IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 4, 2016
IN RE ANICIA B.
Appeal from the Juvenile Court for Sullivan County
No. J39722 Mark Toohey, Judge
________________________________
No. E2015-01424-COA-R3-PT
FILED-JUNE 16, 2016
_________________________________
The trial court terminated Mother‟s parental rights based on the grounds of abandonment
by failure to visit, abandonment by failure to provide a suitable home, substantial
noncompliance with the permanency plan, and persistent conditions and based on the trial
court‟s finding that it was in the child‟s best interest to terminate Mother‟s parental
rights. Mother appealed. We affirm.
Tenn. R. Civ. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. Steven Stafford,
P.J., W.S., and Charles D. Susano, Jr., J., joined.
Jared A. Williams, Kingsport, Tennessee, for the appellant, Annalin R.
Herbert H. Slatery III, Attorney General and Reporter, and Rebekah A. Baker, Senior
Counsel, for the appellee, Tennessee Department of Children‟s Services.
Claire A. Addlestone, Kingsport, Tennessee, guardian ad litem for the minor, Anicia B.
MEMORANDUM OPINION1
1
Tenn. R. Ct.App. 10 states:
This Court, with the concurrence of all judges participating in the case,
may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is
I. BACKGROUND
Annalin R.2 (“Mother”) gave birth to Anicia B. in July of 2012 in Kingsport,
Tennessee. Robert B. is the father (“Father”). Two or three months thereafter, Mother and
Father were evicted from their apartment. Mother left Anicia in the care of Mrs. Hurd
while they were trying to move to Massachusetts.3 Mother claims Ms. Hurd later refused
to return the child to her and that Mother contacted the police.
Mother remained in Tennessee. On November 14, 2012, the Department of
Children‟s Services (“DCS”) received a referral for allegations of abandonment and
parental drug addiction. Immediately thereafter, DCS created a non-custodial
permanency plan that required Mother to cooperate, supervise Anicia at all times, remain
drug free, participate in parenting classes, meet Anicia‟s physical and emotional needs,
and obtain a home. Mother participated in an alcohol and drug assessment, but she did
not comply with the assessment‟s recommendations for outpatient substance abuse
counseling regarding addiction and coping skills and participation in narcotics
anonymous. On November 21, 2012, Mother failed a second drug test for marijuana and
refused to take two other drug screens. According to her testimony, Mother was not
allowed to leave the DCS office with Anicia until she found someone who would
supervise her. No in-state person was found, so Anicia was removed from Mother and
placed with the Hurds. A dependency and neglect petition was filed December, 6, 2012
and Anicia was eventually adjudicated dependent and neglected by an order signed on
September 27, 2013. According to an uncontradicted affidavit filed by Kim Huening,
Mother admitted to taking percocet and loritab without a prescription and to being an
addict. Dr. Suzanne Smith, who provided Mother‟s Suboxone treatment4 at Clean Slate
Centers in Greenfield, Massachusetts, testified that Mother tested positive for cocaine
twice in August of 2013 and that the tests were not verified because all her other tests
were negative, except that she tested positive for marijuana “with regularity.” The use of
decided by memorandum opinion it shall be designated “MEMORANDUM
OPINION,” shall not be published, and shall not be cited or relied on for any
reason in any unrelated case.
2
In cases involving a minor child, it is this Court‟s policy to redact names in order to
protect the child‟s identity. In this case, we will alter the names of the child and both parents by
referring to their given name and the first letter of their surname.
3
Mother was not certain as to exactly when she left the child with the Hurds, testifying
that it was “September or October [2012], if I‟m correct.”
4
Dr. Smith testified that Suboxone is a principle treatment for opiate addiction. The drug
takes away the cravings. After a lengthy period of maintenance, the dosage is gradually reduced.
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marijuana is discouraged in the program of Suboxone treatment, but is not a reason to
discharge the patient from the program.
Mother moved to Massachusetts in March of 2013. She lived with family and
friends for a while and was homeless for four or five months. Four permanency plans
were created in this matter. DCS filed a petition to terminate Mother‟s and Father‟s
parental rights on October 9, 2013, based on the grounds of abandonment by failure to
visit, abandonment by failure to support, abandonment by failure to provide a suitable
home, substantial noncompliance with the permanency plan, and persistent conditions.
The trial court found as to Father that all these grounds existed and as to Mother all the
grounds except failure to support existed. The court also found that it was in the best
interest of the child that her parents‟ parental rights be terminated.5 Mother appealed.
