Facts: The Tennessee Department of Children’s Services (“DCS”) removed Children from Mother and Father because of the parents’ drug use and placed them with Paternal Grandparents. DCS provided services to the parents and crafted a permanency plan.

Nine months after the removal, Paternal Grandparents petitioned to terminate Mother and Father’s parental rights on four grounds.

Father voluntarily surrendered his parental rights. Mother did not.

By the time of the hearing the following year, Mother and Father had divorced.

Mother testified that DCS removed Children once before because of allegations of drug abuse but that her custody was restored after she completed all the requirements.

Mother testified that she is an addict. She attempted sobriety a few months before the petition was filed but has relapsed several times since the removal.

Mother sought rehabilitation three months before the trial and remained sober until she smoked some marijuana the month before the trial. Then, she returned to the rehabilitation center and was released to outpatient services.

Paternal Grandmother testified that Mother visited Children while under the influence and sometimes was told to leave because of her behavior.

The trial court found clear and convincing evidence for only one ground for termination—the persistence of conditions that led to the removal. It then found that termination was in Children’s best interest, and Mother’s parental rights were terminated.

Mother appealed.

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

Parents have a fundamental right to the care, custody, and control of their children. Tennessee courts may only terminate a parent’s rights upon a finding by clear and convincing evidence that (1) grounds for termination have been established, and (2) that termination is in the child’s best interest.

One ground for termination is the persistence of conditions. This ground exists when a child has been removed by a court order from the parent’s custody for six months because of dependency and neglect and:

• the conditions that led to the removal still persist, thereby preventing the child’s safe return to the parent;
• there is little likelihood these conditions will be remedied so the child can safely return to the parent in the near future; and
• the continuation of the parent-child relationship greatly diminishes the child’s chances of early integration into a safe, stable, and permanent home.

The Court found the appellate record lacked the necessary order of removal:

The record before this court does not contain the order of removal or any other like documents from the juvenile court for this court’s consideration. The trial court admitted that the scant record limited its ability to sustain the other grounds of termination the [] ground [of persistent conditions]. We have no doubt that the juvenile court record exists and contains an order of removal most likely based upon Mother’s admitted drug use; however, as stated previously by this court, we cannot assume the existence of facts which are not in the record. Indeed, the “threshold consideration” for this ground is a court order of removal. We are unable to determine whether the children were removed from the home by a court order based upon the record provided, a necessary finding to sustain this ground of termination.

Because the Court reversed the sole ground of termination, the order terminating Mother’s parental rights was reversed.

In re Emma F. (Tennessee Court of Appeals, Eastern Section, February 25, 2022).

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