Tenn. Code Ann. § 36-1-113

Persistent conditions must be remedied early enough to permit the child’s safe return to the parent in the near future.

In Re: Aaron E. · filed 2014-08-04(g)(3)(B)

Irrespective of her efforts, Mother contends that all of the persistent conditions were ultimately remedied, but even if accurate, the remedies did not come at “an early date,” which basically precluded return of Aaron to his Mother “in the near future.” Tenn. Code Ann. § 36-1-113(g)(3)(B).

Section 36-1-113(g)(3) requires clear and convincing evidence of all three persistence-of-conditions elements; failure to prove the first defeats this ground for termination.

In Re: Jeramyah H. · filed 2016-10-31(g)(3)

Because we cannot conclude that DCS has proven the first statutory factor and this ground for termination requires clear and convincing evidence of all three factors, we need not consider the remaining factors. DCS did not carry its burden of establishing persistence of conditions as a ground for termination.

A parent’s continuing need for mental-health counseling does not establish persistence of conditions without clear and convincing evidence linking the parent’s current mental condition to an inability to parent safely.

In Re: Stormie M. · filed 2016-09-15(g)(3)

Due to the absence of specific testimony illustrating the nature of Mother‟s mental stability at trial and its relation to her ability to parent, we must reverse the trial court‟s finding that persistent conditions exist with respect to Mother. Although Mother‟s mental health may pose a significant barrier to reunification given her prior struggles and failure to seek consistent treatment, clear and convincing evidence on this point is lacking.

Untreated mental illness and persistent failure to manage prescribed medication can constitute persistent conditions under subsection (g)(3)(A) when they leave parents unable to provide a stable home and expose the children to substantial harm.

In the Matter of Tiffany Harrell & Matthew Miller (In the matter of T.J.H.) · filed 1998-06-12(g)(3)(A)

We conclude that the record contains clear and convincing evidence that neither R.M.H. nor W.H. have remedied their inability to manage their psychological disorders. Two physicians testified that a history of past non-compliance with medication portends a diminished chance of success in the future. The expert testimony supports the conclusion that R.M.H. and W.H. are unable to provide a stable home for their children and that continuing the parental relationship could expose the children to a substantial threat of harm.

A continuing inability to provide fundamental care can constitute a persistent condition under section 36-1-113(g)(3)(A) even when it is not willful, particularly when long-term services have not made safe return likely in the near future.

In the Matter of T.S. and M.S. · filed 2000-07-13(g)(3)(A)

These opinions indicate that a parent’s continued inability to provide fundamental care, even though not willful, whether caused by mental illness, mental impairment, or some other cause, constitutes a condition which prevents the safe return of the child to the parent’s care. Where, as here, efforts to provide help to improve the parenting abilities, offered over a long period of time, have proved ineffective, the conclusion that there is little likelihood of such improvement as would allow the safe return of the child to the parent in the near future is justified.

Persistent conditions support termination when extensive services and opportunities have not produced significant changes in the parent's ability to care for the children.

In Re CDB · filed 2000-10-18(g)(3)(A)

The trial court recognized that Ms. Bagwell was provided every opportunity to make the necessary changes in her life. She made little, if any, effort to improve herself as a parent to her children. She did not complete parenting classes, never gained any long-term employment, never obtained a GED, and, most importantly, made only minimal efforts to visit with her children while they were in state care.[5] The fact is that Ms. Bagwell's most concerted effort in this entire process has been fighting the termination proceedings. The record clearly shows that the trial court's decision to terminate was supported by clear and convincing evidence.

Termination is supported when clear and convincing evidence shows persistent conditions, parental mental incompetence, no lasting adjustment or meaningful relationship, and that termination serves the children’s best interests.

Dept. of Children's Services v. Bates · filed 2001-10-19(g)(3), (g)(8)(B), (i)

The record further indicates by clear and convincing evidence that the conditions which led to the children’s removal from Mrs. Bates’ care still persist and that there is little likelihood that the conditions will be remedied at an early date; that Mrs. Bates is incompetent to adequately provide for her children because of her mental condition; that there has been no lasting adjustment made by Mrs. Bates to care for her children; that there has been no meaningful relationship established ... between Mrs. Bates and her children and that it is in the children’s best interests to terminate Mrs. Bates’ parental rights to her children.

Persistent mental incapacity satisfies subsection (g)(3)(A) when it continues to prevent safe parenting, is unlikely to improve soon, and blocks the child’s chance for a permanent home.

In the Matter of: C.J.S. · filed 2001-11-16(g)(3)(A)(i)-(iii)

We find that there is clear and convincing evidence to support the judge’s decision that termination of A.E.S.’s parental rights was proper under the requirements of Tenn. Code Ann. § 36-1-113(g)(3)(A)(i)-(iii).

A parent’s inability to meet children’s exceptional physical, medical, and emotional needs can be an “other condition” under subsection (g)(3)(A)(i) that prevents their safe return.

In The Matter Of: C.N.S. and C.J.S. · filed 2002-09-17(g)(3)(A)(i)

In light of the unique obstacles to a normal and healthy childhood faced by C.N.S. and C.J.S., this discussion will focus on the mother’s inability to meet the physical, medical, and emotional needs of these children. We note such a ground is encompassed by Tenn. Code Ann. § 36-1- 113(g)(3)(A)(i), which allows termination based upon the existence and persistence of “. . . other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child's safe return to the care of the parent(s) or guardian(s) . . . .” See also Tenn. Code Ann. § 36-1-113(g)(7).

A parent's failure over an extended period to obtain the training and demonstrate the skills needed for a child's extraordinary medical care can establish substantial noncompliance, persistent conditions, and that termination serves the child's best interests.

Dpt. of Child. Services v. DLSJ · filed 2003-05-29(g), (i)

The Court also found the conditions which led to removal still persisted, and were not likely to be remedied in the near future. This ground for removal is also dependent on the foregoing, since the child was removed from the mother’s care because she could not meet his medical needs. This condition still exists, and there is no indication that it will likely be remedied in the near future, given the length of time that has elapsed with minimal efforts to cope demonstrated by the mother.

Persistent conditions are established when a parent remains unwilling or unable to recognize and protect children from an abusive caretaker, making further abuse or neglect likely if the children are returned.

Dept. Children Serv. v. Everson · filed 2003-09-15(g)(3)(A)

By Mother’s testimony and the documents admitted into evidence by her counsel, it is clear that Mother was unwilling or unable to grasp the fact that Grandmother was a real danger to her children. From this evidence, it is clear that, if J.R. and P.E. were returned to Mother’s custody, they would likely also be faced with a childhood of abuse and neglect. By clear and convincing evidence, the “persistent conditions” ground for termination of Mother’s parental rights is established as well.

Persistent failure to resolve the fundamental conditions preventing return, after ample time and with no meaningful progress, satisfies subsection (g)(3)(A) when continued delay impedes the children’s integration into a stable permanent home.

In Re: A.M.T., Z.T.R. and K.W.T. · filed 2004-07-02(g)(3)(A)

Our review of Mother’s testimony convinces us that she is reasonably intelligent, yet she repeatedly failed to take the necessary steps which would lead to the return of her children. In reviewing the record, we are struck by her testimony on the first day of trial about how hard she had worked to prepare the home for the children’s return and how she had a network of support to assist with the children’s return and especially how this support network would help her care for her children. Yet incredibly, on the second day of trial, less than two months later, she did not have housing, at least she cannot prove that she had more than an expectation of housing, and had again changed employment. Despite, Mother’s positive characterization of this turn of events, it is apparent that Mother had not bettered her situation. Given the length of time the children have been in the Department’s custody and the lack of progress made by Mother to comply with the requirements, we find that the evidence is clear and convincing that the inadequate conditions will persist and that maintaining the parent child relationship any longer greatly diminishes the children’s chances of early integration into a safe, stable and permanent home.

Termination based on a parent's mental incompetence under section 36-1-113(g)(8) does not require proof that the parent's failure was willful.

In Re SRC · filed 2004-08-16(g)(8)(B)-(C)

Termination of parental rights under this section does not require a showing of willfulness on the part of the parent.

Poor parenting and bad judgment do not establish persistent conditions without clear and convincing evidence that the alleged condition actually persists and prevents safe return.

In the matter of: D.C. and S.C., State of Tennessee Department of Children's Services v. Carey · filed 2004-11-03(g)(3)(A)

From all of the evidence in this record, it is clear to us that Carey has been guilty at times of poor parenting and bad judgment. We do not condone her conduct; however, we must follow the dictates of the legislature in making our ruling in this case. Therefore, we respectfully disagree that there is clear and convincing evidence that grounds exist for termination in this case under T.C.A. § 36-1-113(g)(3)(A).