II. STANDARD OF REVIEW
The standard for appellate review of parental termination cases was recently
reiterated by the Tennessee Supreme Court:
An appellate court reviews a trial court‟s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). Under Rule 13(d), appellate courts review factual findings de novo
on the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In light of the heightened burden of
proof in termination proceedings, however, the reviewing court must make
its own determination as to whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, amount to clear
and convincing evidence of the elements necessary to terminate parental
rights. The trial court‟s ruling that the evidence sufficiently supports
termination of parental rights is a conclusion of law, which appellate courts
review de novo with no presumption of correctness. Additionally, all other
questions of law in parental termination appeals, as in other appeals, are
reviewed de novo with no presumption of correctness.
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted), petition
for cert. filed sub nom.Vanessa G. v. Tenn. Dep’t of Children’s Servs. (U.S. Apr. 27,
2016) (No. 15-1317).
III. ANALYSIS
5
Father was served by publication and never participated in the case. The trial court
ordered a judgment by default against him. Father is not a participant in the appeal.
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Although a parent‟s right to the care and custody of a child is constitutionally
protected, it is not absolute. Id. at 522. “Tennessee law, thus, upholds the [S]tate‟s
authority as parens patriae when interference with parenting is necessary to prevent
serious harm to a child.” Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993). Tennessee
law lists the grounds for termination of parental rights. Tenn. Code Ann. § 36-1-
113(g)(1)-(13). A court must find by clear and convincing evidence that (1) at least one
of the statutory grounds for termination of parental rights has been established and, (2)
that termination of the parent‟s rights is in the best interest of the child. Tenn. Code Ann.
§ 36-1-113(c). Tennessee law lists several nonexclusive factors courts shall consider in
examining the best interest of the child. Tenn. Code Ann. § 36-1-113(i).
A. Grounds6
1. Abandonment by Failure to Visit
A parent‟s rights may be terminated upon proof by clear and convincing evidence
that the parent “abandoned” the child. Tenn. Code Ann. §§ 36-1-113(c)(1), (g)(1).
“Abandonment,” for purposes of terminating a parent‟s rights, is defined to include the
following:
For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the
parent or parents . . . , that the parent or parents . . . either have willfully
failed to visit or have willfully failed to support or have willfully failed to
make reasonable payments toward the support of the child.
Tenn. Code Ann. § 36-1-102(1)(A)(i). Willfulness is a critical element of the definition of
abandonment. Willful, in this context, means that “a parent who failed to visit or support
had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not
doing so.” In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing In re
Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005)); see In re Audrey S., 182 S.W.3d
at 863-64 (an individual acts willfully if he or she knows what he is doing and has the
intention to do what he or she is doing).
“Whether a parent failed to visit or support a child is a question of fact. Whether a
6
In In re Carrington H., our Supreme Court held that, “in an appeal from an order
terminating parental rights the Court of Appeals must review the trial court‟s findings as to each
ground for termination and as to whether termination is in the child‟s best interests, regardless of
whether the parent challenges these findings on appeal.” In re Carrington H., 483 S.W.3d at
525-26. We do not interpret In re Carrington H. as requiring the Court of Appeals to examine
grounds that are not found by the trial court to justify termination of parental rights.
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parent‟s failure to visit or support constitutes willful abandonment, however, is a question
of law.” In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re Adoption of A.M.H.,
215 S.W.3d 793, 810 (Tenn. 2007)). A court will not find a parent has abandoned his or
her child if the failure to support or to visit the child is outside his or her control. Id.
Because the termination petition was filed on October 9, 2013, the relevant four
month time period for abandonment for failure to visit is from June 8, 2013, through
October 8, 2013. Mother testified that she moved to Massachusetts in March 2013 and
did not see the child again until August 29, 2014. At the April 9, 2014,7 hearing, Kim
Huening, Mother‟s DCS case manager, testified as to the contents of the permanency
plan. She read the plan‟s requirements, including that “[t]he parents will contact DCS to
set up visitation with Anicia.” One of DCS‟s responsibilities was “to facilitate any
visitation that they need to provide hotel room or help with transportation.” Mother
maintained that she did not have the “financial assistance” to visit Tennessee. When
assistance was offered, Mother claimed that she took it. Mother testified the assistance
was not offered until June, 2014. Ms. Huening testified that, in July of 2013, DCS
offered to provide transportation to Tennessee for visitation, but both parents turned it
down, saying that they would never return to Tennessee. Ms. Huening testified that,
“Numerous times we told them we would assist them in seeing their child but they did
not wish to act on that.” The record is replete with DCS attempts to contact Mother,
offers of assistance for visitation, and attempts to work with Mother. Ms. Huening
testified that all were rebuffed:
A lot of our conversations were very heated and very irate. Both
parents cussing, swearing, threatening. A lot of information Annalin did not
provide me because it wasn't my business, she stated, her and Robert. She
wouldn‟t provide, any of the agencies, the Suboxone agency8 she didn‟t
provide that name or where. Some of the conversation it was she‟s doing it
and she wouldn‟t offer, even when she had a job they wouldn‟t tell me
where it was. I didn‟t find out until months and months later where it was
at. She wouldn‟t sign any releases so I couldn‟t get any documentation
from any facilities, employee, anyone.
