal of the child, the order of protection, and the immediate protection agreement.

We also conclude that [Child] was not in Father’s legal custody. [Child] was born to unmarried parents. … Tennessee Code Annotated § 36-2-303 provides, “Absent in order of custody to the contrary, custody of a child born out of wedlock is with the mother.” Here, the record does not contain any custody order “to the contrary.” … As such, [Child] was never placed in, or removed from, the “legal custody” of Father.

Finding that the ground of persistent conditions did not apply to Father, the Court reversed the trial court’s finding as to that ground for termination. The other ground was affirmed, as was the termination of Father’s parental rights.

In re Elijah R. (Tennessee Court of Appeals, Eastern Section, June 21, 2021).

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