Persistent conditions may be established where a parent and abusive stepparent refuse to accept responsibility for the child's abuse, fail to understand the child's special needs, and continue to normalize domestic violence.

State of Tennessee, Department of Children's Services v. Jennifer Simpson Blackwell, in the matter of: J.S. Jr. (DOB 6/2 · filed 2004-11-08(g)(3)(A)

After reviewing the record as a whole, we cannot say the trial court erred when it found that conditions which led to the child’s removal, or other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect, still persist.

Subsection (g)(3)(A) reaches persistent “other conditions,” including continued association with an unsafe parent, unemployment, and untreated mental-health concerns, even apart from the conditions that caused removal.

State of Tennessee, Department of Children's Services v. Taketa Puryear and Johnnie B. McNeal · filed 2005-03-30(g)(3)(A)

Even if we were to agree with Mother, in that DCS prevented her from obtaining suitable housing, Mother overlooks additional conditions present in the record which still persist. Section 36-1-113(g)(3)(A) permits a court of this state to terminate a parent’s parental rights based not only on a failure to remedy the conditions which led to removal but the persistence of “other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s safe return to the care of the parent(s).” Tenn. Code Ann. § 36-1-113(g)(3)(A) (2003); In re S.Y., 121 S.W.3d 358, 369 (Tenn. Ct. App. 2003). There are additional conditions present in this case which have a direct bearing on our analysis. There is every indication in the record that Mother intends to continue her relationship with Father. In fact, at the time of trial, Mother was pregnant with their fourth child. Additionally, Mother is currently unemployed, and receives social security disability benefits in the amount of approximately $680.00 per month. Further, Sally McDonald (“Ms. McDonald”), a licensed therapist with J.B. Summers Mental Health Center, testified that she evaluated Mother and Father at the request of DCS. Ms. McDonald stated that, during the initial evaluation, Mother was “not forthcoming” and was “guarded.” Following their initial evaluation, Ms. McDonald referred Mother for further psychiatric evaluation, and Mother was subsequently prescribed medication for depression. Mother’s psychological records were introduced at trial, and Mother testified that she first went to J.B. Summers Mental Health Center as a teenager for counseling after she had been sexually assaulted at the age of ten. Regarding her most recent psychological treatment, Ms. McDonald testified that they discharged Mother after she failed to appear for a scheduled appointment. Despite the concerns of DCS about Mother’s mental health, Mother testified that, at the time of trial, she was not undergoing therapy. All of the aforementioned facts clearly and convincingly establish that “other conditions” exist in this case that in all likelihood will not be remedied at an early date.

Mental impairment supports termination without proof of willfulness when clear and convincing evidence shows the parent remains unable to provide adequate care and is unlikely to assume responsibility in the near future despite treatment efforts.

In the Matter of M.A.W. · filed 2006-05-25(g)(8)(B), (C)

Upon review of the entire record in this case, we find clear and convincing evidence supports the juvenile court’s findings that, due to her mental conditions, Mother is incompetent to adequately provide for the further care and supervision of M.A.W. and will be unable to assume or resume the care and responsibility of M.A.W. in the near future.

Termination for a parent's enduring mental incompetence under subsection (g)(8) does not require proof of willfulness.

In Re: D. F., S. F., T. F., L. F., A. F., A. F, D. F., K. F., Children Under Eighteen (18) Years of Age · filed 2008-10-27(g)(8)(A)-(B)

Tenn. Code Ann. § 36-1-113(g)(8)(A)&(B)(2005). No showing of willfulness is required.

Mental incompetence supporting termination does not require willfulness, because the ground protects children whose parent may not intend harm but remains unable to provide care in the near future.

IN RE: D.C.C. and J.E.C. · filed 2008-03-03(g)(8)(B)-(C)

The statute further declares that no proof of willfulness on the part of the parent or guardian in the failure to care for the child is required to establish this ground.

Persistent conditions may be established by a parent's continuing inability to parent safely and repeated failure to prevent a sexual offender from being alone with a vulnerable special-needs child.

In the Matter of R. R. B. · filed 2008-04-22(g)(3)

Although Mother’s repeated failure to comply with the Safety Plan requirement that she not permit a sexual offender to be alone with the child is a matter of grave importance, Mother’s inability to effective and safely parent the child is also of great significance.

Expert testimony is not required to prove that a parent's mental illness renders the parent unable to care for the children under subsection (g)(8)(B)(i).

In Re: B.L.S.C., D.L.S., & D.J.C. · filed 2009-04-07(g)(8)(B)(i)

She cites no authority, and we know of none, that requires the State to put on expert testimony on the issue of the effect of a parent’s mental illness on his or her ability to parent children.

Mental incompetence under subsection (g)(8)(B) is proved when the parent’s current mental condition and long-term prognosis render her unable to care for the children and social services cannot remedy the condition.

State of Tennesse, Department of Children's Services v. Peterson · filed 2009-08-27(g)(8)(B)

From the totality of the circumstances, we conclude that there is clear and convincing evidence that Mother’s current mental health, and her ongoing prognosis, make her incompetent to care for these children.

Mental incompetence under subsection (g)(8)(B) is proved when the parent’s current mental condition and long-term prognosis render her unable to care for the children and social services cannot remedy the condition.

State, Department of Children's Services v. Peterson · filed 2009-11-23(g)(8)(B)

Dr. Gentry testified, concerning the 2006 CCP evaluation, that Mother “did not have the capability of providing her children with a safe and loving home and any child in her care would be at risk for harm.” Dr. Gentry further testified that mother’s condition had not changed from 1997, when she was first interviewed by CCP. Moreover, Dr. Gentry testified that Mother’s IQ of 74, along with her self-defeating behaviors, renders her overall prognosis poor. Dr. Gentry opined that social services would not be able to remedy Mother’s condition. CCP ultimately recommended termination of Mother’s parental rights, a recommendation made in only 3-5% of CCP’s cases. From the totality of the circumstances, we conclude that there is clear and convincing evidence that Mother’s current mental health, and her ongoing prognosis, make her incompetent to care for these children.

Mental incompetence requires clear and convincing proof both that the parent is presently unable to care for the children and that the impairment is likely to continue so the parent cannot resume care in the near future.

In Re Keisheal N.E. · filed 2010-05-28(g)(8)(B)

We find that the Department established that Father is presently unable to care for the children due to his mental condition; however, the Department failed to demonstrate by clear and convincing evidence that it is unlikely that Father would be unable to care for the children in the near future.

Mental incompetence requires proof that the parent is presently unable to care for the child and is unlikely to become able to provide care in the near future.

In the Matter of David J.B. · filed 2010-07-23(g)(8)(B)

A parent’s rights may be terminated on the ground of mental incompetency if the court determines, by clear and convincing evidence5 that the parent cannot adequately provide care and supervision to the child because the parent’s mental condition is impaired and is likely to remain so that it is unlikely that the parent will be able to a care for the child in the near future, and that termination of parental rights is in the best interest of the child.

Failure to provide a particular mental-health placement does not require reversal of termination for mental incompetence when that ground is established and the parent does not challenge the finding that the impairment is enduring.

In the Matter of Kentavious M. (d.o.b. 03/29/2007), A Minor Child Under Eighteen (18) years of age · filed 2010-12-14(g)(8)(B)(i)

We hold, in the alternative, that the alleged failure to place Kianna in a lock-down facility is not a basis for reversal on the ground of mental incompetence. ... Thus, DCS’s failure to place Kianna in a lock-down treatment facility is not cause for reversing the termination of her parental rights, because Kianna has not challenged the trial court’s conclusion that she is presently so impaired and is so likely to remain so that it is unlikely she will be able to assume or resume the care of and responsibility for the child in the near future.

A parent's enduring inability or unwillingness to perform essential medical care for a medically fragile child establishes persistent conditions when it makes safe return unlikely in the near future.

In Re: Destiny S. · filed 2011-01-13(g)(3)

These conditions primarily include Father’s admitted inability and/or unwillingness to provide the Child with required medical care. If the Child were returned to his care, her safety from a medical standpoint would be questionable, at best. Father was unable to provide the necessary medical care even though he had been provided medical training on two occasions. As such, there is little likelihood that his inability to provide proper medical care would be remedied in the near future. ... Accordingly, we affirm the judgment of the Juvenile Court that the ground to terminate Father’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3) had been proven by clear and convincing evidence.

Termination for enduring mental incompetence under subsection (g)(8) does not require proof that the parent's inability to care for the children is willful.

In Re Destiny H. A. A. M. M. M. · filed 2011-01-27(g)(8)(B)-(C)

Under this statutory ground, the party seeking termination does not need to prove willfulness. ... Accordingly, clear and convincing evidence showed that Mother was mentally incompetent to parent her children and was likely to remain incompetent for the foreseeable future. Thus, the trial court properly terminated her parental rights on this basis.