Mother did not change her tune until court hearings began on the termination petition.
Ms. Huening testified that “[i]n June of 2014 Annalin gave me the number for Recover
7
Unfortunately, the proceedings in this matter were quite spread out, with hearings
occurring on December 9, 2013, April 9, 2014, June 25, 2014, September 22, 2014, November
21, 2014, March 23, 2015, and May 4, 2015.
8
The “Suboxone agency” would be the entity that provided Mother‟s Suboxone
treatments.
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Project that she‟s been working with. Then she started signing releases for me and gave
me agencies she was working with people‟s names and phone numbers.”
We concur with the trial court that DCS proved abandonment by failure to visit by
clear and convincing evidence.
2. Abandonment by Failure to Provide a Suitable Home9
Tennessee Code Annotated Section 36-1-113(g)(1) states that a ground for
termination of parental rights is abandonment by the parent or guardian, as defined in
Tenn. Code Ann. § 36-1-102. Tennessee Code Annotated Section 36-1-102(1)(A)(ii)
provides a definition of abandonment as follows:
The child has been removed from the home of the parent or parents
or the guardian or guardians as the result of a petition filed in the juvenile
court in which the child was found to be a dependent and neglected child,
as defined in § 37-1-102, and the child was placed in the custody of the
department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition is filed
finds, that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the circumstances
of the child‟s situation prevented reasonable efforts from being made prior
to the child‟s removal; and for a period of four (4) months following the
removal, the department or agency has made reasonable efforts to assist the
parent or parents or the guardian or guardians to establish a suitable home
for the child, but that the parent or parents or the guardian or guardians
have made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it appears
unlikely that they will be able to provide a suitable home for the child at an
early date.
Mother had been told by DCS of the need for a stable, suitable home in November
of 2012 through the plan she put together with Ms. Carrie McKinney. The child was
declared dependent and neglected on January 3, 2013. Four months following the
removal is May 4, 2013. Mother left Kingsport, Tennessee for Massachusetts in March
9
As the guardian ad litem points out, Mother failed to appeal this ground. In most
situations, we would consider such an issue to be waived. However, as stated above, supra note
2, our Supreme Court has held that we “must review the trial court‟s findings as to each ground
for termination and as to whether termination is in the child‟s best interests, regardless of
whether the parent challenges these findings on appeal.” In re Carrington H., 483 S.W.3d at
525-26.
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of 2013. She admitted she “couldn‟t get stable housing here in the State of Tennessee.”
She stayed with friends and family in Massachusetts and had no job. Her contact with
DCS was, in her words, “not that frequent.” Mother eventually became homeless for
several months. We agree with the trial court‟s statement that “[t]he record is replete
with reasonable efforts offered and implemented by the Department of Children‟s
Services.” Mother only started paying real attention after the termination petition was
filed and hearings began. We concur with the trial court that DCS proved abandonment
by failure to provide a suitable home by clear and convincing evidence.
3. Substantial Noncompliance with the Permanency Plan
A parent‟s parental rights may be terminated when “[t]here has been substantial
noncompliance by the parent or guardian with the statement of responsibilities in a
permanency plan pursuant to the provisions of title 37, chapter 2, part 4.” Tenn. Code
Ann. § 36-1-113(g)(2).
The trial court made a number of findings in this regard:
54. At the time of filing the petition for termination of parental rights
[Mother] was not in substantial compliance with her statement of
responsibilities on the plan.
55. Prior to filing the petition for termination she was in Suboxone
treatment, which in the Court‟s view is not a drug rehabilitation program.
56. When the petition for termination was filed she did not have
employment, she was homeless at times and living with friends.
57. Since the filing of the termination petition she has been drug
screened since June 2014, entered an alcohol and drug treatment program,
refrained from illegal drugs since September 2014. She signed releases for
DCS since 2014, she has stayed in contact with DCS and notified them of
relevant events, and medical information. She has completed a parenting
assessment and parenting classes, and some mental health treatment. On
March 16th 2015 she was determined eligible for vocational rehabilitation
services.
