Facts: Mother and Father are the parents of two children adjudicated dependent and neglected because of one child’s behavioral issues and Mother’s drug use.

The Department of Children’s Services (DCS) petitioned to terminate their parental rights, and the trial court granted the petition.

Mother appealed.

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

While this 45-page opinion (!!!) addresses several issues, I will focus on those where the trial court was reversed: grounds of mental incompetence and that termination is in the children’s best interest.

Mental incompetence. One ground for terminating parental rights is that the parent is mentally incompetent to provide further care and supervision for the child.

This ground applies when there is clear and convincing evidence that the parent is incompetent to provide care and supervision because the parent’s mental condition is so impaired and likely to remain so that it is unlikely the parent can assume care and responsibility for the child in the future.

DCS relied on expert proof that Mother suffers from depression, anxiety, distress, and PTSD and that drug use makes a parent “per se incompetent.”

The Court found this evidence insufficient:

[DCS’s expert’s] testimony indicates that Mother would be rendered incompetent to parent if she was not seeking appropriate treatment for her issues or was continuing to use drugs. The problem with this opinion, of course, is that [the expert] last successfully evaluated Mother … approximately two years before the final trial date. Since that time, [another expert] testified that Mother had made significant progress in her ability to parent.

What is more, the testimony from DCS workers about Mother’s compliance with mental health treatment is so vague as to be of no assistance. … The DCS workers otherwise broadly testified that Mother did not comply with the permanency plan requirements regarding mental health, but also testified that Mother was seeking mental health treatment. … At best, the evidence was conflicting that Mother was not participating in treatment as required to address her mental health issues. This falls short of clear and convincing proof that Mother lacked mental competence.

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This ground for termination explicitly provides that the parent must be presently impaired by a mental condition. … Mother’s past addiction alone does not appear to constitute clear and convincing proof sufficient to support this ground for termination.

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Here, the testimony shows that Mother’s only mental health diagnoses are anxiety, depression, distress, and PTSD. While the law does not require that DCS provide expert proof in all circumstances to support this ground for termination, DCS chose to provide such proof in this case. That proof established that Mother’s diagnoses alone are not sufficient to show incompetence to parent without being coupled with a lack of treatment and/or drug use. But DCS failed to prove that Mother was currently failing to pursue treatment for her conditions or was using drugs. Under the circumstances, we must conclude that DCS simply presented insufficient proof to show that Mother was suffering from a mental condition that made her incompetent to parent her children. … This ground is therefore reversed.

DCS successfully proved four other grounds for termination, so the Court had to consider whether termination is in the children’s best interest.

Best interest. Tennessee courts must also find by clear and convincing evidence that it is in the child’s best interest to terminate parental rights.

The trial court found Mother’s history of “cycling into a bad period” coupled with her “repeated attempts at rehabilitation and subsequent relapse” would “risk[] these children’s best interest if her parental rights were not terminated.”

The Court found termination was not in the children’s best interest:

This case [] presents a unique factual scenario. On one hand, we have a parent whose history of relapses gives us concern as to her ability to affect the lasting change. But on the other hand, we have at least one child whose already precarious mental health will be extremely harmed if the parent-child relationship is terminated, particularly if Mother continues on her path of sobriety. Moreover, the child’s counselor explicitly testified that reunification with Mother is in the child’s best interest if Mother is continuing to work through her issues, even if that reunification is delayed by a period of many months. As to the other child, his best interests are best served by reunification with his sister, and also having the opportunity to maintain his significant bond with Mother. And the possibility of permanence for both children in another home is uncertain.

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We agree [with the trial court] that this is a complicated and difficult case. When children have been in the care of DCS for years and their parents still have not managed to make progress, typically the law favors termination.

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Tennessee law recognizes the possibility that terminating an unfit parent’s parental rights is not always in the child’s best interest. As such, a child’s best interest is viewed from the child’s, rather than the parent’s, perspective. Viewing the best interest question through this lens, the importance of other factors comes into sharper focus.

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[E]ven in “close cases,” where the parent has a meaningful relationship with the children. …

The bond between Mother and her children in this case is extremely and indisputably close. Of course, a meaningful relationship alone is not sufficient to show that a child’s best interests are served by continuing the parent-child relationship. This is particularly true when a child has been in DCS custody for a long period of time waiting for a parent to make consistent enough progress to allow reunification.

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Lacking a crystal ball, we cannot be sure that Mother’s positive changes will last. But we cannot totally discount Mother’s more recent, yet months-long positive efforts, as that is precisely how the system is designed to function—to help parents make positive adjustments.

While we agree Mother may not be able to presently assume custody of the children, this fact must be considered as merely part of the constellation of factors analyzed in determining a child’s best interest, which is unique to each individual case. …

The issue of the children’s long-term custody is important here. In particular, we note that the prospect of finding a permanent adoptive home for the children together is also somewhat speculative. Testimony from DCS was that neither child was in a confirmed preadoptive home and that it may take a nationwide search using something akin to a dating website to find adoptive homes for the children. While, again, Mother may not be able to presently assume custody, terminating Mother’s parental rights may therefore accomplish nothing other than setting the children adrift with no adoptive family. …

The burden to demonstrate that termination is in the child’s best interest falls solely to DCS. … While we continue to have doubts that Mother will be able to maintain her sobriety long-term, we also have equally if not stronger doubts that the children’s best interests will be served in this particular case by abandoning any hope of reunification and severing the ties between parent and child.

We therefore hope that this case serves as a reminder to Mother that her children remain in limbo and that her choices have profound effects on their lives. Certainly, we have been disappointed before. But the proof presented by DCS simply did not meet its high burden to show that Mother’s parental rights should be terminated at this time.

The Court reversed the termination of Mother’s parental rights.

In re Jayda J. (Tennessee Court of Appeals, Middle Section, July 21, 2021).

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