Untreated delusional beliefs establish mental incompetence when they impair parenting judgment, expose the child to danger, and are unlikely to improve because the parent rejects treatment.

In Re Izaiah J. · filed 2012-03-20(g)(8)

The unrebutted testimony of Ms. Ferrar, Ms. Roberts, and Dr. Sewell, along with other unrebutted evidence in the record, clearly and convincingly supports the trial court’s finding that Father is mentally incompetent to care for Neicy and that he is unlikely to be able to care for her in the near future. Because he refused treatment for his delusional disorder, Father never demonstrated that he was mentally stable to parent Neicy. DCS met its burden pursuant to Tenn. Code Ann. § 36-1-113(g)(8).

Persistent mental-health conditions support termination when the parent attends treatment only sporadically, inconsistently takes medication, and gives conflicting accounts that impede effective care.

In Re: Kayleigh N.R. · filed 2012-06-25(g)(8)

The trial court was concerned that Mother’s lack of honesty would prevent her from obtaining the help that she clearly needs, a concern that this court shares. Mother’s long history of substantial mental health problems was a main reason that the child was placed into the care of the Department, and Mother’s failure to make any substantial efforts to address her mental health problems supports the trial court’s findings. We, therefore, affirm the trial court as to all four statutory grounds for termination.

Failure to learn a medically fragile child’s care, repeated missed medical appointments, untreated mental-health issues, continued drug sales, and medication noncompliance establish persistent conditions under subsection (g)(3).

In Re: Bryce L.H. and Alexis D.H. · filed 2011-05-12(g)(3)

The evidence clearly showed that during this February to December timeframe, the mother missed multiple medical appointments for the children and for herself, despite having appointments set up by the caseworker and being given reminders of the same. The mother admitted that she did not take her bipolar medications as she was supposed to do. She admitted that she was again criminally charged for selling lortabs, which resulted in her incarceration from September to December 2009. She admitted that she had never successfully completed the 24 hour stay at the hospital with her child, nor the vent training necessary to bring the child home. Thus, the evidence is clear and convincing that the conditions leading to removal still persisted, and were unlikely to be remedied at any time in the future such that it would be safe for the children to be with the mother.

Persistent conditions and severe child abuse support termination when clear and convincing evidence shows that parents remain unable to care appropriately for the children despite years of services.

In the Matter of: Brandon C. S. (d/o/b 10/1/2002), a Child Under Eighteen (18) Years of Age · filed 2011-05-26(g)(3), (g)(4)

Tenn. Code Ann. § 36-1-113(g)(3) & (4)(2010)(emphasis added). Upon review of the record, we agree with the trial court that clear and convincing evidence establishes that Brandon was dependent and neglected. We also conclude that grounds for termination of Parents’ parental rights based on persistence of conditions and severe abuse have been established by clear and convincing evidence in this case.

Subsection (g)(8)(B) is established when serious, untreated mental-health conditions presently prevent the parent from caring for the child and are unlikely to improve in the near future.

In the Matter of: Scott C. · filed 2011-06-27(g)(8)(B)

Mother, however, refused to cooperate, admit that she has mental health issues, or comply with the recommendations of the medical professionals who attempted to help her. We find that the trial court correctly found the Department demonstrated by clear and convincing evidence that Mother suffers from serious mental health issues and is clearly unable to care for a child in her current state, and is unlikely to be able to do so in the near future.

Mental incompetence requires clear and convincing proof that the parent is presently unable to care for the child and is unlikely to become able to do so in the near future.

In Re: Billy D. H. · filed 2011-12-29(g)(8)(B)

The burden is on DCS to demonstrate two essential facts: (1) that the parent is presently unable to care for the subject children and (2) that the parent is unlikely to be able to care for the children in the near future.

Persistent conditions may be proven despite some moderate therapeutic progress when the parent's unresolved mental and emotional issues continue to prevent safe, effective parenting of children with exceptional needs.

In Re: Sierra D.M. · filed 2012-01-25(g)(3)

A careful and thorough review of the record reveals that the evidence does not preponderate against these findings. As such, we find no error in the Juvenile Court’s finding and holding that clear and convincing evidence existed to terminate Mother’s parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions.

A parent’s failure to remedy persistent conditions under subsection (g)(3) need not be willful; continued inability to provide fundamental care can prevent the child’s safe return.

In Re: Jena P. · filed 2012-06-28(g)(3)

The failure to remedy the conditions that led to the child’s removal need not be willful. In re Arteria H., 326 S.W.3d 167, 177 (Tenn. Ct. App. 2010). Even if not willful, “‘a parent’s continued inability to provide fundamental care to a child, . . . constitutes a condition which prevents the safe return of the child to the parent’s care.’”

Mental incompetence supports termination when the parent's impairment is so enduring that he is unlikely to assume care and responsibility for the children in the near future.

In Re Keisheal N.E. · filed 2013-02-04(g)(8)(B)(i)

After the second trial, the trial court found the petitioners established the ground listed in Tennessee Code Annotated § 36-1-113(g)(8)(B)(i) that: “[t]he parent . . . is incompetent to adequately provide for the further care and supervision of the child because the parent’s . . . mental condition is presently so impaired and is so likely to remain so that it is unlikely that the parent . . . will be able to assume the care and responsibility for the child in the near future. . . .” ... We affirm.

Persistent conditions are established when the parents repeatedly demonstrate that they cannot care for the child without monitoring and assistance despite extensive services.

In the Matter of Dakota M. S. · filed 2013-02-05(g)(3)

The trial court’s conclusion that the parents “demonstrated time and again that they could not take care of Dakota without monitoring and assistance” is supported by the testimony of not only Ms. Roberts, but also the testimony of Ms. Lundholm and Dr. Herman, the Alliance assessment and case notes, the case notes prepared by DCS, and the report prepared by Dr. Kaforey. ... We affirm the termination of Mother and Father’s parental rights on the ground of persistence of conditions.

Persistent instability may remain unremedied despite visitation, mental-health treatment, housing help, and a trial home visit when the parent still cannot adequately care for the children.

In Re: Kelsie M.P. · filed 2013-02-12(g)(3)

Unfortunately, despite DCS’s services and the trial home visit, Mother was unable to remedy the instability that prevented her from being able to adequately parent the Children. Accordingly, from our review of the record, we find that it supports, by clear and convincing evidence, the trial court’s findings of fact and conclusions of law that DCS made reasonable efforts to provide Mother with the services she needed to be reunited with the Children.

Mental incompetence is not proven when the evidence shows unsafe parenting choices but does not show that a mental condition prevents the parents from providing future care and supervision.

In Re: Christopher S. · filed 2013-09-27(g)(8)

We conclude that the evidence does not support the trial court’s finding that Father and Mother were mentally incompetent to provide for the further care and supervision of the Children. The trial court erred by terminating Father’s and Mother’s parental rights based upon this ground.

A parent’s persistent neglect of a child’s significant medical needs satisfies subsection (g)(3) when the neglect is likely to continue and impedes the child’s integration into a safe, stable home.

In Re Thomas L. H. H. · filed 2013-02-28(g)(3)

The evidence clearly and convincingly shows that it is reasonably probable that the neglect Father has demonstrated in the past will persist within the meaning of Tenn Code Ann. § 36-1-113(g)(3)(A). Likewise, the evidence shows that there is little likelihood that Father’s neglect will be remedied as required by Tenn Code Ann. § 36-1-113(g)(3)(B).

Mental incompetence supports termination when the parent's condition presently prevents adequate care and is likely to remain impaired so that the parent cannot assume responsibility in the near future; a possible three-to-five-year path to competence is not the near future.

In The Matter Of: Candelaria M. · filed 2013-06-25(g)(8)(B)

Based on the evidence presented at trial, we conclude that clear and convincing evidence exists to terminate Mother’s parental rights to Child because Mother’s mental condition is presently so impaired and is likely to remain impaired, so that it is unlikely she will be able to assume the care of and responsibility for Child in the near future.

Expert testimony is not categorically required to prove that a parent's mental illness renders the parent incompetent to care for a child.

In Re: Alicia K.A. · filed 2013-07-08(g)(8)

Mother’s assertion that the Juvenile Court’s finding of incompetence must be overturned because it was not predicated on expert evidence is simply incorrect.

Termination for enduring mental incompetence does not require proof that the parent willfully failed to acquire the capacity to care for the child.

In Re D.W.M., Jr. · filed 2014-05-13(g)(8)(B)-(C)

The statute explicitly states that, for this ground, “no willfulness” on the part of the parent “need be shown to establish that the parental . . . rights should be terminated. . . .”