58. [Mother] is currently on a Suboxone regimen, and in the Court‟s
view although she is not using illegal drugs, she is still addicted to opiates.
It is being managed by physicians, but as in this case oftentimes people on
Suboxone will mix it with other drugs because they are still truly addicts.
[Mother] did that with marijuana, and marijuana laced with another drug as
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she testified to, perhaps heroin or cocaine.
59. [Mother] has not completed her alcohol and drug treatment and
according to the testimony she will not be released from her Suboxone
treatment anytime soon. She has not finished her anger management
counseling and it is clear to the Court that she needs that. She does not have
any means of financial support or employment, and would need services in
her home to make it safe for the child to return if and when she and the
child ever became bonded.
60. The Court finds that although [Mother] has done a lot, her
actions to satisfy the statement of responsibilities on the plan came too little
too late. The child has been in DCS custody since December 2012 and
[Mother] did nothing to speak of in the beginning of the case for many
months. This child needs and deserves permanency, which she has in her
foster home. Therefore the Court finds that [Mother] has not substantially
complied with her statement of responsibilities in the permanency plan.
We conclude that the findings of the trial court are all supported by the record,
except for paragraph 58. The uncontradicted testimony was that Mother‟s doctor did not
want to decrease the Suboxone at the time of her testimony because of the stress of the
termination proceedings. Furthermore, Dr. Smith testified, “Because Suboxone is a
partial opiate agonist she does not experience drug effects as she might on methadone, a
full agonist. She can continue to be fully functional while taking Suboxone. Suboxone
therapy would not interfere with her ability to care for her children.” Mother‟s
permanency plans specified that she was to remain free of illegal drugs. There was no
testimony or evidence that Mother‟s taking of Suboxone pursuant to a prescription was
illegal. Mother did admit to using marijuana. That activity violates the permanency plan.
We concur with the trial court that DCS proved substantial noncompliance with
the permanency plan by clear and convincing evidence.
4. Persistent Conditions
A parent‟s parental rights may be terminated when:
(3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child‟s removal or other conditions that in
all reasonable probability would cause the child to be subjected to further
abuse or neglect and that, therefore, prevent the child‟s safe return to the
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care of the parent or parents or the guardian or guardians, still persist;
(B) There is little likelihood that these conditions will be remedied at an
early date so that the child can be safely returned to the parent or parents or
the guardian or guardians in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child‟s chances of early integration into a safe, stable
and permanent home.
Tenn. Code Ann. § 36-1-113(g)(3).
The trial court made the following findings about this ground:
63. In regard to [Mother] at the time of filing the petition to terminate
parental rights nothing had changed with her situation that would make it
safe to return the child to her.
64. In spite of the progress [Mother] has made since the filing of the
petition, she is still addicted to opiates, she was using illegal drugs until
September 2013, she has unresolved anger issues, and no job, and needs
increased parenting skills; she has housing now but it has not been shown
to be suitable because the child has not been there and no one has been able
to observe the home.
65. The child and [Mother] do not have a bond, and it would endanger the
safety of the child to return her to the custody of her mother.
66. The Court has reviewed the exhibits and the record is replete with
reasonable efforts by DCS to offer assistance and services to the Parents,
including notices of meetings and hearings, drug screens, attempts to
contact the parents. These efforts were initially met with profanity from the
parents and their unwillingness to engage or cooperate. Once the parents
relocated to Massachusetts DCS contacted service providers there to
attempt to assist the parents. DCS provided funding and supervised
visitation.
67. Despite the recent Supreme Court ruling that reasonable efforts is no
longer an element to this type case10 the Court still finds that DCS has done
everything that would have been required of them in terms of reasonable
10
See In re Kaliyah S., 455 S.W.3d 533, 555-56 (Tenn. 2015).
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efforts in this difficult case.
Although the court did not address the six-month requirement, the record is clear that the
requirement is met in this case. The child had been removed from her parents‟ home for
over six months.
We concur with the trial court that DCS has proved the persistent conditions
ground for termination of Mother‟s parental rights by clear and convincing evidence.
B. Best Interest
Even when one or more grounds for terminating a parent‟s parental rights have
been proved by clear and convincing evidence, the trial court must examine whether
termination of those rights is in the best interest of the child. Tenn. Code Ann. § 36-1-
113(c)(2). A nonexclusive list of factors the trial court is to consider is found in Tenn.