Subsection (g)(8)(B) does not require expert testimony about how a parent's mental illness affects the parent's ability to care for a child.

In Re Shaneeque M. · filed 2014-11-20(g)(8)(B)

However, expert testimony on the effect of a parent’s mental illness on his or her ability to parent a child is not required.

Untreated mental-health conditions persist when the parent does not follow treatment and medication directives, continues violent behavior, and remains unable to safely parent a special-needs child.

In re Jamie G. · filed 2015-05-29(g)(3)

Here, testimony shows that Mother has had violent outbursts, directed at Grandmother, Grandfather, and Marcus B. Mother‟s recent inappropriate behavior at visitation has caused the child considerable distress. Even more distressing, Mother has pleaded guilty or been convicted of three separate charges of child abuse and has been arrested for domestic violence on several occasions. Rather than treating the mental illnesses that led to these violent episodes, Mother failed to diligently follow Centerstone‟s requirements, often missing appointments and failing to attend appointments dealing with her medication management. Mother‟s conditions, which often lead her to become easily aggravated, frustrated, and violent, simply make her unable to parent Jamie, a special needs child.

Parents’ formal compliance with permanency plans does not defeat persistent conditions when they remain unable to retain the information and parenting skills needed to prevent further neglect.

In re Aisha R. · filed 2015-06-15(g)(3)

We acknowledge that Parents were largely compliant with the requirements contained in the permanency plans. However, neither parent demonstrated the ability to parent the Children for extremely short periods of time without continual prompting. Placing the Children with either parent would cause the Children to be subjected to further neglect. The record reflects that it is unlikely that Parents will ever retain the information necessary to properly parent any child.

Mental incompetence supports termination without willfulness when clear and convincing evidence shows the parent is presently unable to care for the children and is unlikely to become able in the near future.

In re Domingo W. · filed 2015-07-23(g)(8)(B), (g)(8)(C)

In light of the foregoing, we conclude that DCS has met its burden and proved by clear and convincing evidence that Mother is (1) presently incompetent and unable to adequately care for and supervise the children because of her mental impairment and (2) such mental impairment and incompetence is so likely to remain that it is unlikely that Mother will be able to adequately care for and supervise the children in the near future.

Mental incompetence under subsection (g)(8)(B)(i) is not reserved only for conditions that no amount of intervention can assist.

In Re Lillian D. · filed 2016-08-26(g)(8)(B)(i)

This Court has rejected the argument that the ground of mental incompetence is reserved only for parents who have “a condition for which ‘no amount of intervention can assist’” and instead has affirmed the termination of parental rights for mental disorders such as bipolar disorder, adjustment disorder with anxiety and depressed mood, dependent personality disorder, and schizophrenia disorder.

Mental incompetence supports termination without willfulness when the parent’s intellectual disability and psychotic disorder prevent current or near-future independent parenting.

In Re: La'Trianna W. · filed 2016-12-09(g)(8)

The record reflects that Father suffered from an intellectual disability and a psychotic disorder, not otherwise specified. While he has been cooperative with services, he has not evidenced the ability to parent the Child now or in the near future.

Mental incompetence is established when clear and convincing evidence shows the parent cannot adequately provide future care and the impairment is likely to persist.

In Re: La'Trianna W. · filed 2016-12-15(g)(8)

From the totality of the circumstances, we conclude that there is clear and convincing evidence that Mother is mentally incompetent to provide adequately for the future care ... and supervision of the children.

Mental incompetence supports termination when clear and convincing evidence establishes inability to parent and best interests.

In Re: Tanya G. · filed 2017-07-07(g)(8)

Finding no error, we affirm the judgment of the trial court.

Subsection (g)(8) is established when clear and convincing evidence shows the parent's enduring mental impairment prevents adequate care and supervision of a child's significant special needs.

In Re: Eric G. · filed 2017-10-25(g)(8)

After a careful review of the record, we conclude that the evidence clearly and convincingly supports the trial court’s determination that Mother suffered from mental incompetence, as defined in Tennessee Code Annotated section 36-1-113(g)(8), as the record demonstrates that Mother was “incompetent to adequately provide for the further care and supervision” of Eric’s significant special needs because her “mental condition is presently so impaired and is so likely to remain so that it is unlikely that [she] will be able to assume or resume the care of and responsibility for [Eric] in the near future.”

A parent’s continuing inability to provide fundamental care, even if not willful and caused by mental illness or impairment, is a condition preventing safe return under subsection (g)(3).

In Re K.Y.H. · filed 2018-01-23(g)(3)

A parent’s continued inability to provide fundamental care to a child, even if not willful, whether caused by a mental illness, mental impairment, or some other cause, constitutes a condition which prevents the safe return of the child to the parent’s care.

Under subsection (g)(3)(A), the court may consider any persistent conditions likely to cause further abuse or neglect and is not limited to the conditions that caused the initial removal.

Dept. of Children's Services v. C.M.S. · filed 2002-05-31(g)(3)(A)

There is no dispute that the children have been removed from the mother for six months. The issue before us, therefore, is whether the other statutorily required factors were proved by clear and convincing evidence. DCS argues that the court can consider any conditions which would cause a child to be subjected to further abuse or neglect and is not limited to the conditions which were the basis of the initial removal. Based on the clear language of the statute, we agree.

Persistent other conditions under subsection (g)(3)(A) may include the lack of suitable housing, transportation, employment, income, and needed medication when those conditions prevent safe return and are unlikely to be remedied soon.

Department of Children's services v. R.A.W. · filed 2003-10-20(g)(3)(A)(i)-(iii)

There is clear and convincing evidence that “other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s safe return to the care of … [Father] still persist.” Tenn. Code Ann. § 36-1-113(g)(3)(A)(i). Specifically, Father is not and apparently never has had a suitable home for the Child. At the time of the final hearing in March, Father was sleeping on a friend’s couch. Father has not had suitable transportation for some time. Father was unemployed and had no source of income with which to raise a young child. Equally important is the fact that Father had stopped taking his medication and his emotional capacity was beginning to regress. There was absolutely no proof offered at trial that any of these conditions would be remedied in the near future, or if ever.

Persistent instability and the resulting inability to integrate children into a stable permanent home can establish subsection (g)(3)(A) by clear and convincing evidence.

State of Tennessee v. Burnette · filed 2004-05-27(g)(3)(A)

The evidence of failure to remedy persistent conditions is so overwhelming that it outweighs all other considerations. As the trial court held, Jamie Burnette has never led a stable life but has followed the example of her mother in subordinating all other considerations to the pursuit of personal pleasure. These children have little chance of ever being integrated into a stable and permanent home as long as these unremedied conditions continue to exist. By clear and convincing evidence, grounds for termination of parental rights have been established.

Persistent conditions may be established by a continuing pattern of leaving the family, showing no interest after learning the children are in state custody, and committing crimes that result in incarceration.

State of Tennessee Department of Children's Services v. F.S.B. · filed 2005-01-28(g)(3)(A)

The evidence establishes a pattern of Father leaving his family due to disagreements with Mother and failing to show any interest in his children when he returned to town, even upon learning that the children were in state custody. In addition, Father committed serious crimes just one month after meeting with the DCS case worker about his children. Because of his crimes, Father was sentenced to serve two consecutive terms of 11 months, 29 days in jail. Based upon Father’s obvious lack of interest in the children, as well as his criminal behavior, the trial court found that the evidence showed clearly and convincingly that Father had failed to remedy these persistent conditions. See Tenn. Code Ann. § 36-1-113(g)(3)(A). We hold that the evidence does not preponderate against these findings, and accordingly, we find that the trial court properly found grounds for terminating Father’s parental rights.

Persistent conditions are established where children remain in DCS custody beyond six months and the parent continues drug abuse, repeated parole violations, inadequate housing, and inability to meet basic needs, making early remediation unlikely.

In the matter of: T.L.M., T.L.J., and T.J.B, Jr. · filed 2004-11-19(g)(3)(A)

The record clearly evidences a history of neglect, and we agree with the trial court that these conditions are unlikely to be remedied in the near future, particularly in light of Mother’s numerous parole violations and history of drug abuse. We also agree that the continuation of the parent-child relationship diminishes the children’s chances of early integration into safe, stable, and permanent homes.

Persistent inability to provide for children because of incarceration, deportation, and unresolved international barriers can satisfy subsection (g)(3)(A) when the conditions have lasted years and are unlikely to be remedied soon.

State of Tennessee Department of Children's Services v. Ahmad · filed 2005-04-26(g)(3)(A)

Tenn. Code Ann. §36-1-113(g)(3)(A). The record provides clear and convincing evidence to support the finding that the mother has been unable to provide for the children for more than six years, that she has been unable to remedy the conditions which led to the removal of her children, and that there is little likelihood, if any, that these conditions will be remedied at an early date.6 That is sufficient to establish one ground for termination, See State v. Layne, No. M2001-00652-COA-R3-JV, 2002 WL 126320 (Tenn. Ct. App. Feb. 1, 2002), and the existence of any one of the statutory grounds will support a termination of parental rights.

Subsection (g)(3)(A) is not limited to the conditions that caused removal; continuing domestic violence, drinking, and lack of independent housing may be “other conditions” preventing a child’s safe return.

In the Matter of D.B. (d.o.b. 6/2/01) State of Tennessee Department of Children's Services v. Ramona Bokan and Aire Thom · filed 2005-06-13(g)(3)(A)

The statute, however, states that grounds for termination are established not only if the original conditions which led to removal still exist, but also if “other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s safe return to the care of the parent(s) . . . still persist. . . .” There is ample evidence to support the trial court’s conclusion that Mother had failed to establish a home and financial stability apart from Father, and that so long as Mother and Father were residing together there would be drinking and domestic problems in the home. Clearly this precludes the safe return of D.B. to their care.

The persistent-conditions ground encompasses other conditions that would probably cause further abuse or neglect, including manipulative and unlawful conduct demonstrating that the parents' inability to remedy the circumstances leading to removal continues.

In Re MAR · filed 2005-08-11(g)(3)(A)

Each of the aforementioned episodes demonstrate that DCS has clearly and convincingly proven each of the requirements for persistent conditions found in section 36-1-113(g)(3)(A) of the Tennessee Code.

Substantial noncompliance and persistent conditions are not clearly and convincingly established where an incarcerated parent made significant progress on the permanency plan and had an imminent parole hearing, making incarceration likely to be remedied at an early date.

State of Tennessee Department of Children's Services v. M.C.M.M.C. and M.E.C. · filed 2005-09-07(g)(2), (g)(3)(A)

We hold that the evidence preponderates against the trial court’s conclusion that there was clear and convincing evidence that the requirements of Tenn. Code Ann. § 36-1-113(g)(3)(A) were met in this case.

Persistent conditions are established when the parent remains unstable in housing and employment, continues illegal drug use, and refuses to acknowledge the drug problem after the children have been removed for well over six months.

State, Department of Children's Services v. S.M.D. · filed 2006-02-15(g)(3)

As discussed above, Mother has failed to maintain any stability in housing or employment. Mother continues to use illegal drugs and refuses to acknowledge that her drug use is a problem. After considering the record as a whole, we hold that the Juvenile Court did not err when it concluded there was clear and convincing evidence to terminate Mother’s parental rights pursuant to Tenn-Code Ann. § 36-l-113(g)(3). The Juvenile Court’s judgment on this issue is, therefore, affirmed.

Continuing unsafe and unsanitary housing, repeated unsafe relationships, and failure to improve after years of services establish persistent conditions under subsection (g)(3).

State Department of Children's Services v. B.J.N. · filed 2007-08-08(g)(3)

The evidence does not preponderate against the Juvenile Court’s detailed findings. We, therefore, hold that the Juvenile Court properly found by clear and convincing evidence that grounds existed under Tenn.Code Ann. § 36 — 1—113(g)(3) to terminate Mother’s parental rights to the Child.

Mere poverty is not a termination ground, but a parent’s refusal to pursue offered housing and continued exposure of the children to an acknowledged abuser can establish persistent conditions under subsection (g)(3)(A).

In the Matter of: M.A.B, D.C.M, M.A.M, M.I.M, D.Z.M and W.M.E.M. · filed 2007-08-20(g)(3)(A)

We also note at the outset that mere poverty is neither ground nor arguable reason for the termination of a parent’s rights. In Re: DMD & JLA, No. W2003-00987-COA-R3-PT, 2004 WL 1359046, at *5 (Tenn. Ct. App. June 17, 2004). In this case, however, Mother’s unwillingness to pursue every outlet offered her by DCS to obtain continuous housing and utilities, in conjunction with her willingness to expose her children to her admittedly abusive boyfriend, and the persistence of these conditions for nearly two years following removal of the children from her care in April 2005, provide grounds for the termination of her parental rights under Tennessee Code Annotated § 36-1-113(g)(3)(A).

Persistent illegal-drug use and uncertain incarceration can establish that a parent is unlikely to provide a safe, stable, drug-free home in the near future under subsection (g)(3).

State of Tennessee, Department of Children's Services v. Brennon Harville and Jimmy Harville, Sr. · filed 2009-04-09(g)(3)

We note that at the time of trial it was uncertain how long Father would have to spend incarcerated. ... Based upon these facts there was little likelihood Father could establish a safe, stable and drug-free home for the children to return to at an early date or even in the near future. ... The Juvenile Court did not err when it held that DCS proved all three prongs of Tenn. Code Ann. § 36-1-113(g)(3) by clear and convincing evidence and when it terminated Father’s parental rights.

Persistent conditions under subsection (g)(3) may be conditions other than those that originally caused removal if they probably would expose the children to further abuse or neglect and prevent a safe return.

In the Matter of: A.L.B, d/o/b 09/16/1998, M.L.B.,Jr. d/o/b 12/24/2000, and M.L.B d/o/b 04/19/2002 · filed 2009-06-30(g)(3)

The trial court may, therefore, terminate parental rights if any conditions persist that would cause the child to be subject to further abuse or neglect. ... Upon a thorough review of the record, we find that there is clear and convincing evidence of conditions that it is reasonably probable would cause the children to be subjected to further abuse and neglect and that, therefore, prevent the children’s return to Father’s care. It was not necessary that the trial court find that the same condition persisted as for which the children were originally removed from Father’s care.

The persistent-conditions ground encompasses not only the conditions directly causing removal but also other conditions that would probably subject the child to further abuse or neglect and prevent safe return.

In the Matter of: Haven A. B. · filed 2010-04-28(g)(3)(A)

We note, however, that Tenn. Code Ann. § 36-1-113(g)(3)(A) specifies that the ground of persistence of conditions does not apply only to those conditions that directly led to the child’s removal but also to “other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect. . .”

Persistent conditions are established when a parent continues to deny domestic-violence and substance-abuse problems despite convictions and admitted drug use while caring for the child, leaving no indication of near-term readiness to resume parenting.

In Re: Breanna A.L. · filed 2011-11-03(g)(3)

The record does not even hint that Father is soon to be in any position to resume a parental role with the Child.

Persistent conditions are established when the parent’s continuing instability, unsuitable housing, and failure to make lasting adjustments still prevent safe return and are exceedingly unlikely to be remedied.

In the Matter of: D.C., Jr., G.C., D.C., and H.C. · filed 2012-09-17(g)(3)

We find that the evidence in the record supports the Juvenile Court’s holding that the conditions which led to the children’s removal, or that in all reasonable probability would subject these children to further abuse and neglect, still persist and prevent their safe return. Thus, we find that the Juvenile Court did not err in holding that the ground of persistent conditions was established by clear and convincing evidence.

Persistent dangerous parenting, dishonesty, instability, and failure to accept responsibility after four years of extensive services establish that the conditions preventing safe return are unlikely to be remedied soon.

In Re: Holly B.C. · filed 2012-12-27(g)(3)

Thus, it is clear that conditions that led to removal or other conditions that would cause the Children to be subjected to further abuse/neglect still persisted, and that these conditions prevented the Children’s safe return to the care of the parents. It is equally clear that, after four years and despite “exhaustive” and costly efforts by DCS, there is little likelihood that these conditions would be remedied at an early date so that the Children could be safely returned to the parents in the near future.

A six-year incarceration alone does not establish persistent conditions where the legislature requires at least ten years before mere incarceration itself becomes a termination ground.

In Re: Emilie A.M. · filed 2012-09-17(g)(3)

Accordingly, we conclude that the trial court erred in relying on section 36-1-113(g)(3) as a statutory ground for termination.

Subsection (g)(3) is established when the parent makes no material change to unsafe conditions, those conditions are unlikely to be remedied soon, and the legal relationship delays stable placement.

In Re Kaylee F. · filed 2013-03-15(g)(3)

Based upon the foregoing, and other compelling evidence in this record, we find the evidence clearly and convincingly supports the trial court’s findings that Mother made no material changes to the conditions that existed when the children were removed in September 2010, that there is little likelihood that these conditions will be remedied at an early date so that the children may be safely returned to Mother in the near future, and that the continuation of the parent and child relationship greatly diminishes the children’s chances of early integration into a safe, stable, and permanent home. For these reasons, we affirm the trial court’s finding that the paternal grandparents proved the “persistent conditions” ground for termination of Mother’s parental rights by clear and convincing evidence pursuant to Tennessee Code Annotated § 36-1-113(g)(3).