Code Ann. § 36-1-113(i):
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child‟s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child‟s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent‟s or guardian‟s home is
healthy and safe, whether there is criminal activity in the home, or whether
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there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent‟s or guardian‟s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
“The relevancy and weight to be given each factor depends on the unique facts of each
case. Thus, depending upon the circumstances of a particular child and a particular
parent, the consideration of one factor may very well dictate the outcome of the analysis.”
In re Audrey S., 182 S.W.3d at 878.
The trial court made the following best interest findings concerning Mother:
70. [Mother] has made substantial progress toward the end of the case, but
at this point in the case and in the child‟s life . . . she does not have a bond
with the child, and the child would undergo severe psychological harm if
returned to her mother.
71. The child has substantially bonded with the Hurds, and [Mother‟s]
conduct with respect to still having failed to complete anger management
and needing more parenting education, it is just too little too late.
72. Neither [Father] nor [Mother] have made lasting changes in their
lifestyle and conduct so that lasting change does not appear probable.
Despite [Mother‟s] progress the Court finds that she has yet to establish that
her changes are lasting.
75. There is a relationship between the child and [Mother]; however, it is a
relationship of acquaintance and friendship. It is not a parent child
relationship from the child‟s point of view, in that the child would not look
to [Mother] for nurturing, comfort and all the things a child needs from a
mother.
76. It would have a horrible effect on the child to remove her from her
current
caregivers. The child looks to Mrs. Hurd for comfort and reassurance
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during her visitation with [Mother] because there is no meaningful
relationship between them.
77. It is in the child‟s best interest for termination because both [Father] and
[Mother] have abused drugs and abandoned the child.
Our examination of the record confirms the trial court‟s findings. Clear and convincing
evidence supports the trial court‟s finding that it is in Anicia‟s best interest to terminate
Mother‟s parental rights.
C. Nonattendance at Hearings
Mother includes a section in her brief entitled, “This Court Should Reverse the
Order Terminating Appellant‟s Parental Rights Because Appellant Failed to Understand
the Proceedings.” Mother did not include this issue in the Statement of the Issues of her
brief. “„Courts have consistently held that issues must be included in the Statement of
Issues Presented for Review required by Tennessee Rules of Appellate Procedure
27(a)(4). An issue not included is not properly before the Court of Appeals.‟” Bunch v.
Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App. 2008) (quoting Hawkins v. Hart, 86 S.W.3d
522, 531 (Tenn. Ct. App. 2001)); see also Cartwright v. Jackson Capital Partners, Ltd.
P’ship, 478 S.W.3d 596, 615 (Tenn. Ct. App. 2015) (quoting Bunch v. Bunch, 281
S.W.3d at 410). Thus, Mother‟s “argument” on this point should be considered waived.
Nevertheless, we note that Mother contends she “was not present for either the
Seventy-Two Hour Hearing or the Dependency and Neglect adjudication, because she
had been told by the Department that she did not need to be present.” Mother testified
that she never heard of a three-day hearing or seventy-two hour hearing. Yet, the Child
and Family Team Meeting Summary for December 4, 2012, a meeting Mother attended,
states that “TL [Team Leader] Robinette explained Foster care and court process with the
three day hearing, the 30 day hearing.” It also states as an action step that “[Mother] will
come to the 3 day hearing,” listing the person responsible as “[Mother].” The trial court
expressly discredited Mother‟s testimony in his oral ruling.
We also note that this Court recently stated:
A number of Tennessee cases stand for the proposition that dependency and
neglect proceedings are separate and distinct from termination proceedings
and that violations of a parent‟s due process rights in a dependency and
neglect proceeding are remedied by the procedural protections afforded in
termination proceedings. See, e.g., In re: L.A.J., III, W2007-00926-COA-
R3-PT, 2007 WL 3379785, at *6 (Tenn. Ct. App. Nov. 15, 2007), no appl.
perm. appeal filed; In re: S.Y., 121 S.W.3d 358, 366 (Tenn. Ct. App.
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2003).
In re Aniston M., No. E2015-02076-COA-R3-PT, 2016 WL 2626974, at *3 (Tenn. Ct.
App. May 5, 2016).
For any and all of the above reasons, we find that the so-called issue of Mother‟s
nonattendance at certain hearings is without merit.
IV. CONCLUSION
The decision of the trial court is affirmed. Costs are taxed against the Department
of Children‟s Services, and execution may issue if necessary.
_________________________________
ANDY D. BENNETT, JUDGE
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