Persistent conditions are established when a parent remains unwilling to remove a dangerous partner and still lacks a suitable home more than a year after removal.

In Re: Stephen B. · filed 2013-07-31(g)(3)

Mother did not take appropriate steps to remove Lewis S. from her life and appeared unwilling to do so. She had also failed, by her own admission, to maintain a home suitable for the Children by the time of trial. As such, it would not be safe for the Children to be returned to her. We conclude that the conditions leading to removal of the Children still persisted at the time of trial, more than a year following.

Financial instability and lack of suitable housing establish persistent conditions under subsection (g)(3) when they are unlikely to be remedied soon enough for safe reunification.

In Re: Brandon T. · filed 2013-04-17(g)(3)

Moreover, there is little likelihood that Father’s financial instability and lack of suitable housing will be remedied in the near future so the children could be safely reunited with him. Accordingly, we affirm the trial court’s finding that the Department proved the “persistent conditions” ground for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(3).

Persistent conditions are established where incarceration and drug abuse caused removal and the parent offers only vague promises, unsupported by action, that those conditions will change.

In Re: Aayden L. B. · filed 2013-07-30(g)(3)

There has been no showing that the conditions which led to removal have changed, only vague promises not supported by actions. On the contrary, the evidence indicates that nothing has changed.

A parent's incarceration alone cannot qualify as an 'other condition' under persistent conditions because the legislature separately addressed incarceration in subsection (g)(6).

In Re Chandler M. · filed 2014-07-21(g)(3)

Father’s incarceration, standing alone, cannot support this ground of termination as an “other condition” when the legislature has already provided for termination due to a parent’s incarceration pursuant to section 36-1-113(g)(6). ... Accordingly, we conclude that the trial court erred in relying on section 36-1-113(g)(3) as a statutory ground for termination.

Persistent drug abuse that caused removal and remained unaddressed supported both persistent conditions and substantial noncompliance with a permanency plan.

In Re: Yariel S. · filed 2016-12-29(g)(2), (g)(3)

Drug abuse was the basis for the Children’s removal from Father in the first place, and Father’s failure to address his drug abuse is not a mere detail but the central point in the case. On the other hand, the evidence in the record is that the Children are thriving in foster care. We find and hold, as did the Juvenile Court, that the evidence is clear and convincing that it is in the Children’s best interest for Father’s parental rights to be terminated.

Persistent environmental-neglect conditions may support subsection (g)(3) despite some parental improvements when the conditions still would probably subject the children to further abuse or neglect.

In Re: Renaldo M. Jr. · filed 2016-12-30(g)(3)

Upon our review of the testimony and other evidence, and in obedience to the clear and convincing standard we are to apply to the evidence in our review of this case, and with due deference given to the trial court‘s findings, we affirm the holding that the environmental neglect conditions giving rise to the children‘s removal persist and would, in all reasonable probability, subject the children to further abuse or neglect.

Persistent environmental neglect was established where the parents repeatedly maintained unsafe, animal-filled homes and violated orders excluding unapproved people, creating a continuing risk of neglect or abuse.

In Re: Savannah M. · filed 2019-01-28(g)(3)

We conclude that, if S.L.M. were to be returned to the custody of Mother and Father, she would be put at risk of further neglect and abuse due to their inability to abide by the requirements set forth in numerous permanency plans and trial court orders. Accordingly, the evidence clearly and convincingly establishes the elements necessary to terminate Mother’s and Father’s parental rights as to S.L.M. on the ground of persistence of conditions.

Persistence of conditions focuses on the results of the parent’s improvement efforts and whether the child can likely return safely, rather than whether the child can safely remain in foster care.

In re Makenzie P. · filed 2016-09-30(g)(3)

The persistence of conditions ground focuses “on the results of the parent‟s efforts at improvement rather than the mere fact that he or she had made them.” Id. at 874. The goal is to avoid having a child in foster care for a time longer than reasonable for the parent to demonstrate her ability to provide a safe and caring environment for the child. In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other grounds, In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). The question before the court, therefore, is “the likelihood that the child can be safely returned to the custody of the [parent], not whether the child can safely remain in foster care . . . .” In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000).

Persistence of conditions does not require proof that the parent-child relationship is unsalvageable or that the parent is currently harmful; the inquiry is whether the child can likely be returned safely rather than remain in foster care with visits.

In Re: Saliace P. · filed 2016-01-26(g)(3)

In cases involving this ground, it is not necessary to prove that a parent-child relationship cannot be salvaged, nor is it necessary to show that a parent is currently harmful to a child‟s safety or future emotional stability. In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000). The statutes governing termination of parental rights recognize a child's need for a permanent, stable environment. Id. Accordingly, the question is the likelihood that the child can be safely returned to the custody of the parent, not whether the child can safely remain in foster care with periodic visits with the parent. Id.

Persistence of conditions is established when the removal conditions remain unresolved, are unlikely to be remedied soon, and continuation of the parental relationship impedes a safe, permanent placement.

In Re Kailee M.G. · filed 2015-03-27(g)(3)

We find and hold that clear and convincing evidence was proven of grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(3) and that clear and convincing evidence was proven that it was in the Child’s best interest for Mother’s parental rights to be terminated, and we affirm.

Subsection (g)(3)(A)’s six-month period is only the minimum time a child must be removed before the ground applies; the parent’s deadline for remedying conditions is established by the permanency plan.

In Re M.J.M., Jr., L.P.M., & C.A.O.M. · filed 2005-04-14(g)(3)(A)

The Department appears to be arguing here that Tenn. Code Ann. § 36-1-113(g)(3)(A) requires a parent to remedy the conditions which led to the child’s removal within six months immediately following the removal. This is not what the statute says. The statute simply states that the child must be removed from the home for a period of six months before this ground will apply. The time for compliance is established in the permanency plan.

The six-month removal period need not immediately precede the termination petition, and a trial home visit that leaves legal custody with DCS does not restart the period or require another dependency finding.

In Re: A.R. (DOB 8/13/05) A Child Under Eighteen Years of Age · filed 2008-10-13(g)(3)

The statute does not require that the six-month period immediately precede the filing of the termination petition, as Mother assumes. ... Furthermore, the “trial home visit” did not return custody of A.R. to Mother. ... We reject Mother’s argument that a second judicial finding of dependency, neglect, or abuse was required when A.R. was removed from her home, when Mother only had temporary, physical custody of A.R. in the first place.

Subsection (g)(3) cannot apply to an incarcerated parent from whose home the children were never removed because he never had custody of them.

In Re: Maria B.S. · filed 2013-04-01(g)(3)

We agree with Father as to this issue. Father was incarcerated at the time of the Children’s birth. No one removed the Children from Father–he never had the Children in the first place. There is case precedent to support Father’s position that, without removal from that parent’s home, the ground of persistent conditions is inapplicable. See In re T.L., No. E2004-02615-COA-R3-PT, 2005 WL 2860202, at *7 (Tenn. Ct. App. Oct. 31, 2005), Rule 11 appl. perm. appeal denied Feb. 17, 2006; In re D.L.B., No. W2001-02245-COA-R3- CV, 2002 WL 1838147, at *9 (Tenn. Ct. App. Aug. 6, 2002), rev’d on other grounds, 118 S.W.3d 360 (Tenn. 2003); In re B.P.C., M2006-02084-COA-R3-PT, 2007 WL 1159199, at *7 (Tenn. Ct. App. April 18, 2007), no appl. perm. appeal filed. The Foster Parents offer no compelling counterargument, and we decline to depart from this precedent. The Trial Court erred in finding and holding that clear and convincing evidence exists to terminate Father’s parental rights under the ground of persistent conditions.

The persistent-conditions ground cannot rest on alcohol use when drug use was the condition that led to removal and the evidence does not clearly and convincingly show continued drug abuse.

In Re Jayden G. · filed 2014-09-30(g)(3)

In this case however, much like in C.M.C., the reason the child was removed from Mother was drugs, not alcohol. See Tenn. Code Ann. § 36-1-113(g) (basing persistence of conditions on “[t]he conditions that led to the child’s removal”). Indeed, the trial court’s order removing the child from Mother’s custody makes no mention of any alcohol abuse on the part of Mother. ... Thus, while Mother’s use of alcohol may be ongoing, and a proper consideration with regard to the best interest of the child, it is not an appropriate consideration with regard to the ground of persistence of conditions.

The removal-order prerequisite for persistent conditions is satisfied as to both parents when the child alternated homes and the court order removed the child from the care, custody, or control of both parents.

In re Alleyanna C. · filed 2015-08-10(g)(3)

Under the specific circumstances of the case at bar, we determine that the Child was removed by court order from Father‟s home as well as Mother‟s home. ... We therefore determine that the Child was removed by court order from Father‟s home as well as Mother‟s home and that DCS established the threshold consideration for this statutory ground.

A permanent parenting plan is not an order removing a child from the parent's home and therefore does not satisfy subsection (g)(3)'s removal-order predicate.

In re Hope A. · filed 2015-11-17(g)(3)

We conclude this statutory ground of termination is inapplicable to Father. We do not find the permanent parenting plan to be an “order of a court” by which “[t]he Child has been removed from the home of the parent.” See Tenn. Code Ann. § 36-1-113(g)(3).

The six-month removal period for persistent conditions is unambiguous and cannot be satisfied by aggregating earlier removal periods when the current removal lasted less than three months before filing.

In re Kaitlin W. · filed 2016-05-16(g)(3)

According to DCS, we should look to the ―aggregate time‖ the Children were removed from Father over the long course of this case from circa 2010 through 2014. This is a novel argument, but DCS cites to no case law supporting such an expansive reading of the statute. The statute is quite clear on this point. One required element of persistent conditions is that the child has been removed from the home of the parent or guardian by court order for a period of at least six months. Deceit or no deceit, the statute is unambiguous as to this time requirement.

Persistent conditions may include both the original removal conditions and other continuing conditions that prevent the children’s safe return.

In re Quadavon H. · filed 2016-06-16(g)(3)

The court made extensive findings regarding Mother‟s living situation, drug abuse treatment, employment, and efforts to receive counseling and training in parenting skills since the children were removed. Upon our review, these findings are supported by clear and convincing evidence and establish that the conditions which led to the children‟s removal persisted, along with other conditions preventing their safe return, within the meaning of Tenn. Code Ann. ' 36-1-113(g)(3)(A).

Subsection (g)(3)'s threshold is not met when the children were neither removed from the respondent parent's home nor removed by an order adjudicating dependency and neglect.

In Re Rylee R. · filed 2016-08-11(g)(3)

Because the Children were not, in fact, removed from Mother’s home, nor by an order adjudicating dependency and neglect, we conclude that Appellee failed to meet the threshold requirement for application of the ground of persistent conditions. Accordingly, we reverse the trial court’s finding that Mother’s parental rights should be terminated on this ground and turn to the remaining ground of substantial noncompliance with the requirements of the permanency plan.

Subsection (g)(3) may be considered when a child was adjudicated dependent and neglected because of the parent's inability to provide care and was first placed with a relative as an alternative to DCS custody before later entering DCS custody.

In Re Gabriella M. · filed 2016-08-15(g)(3)

Here, the Child was adjudicated as dependent and neglected and placed with Grandmother as an alternative to DCS custody when it was determined that Mother could not adequately care for the Child. The Child was then removed from Grandmother and placed into DCS custody based upon Grandmother‟s inability to provide a suitable home. With these considerations in mind, we hold that the facts of this case support the court‟s consideration of this statutory ground of termination.

Subsection (g)(3) requires evidence that the child was removed from the home or custody of the particular parent whose rights are at issue.

In Re Heaven J. · filed 2016-12-22(g)(3)

As it is, the record contains no evidence that Heaven was removed from Father’s home or custody. Consequently, the ground of persistent conditions cannot serve as a basis for terminating his parental rights, and we reverse the trial court’s finding to the contrary.

Subsection (g)(3) does not apply when the children were not removed from the home of the parent whose rights are at issue.

In re S.P. · filed 2017-01-25(g)(3)

Based on the plain language of Tenn. Code Ann. § 36-1-113(g)(3), we agree. “[T]his Court has . . . held that the ground of persistence of conditions leading to the removal of the child is not applicable when the child was not removed from the home of the parent whose rights are at issue.”

Subsection (g)(3) does not apply when the children were not residing in the respondent parent's home when they were removed.

In Re Miracle M. · filed 2017-08-30(g)(3)

Based on the foregoing authority, we hold that the statutory ground of persistence of conditions is not applicable to Father under the facts presented here insomuch as the record contains no evidence to suggest that the Children were residing in Father's home at the time of their removal.

Subsection (g)(3) cannot be affirmed without the predicate adjudicatory order establishing that the child was dependent or abused.

In Re Brantley B. · filed 2017-10-30(g)(3)

In the absence of same, and given the fundamental constitutional rights at issue and heightened standard of proof applicable to this case, we are unable to affirm the holding that termination on the ground of persistence of conditions was established by clear and convincing evidence. Accordingly, we reverse the termination of Mother’s rights on the ground of persistence of conditions.

The persistent-conditions ground does not require that the removed child be placed in foster care.

In Re Alivia F. · filed 2018-01-30(g)(3)

Under the plain language of the statute, however, the child need not be in foster care for this ground to apply.

Subsection (g)(3) requires proof of an adjudicatory order finding the child dependent and neglected; allegations or other indications that such an order exists are insufficient.

In Re Dylan S. · filed 2019-10-23(g)(3)

In the absence of the necessary adjudicatory order on dependency and neglect, we conclude that Appellees have failed to meet their burden to show, by clear and convincing proof, that the conditions that led to the Child’s removal from Mother persist. As such, we reverse the trial court’s termination of Mother’s parental rights on this ground.

Subsection (g)(3)(A) permits consideration of later conditions likely to cause further abuse or neglect, not only the conditions expressly supporting the dependency-and-neglect finding.

In Re Antonio J. · filed 2019-11-25(g)(3)(A)

This ground for termination, however, is not limited only to those conditions that led to the child’s removal, but allows the court to also consider “other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect[.]” Tenn. Code Ann. § 36-1-113(g)(3)(A). Thus, neither the trial court nor this Court is confined in our review only to those conditions that were expressly found to support the dependency and neglect findings.

The persistent-conditions ground is not limited to the conditions that caused removal and permits consideration of other conditions likely to expose the child to further abuse or neglect.

In re Raylan W. · filed 2020-08-20(g)(3)

This ground for termination . . . is not limited only to those conditions that led to the child’s removal, but allows the court to also consider “other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect[.]” ... Thus, neither the trial court nor this Court is confined in our review only to those conditions that were expressly found to support the dependency and neglect findings.

A child need not already be in a pre-adoptive foster home for continuation of the parent-child relationship to diminish the child’s chances of integration into a safe, stable, permanent home.

In Re James W. · filed 2021-07-06(g)(3)

Placement of the children in a pre-adoptive foster home is not required to find that the final element of this ground for termination has been met under Tennessee Code Annotated § 36-1-113(g)(3)(A)(iii).

A trial home visit gives a parent temporary physical custody but does not return legal custody or create a new custodial episode for the persistent-conditions ground.

In Re Octavia C. · filed 2022-01-24(g)(3)

This Court has explained that a trial home visit does not return custody to the parent, but only temporary, physical custody. See In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *16 (Tenn. Ct. App. Oct. 13, 2008) (holding that the trial home visit did not return custody of the child to the mother).

The court-ordered removal of the child is a threshold element of persistent conditions, and the ground cannot stand when the removal order is absent from the record.

In Re Kamahri W. · filed 2024-03-22(g)(3)

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.

After the 2018 amendment, the persistent-conditions ground's removal threshold is satisfied by a court order removing the child from the parent's home, physical custody, or legal custody, and the order need not be a final dependency-and-neglect adjudication.

In Re Skyler M. · filed 2025-08-19(g)(3)

Following an amendment in 2018, however, this threshold consideration is satisfied when the child is removed from ... either the home, physical custody, or legal custody of the parent by a court order. ... The amendment also obviates the need for a final order adjudicating the child dependent and neglected, as the relevant removal order can be entered at any point during a dependency and neglect proceeding.

The persistent-conditions ground was not established where the child had never resided in, and therefore was not removed from, the parent's home.

In Re Cayla C. · filed 2025-08-28(g)(3)

Cayla never resided in Mother’s home. Thus, she was not removed from Mother’s home. Accordingly, we vacate the finding that this ground was established.

Section 36-1-113(g)(3) cannot support termination when the record contains only a probable-cause finding, rather than an order actually finding the child dependent, neglected, or abused before the final termination order.

In Re Jabari B. · filed 2018-02-02(g)(3)

While the magistrate found probable cause to believe the Child was dependent and neglected by order entered on May 27, 2015, the record is devoid of evidence of an order actually finding the Child as such until entry of the final order on February 1, 2016. ... Accordingly, we hold that the court erred in relying upon Section 36-1-113(g)(3) in terminating Mother’s parental rights.

Under the pre-2018 version of subsection (g)(3), the six-month removal period ran from entry of the dependency-and-neglect adjudicatory order, so the ground did not apply when that order postdated the termination petition.

In Re Frederick S. · filed 2018-12-26(g)(3)

In this case, although the adjudicatory hearing on the petition for dependency and neglect was held on May 18, 2017, the juvenile court did not enter an order on the hearing until September 5, 2017, a week after the petition for termination was filed. So the statutory ground of persistence of conditions does not apply.

Under the pre-2018 version of subsection (g)(3), a preliminary probable-cause removal order is not a dependency-and-neglect adjudication and cannot support termination for persistent conditions.

In Re: Draven K. · filed 2020-01-07(g)(3)

In the absence of a judicial finding of dependency, neglect or abuse, by clear and convincing evidence, persistence of conditions under Tennessee Code Annotated section 36-1-113(g) cannot be a ground for termination of parental rights. Accordingly, we reverse the trial court’s termination of Mother’s parental rights on the ground of persistence of the conditions that led to the child’s removal from Mother’s custody.

For persistent conditions under the post-2018 statute, the juvenile court's removal order need not be final if it was entered at any stage of a proceeding on a dependency-and-neglect petition.

In Re Braden K. · filed 2020-09-30(g)(3)

Thus, the juvenile court order that removed the child from custody need not be final in order for persistence of conditions to be established.

Section 36-1-113(g)(3)'s persistent-conditions ground did not apply when the children were removed from their grandmother's home rather than the mother's home.

In Re Homer D. · filed 2018-03-09(g)(3)

We specifically observe that during the trial of this case, one of the Department’s family service workers expressly stated that “[Mother] did not live at the home the children were removed from.” The Department concedes in its appellate brief that this ground for termination is not applicable, and given our agreement on this issue due to the absence of appropriate proof, we reverse the Juvenile Court’s order as it relates to the persistence of conditions ground.

A child may be removed from a parent's “home” for purposes of Section 36-1-113(g)(3) even when the parent was homeless and living in a motel.

In Re: Authur R. · filed 2018-04-03(g)(3)

By contrast, in the case at bar, it is undisputed that the Child was in Mother’s custody from the time of his birth until his removal, such that he was clearly removed from her “home.” The fact that Mother was “homeless” and living in a motel does not alter this analysis. ... We accordingly affirm the trial court’s finding by clear and convincing evidence that the conditions leading to removal of the Child from Mother’s home persisted.

Subsection (g)(3) is unavailable when the children were in a third party's custody rather than either respondent parent's custody when they entered DCS custody.

In Re Kah'nyia J. · filed 2018-04-30(g)(3)

The proof in this case is clear that, at the time that both children came into DCS custody, they were in the custody of Ms. S, not in that of either parent. As in the In re Jayden B.T. decision, we hold that the ground of persistence of conditions is not available as a ground to terminate the rights of either parent, and reverse the court’s finding as to persistence of conditions as a statutory ground for terminating Mother’s and Father’s parental rights.

Subsection (g)(3) cannot be established without the predicate court order removing the children based on a judicial finding of dependency, neglect, or abuse.

In Re J.T.,Et Al. · filed 2018-05-10(g)(3)

DCS is correct to observe that a final adjudicatory dependency-and- neglect order that removes the children from the parents’ home is a prerequisite for terminating parental rights on the ground of persistence of conditions.

Subsection (g)(3) is unavailable if the termination petition is filed before the child has been removed for the required six months.

In Re Seth Mc. · filed 2018-06-20(g)(3)

DCS does not defend the ground of persistence of conditions on appeal, explaining that it failed to wait the requisite six-month period after Morgan was removed from Mother’s care before filing its termination petition. See Tenn. Code Ann. § 36-1-113(g)(3). A review of the record reveals that DCS is correct in its assertion. Thus, we conclude that the trial court erred in terminating Mother’s parental rights based on this ground.

The pre-2018 version of subsection (g)(3) applied only when a court order removed the child from the respondent parent’s custody because of dependency, neglect, or abuse.

In Re Billy C. · filed 2018-11-01(g)(3)

The version of the statute in effect when the termination petition was filed applied only to situations where a court had entered an order removing the child at issue from a parent’s custody due to dependency, neglect, or abuse.

Children are removed from a parent’s home for purposes of persistent conditions when they were living with the parent at removal, even if they had recently stayed nights with a grandparent by informal arrangement.

In Re Mahaley P. · filed 2020-01-09(g)(3)

The Children were removed and placed in DCS custody on October 12, 2016, which was a Wednesday. Mother and Father were residing together at the time, and the Children had been living with them exclusively for at least several days. We find and hold that the Children were removed from the home of the parents for purposes of Tennessee Code Annotated § 36-1-113(g)(3).

The persistent-conditions ground requires that the child was both adjudicated dependent and neglected and removed from the respondent parent’s home.

In Re: Kelty F. · filed 2020-04-24(g)(3)

In In re Mickia J., this Court held that, “as a threshold requirement for applicability of the ground of persistence of conditions in termination of parental rights cases, the child must not only have been adjudicated dependent and neglected, but he or she must also have been removed from the defendant parent’s home.” In re Mickia J., No. E2016-00046-COA-R3-PT, 2016 WL 5210794, at *5 (Tenn. Ct. App. Sept. 19, 2016). Here, the trial court adjudicated the Child dependent and neglected and a victim of severe child abuse, and the Child was removed from Mother’s custody and placed in the custody of DCS on December 30, 2016.

Persistent conditions cannot be established when the appellate record lacks the required removal order; assumptions and the mere possibility of a qualifying order do not satisfy clear and convincing proof.

In Re Allie-Mae K. · filed 2020-11-24(g)(3)

Assumptions and surmises do not meet the clear and convincing standard. In re Michael O., No. W2017-01412-COA-R3-PT, 2018 WL 576777, at *8 (Tenn. Ct. App. Jan. 26, 2018). Based on the limited record before us, we are simply unable to determine, by clear and convincing evidence, whether the children were removed from Mother’s home or custody “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.” Tenn. Code Ann. § 36-1-113(g)(3)(A). We reverse this ground for termination.

Persistent conditions may apply when the child was removed from the parent's legal custody even if the parent was not physically residing in the home at the precise time of removal.

In Re: Porcalyn N. · filed 2021-05-21(g)(3)

Regardless of what exactly transpired on April 5, 2019, the Child was removed from Father’s legal custody that day and was later adjudicated dependent and neglected.

Persistent conditions is inapplicable to a parent when the child was neither removed from that parent’s home nor removed from that parent’s physical or legal custody by a qualifying order.

In Re Elijah R. · filed 2021-06-21(g)(3)

For these reasons, we conclude that the ground of persistent conditions is inapplicable to Father and reverse the trial court’s finding as to this ground for termination.

Persistent conditions cannot be sustained when the appellate record does not establish that a court order removed the children from the parent’s home or custody.

In Re Emma F. · filed 2022-02-25(g)(3)

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. Accordingly, we reverse this ground of termination and further vacate the order of termination in its entirety.

Persistent conditions cannot be established when the record lacks the qualifying court order removing the children from the parent’s home or custody.

In Re Miguel P. · filed 2024-06-07(g)(3)

Accordingly, we reverse this ground of termination. This determination, however, does not end our inquiry because only one ground of termination is necessary to support a termination decision. See Tenn. Code Ann. § 36-1-113(g).

Subsection (g)(4) permits termination when clear and convincing evidence shows that the parents severely abused their children.

Dept. of Children's Svcs. v. Mangrum · filed 1998-05-20(g)(4)

The record also contains evidence of abuse of the other children. Two weeks after A.M. was removed from the home, a day care worker observed J.R.A. beating the children with a stick while she cursed and screamed at them. Based on this evidence, we find that the Department has proved clearly and convincingly that J.R.A. and M.W.A., Sr. have abused their children in violation of Tenn. Code Ann. § 36-1-113(g)(4).

Subsection (g)(4) permits termination when clear and convincing evidence shows that the parents severely abused their children.

Matter of Mwa · filed 1998-05-20(g)(4)

Based on this evidence, we find that the Department has proved clearly and convincingly that J.R.A. and M.W.A., Sr. have abused their children in violation of Tenn.Code Ann. § 36-1-113(g)(4).

Subsection (g)(4) makes severe child abuse against the child or the child’s sibling or half-sibling a ground for terminating parental rights.

In re M.W.A. · filed 1998-05-20(g)(4)

In addition, Tenn.Code Ann. § 36 — 1— 113(g)(4) (1996) provides that severe child abuse against the child who is the subject of the petition or against the child’s sibling or half-sibling is grounds for termination of parental rights. The juvenile judge found that the Department established by clear and convincing evidence two grounds for terminating J.R.A.’s and M.W.A., Sr.’s parental rights— persistence of conditions and severe abuse of A.M. We agree. The evidence pi’esented to the juvenile judge overwhelmingly shows that A.M. was abused and that his removal from the home, as well as the removal of the other children, was proper.