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In re Aireona H. W.

Court of Appeals of Tennessee, Knoxville

August 20, 2014

In re AIREONA H. W. [1]

Assigned on Briefs June 30, 2014

Appeal from the Juvenile Court for Hamilton County No. 254987 Hon. Robert D. Philyaw, Judge

Berry Foster, Chattanooga, Tennessee, for the appellant, Amber W.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.

John B. Wysong, Chattanooga, Tennessee, guardian ad litem for the minor, Aireona H. W.

John W. McClarty, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and Thomas R. Frierson, II, J., joined.

OPINION

JOHN W. McCLARTY, JUDGE

I. BACKGROUND

Aireona H. W. ("the Child") was born to Amber W. ("Mother") and Eugene B. ("Father") in March 2011. The Child tested positive for illegal substances at birth. The Tennessee Department of Children's Services ("DCS") provided services to Mother to address the issue of drugs and domestic violence. Shortly thereafter, Mother moved to Georgia, causing DCS to close the case. A few months later, DCS received a second referral regarding Mother's care of the Child. DCS closed the case because Mother could not be located. A few months later, DCS received a third referral regarding Mother's care of the Child. DCS eventually located Mother, who had several active warrants for her arrest in Hamilton County, and removed the Child in March 2012. The Child was adjudicated as dependent and neglected, based upon Mother's use of illegal drugs while pregnant with and while parenting the Child and her inability to provide a safe and stable home.

The record reflects that DCS developed a permanency plan on April 16, 2012, and another on February 21, 2013. These plans were ratified by the trial court. Pursuant to the plans, Mother was required to complete an alcohol and drug assessment and follow all recommendations, comply with random drug screening, comply with mental health counseling, remit child support, visit the Child, attend parenting classes, resolve all legal issues, and obtain and maintain housing, employment, and transportation. DCS filed a petition to terminate Mother and Father's parental rights to the Child in April 2013.[2] DCS alleged that termination of Mother's parental rights was supported by the statutory grounds of abandonment for failure to visit, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal.

A hearing was held at which several witnesses testified. Mother, who was in custody at the time of trial, stated that in addition to the Child, she had four other children who no longer lived with her. She testified that when the Child was removed, she tested positive for marijuana and was arrested based upon an outstanding warrant. She was released in June 2012 but was currently incarcerated for failure to pay child support for one of the Child's siblings. She hoped to be released in "the next few weeks" because she believed her arrest was a mistake when her child support payments were automatically deducted from her paycheck. She stated that prior to her current incarceration, she worked at Subway and offered her assistance to an "elderly lady" on a regular basis in return for payment. She claimed that upon her release, she had a place to live with her roommate, Ashley C.

Mother testified that she had completed her parenting classes, had remained drug free, had maintained employment, and had visited the Child pursuant to the permanency plans. She acknowledged that she completed her parenting class in June 2013, two months after the termination petition had been filed. She asserted that her case manager merely gave her a listing of parenting classes in the area. She explained that the list was approximately four years old and that half of the places listed no longer offered classes. She conceded that she had tested positive for marijuana on several occasions since the Child had been removed. She denied using marijuana and claimed that the tests were faulty.

Mother testified that she always provided DCS with a current address. She asserted that from June 2012 through May 2013, DCS only came to her residence on one occasion. She explained that she was not present for that visit because she did not know a visit had been scheduled. She asserted that DCS never assisted her in finding employment. She acknowledged that she was unemployed from March 2012 until December 2012. She explained that she was in custody until June 2012 and that she gave birth to her fifth child in August 2012. She asserted that once she found employment in December 2012, she maintained her position until she tore her rotator cuff six weeks later. After recovering from that injury, she was hired by Subway in March 2013 and maintained her employment until her current arrest for failure to pay child support. She believed that she could return to work at Subway once she was released and that at the very least, she had employment as a caretaker for her friend's mother, the aforementioned "elderly lady."

Mother acknowledged that she was currently unable to parent the Child and that she missed some visitation time with the Child. She explained that she had transportation issues and was incarcerated or hospitalized on several different occasions throughout the Child's placement with DCS. She claimed that she asked DCS for assistance with transportation but that she did not receive help until January 2013, when she was finally given a bus pass. She asserted that despite her inability to maintain visitation, she enjoyed a "wonderful bond" with the Child, who often expressed a desire to come home with her. She conceded that the Child had trouble adjusting to her visitations at first.

Lisca Gaffney testified that she worked for DCS and that she was assigned to Mother's case in September 2012. She claimed that Mother failed to maintain contact with her and that Mother also failed to maintain regular visitation with the Child. She recalled that Mother often blamed her failure to visit on her health, transportation, or lack of housing. She offered several bus passes and ultimately provided one bus pass to assist Mother in maintaining visitation, but Mother still failed to maintain regular visitation. She recalled observing the Child's visitation with Mother and claimed that at first, the Child cried inconsolably and did not want to participate in visitation. She stated that the Child was more amenable to visitation once she included Lindsay B. ("Foster Mother") in the visitations.

Ms. Gaffney testified that she explained the requirements contained in the permanency plans to Mother. She recalled providing Mother with a list of potential employers and advising Mother concerning several options for completing the parenting classes. She also administered four drug screens to Mother, who failed all four screens. She recalled that Mother tested positive for marijuana on each test and had also tested positive for "benzos, [] methadone, and cocaine" on different occasions. She stated that Mother denied using drugs. She attempted to schedule a retest for Mother but explained that Mother was arrested again before she was able to schedule the test. She acknowledged that Mother attempted to complete an alcohol and drug assessment but that the facility was unable to evaluate Mother. She recalled that the Child was born with drugs, namely marijuana and cocaine, in her system. She related that Mother admitted using cocaine once and claimed that her doctor advised her that marijuana was safe to smoke during pregnancy.

Ms. Gaffney testified that Mother did not provide her with proof of employment until August 2013 and that she had been unable to visit Mother's residence. She recalled that she scheduled one visit for the residence in Ooltewah but that Mother was not present at the appointed time. She related that she came to that residence a second time for an unannounced visit only to find that Mother was not home. She asserted that at times, Mother claimed to not have a residence and was reliant upon friends for a place to stay. She related that Mother recently provided her with a lease between Mother and a friend. She was unable to schedule a home visit because Mother was incarcerated again.

Ms. Gaffney testified that the Child currently resided in a foster home with parents that wished to adopt her. She explained that the Child had lived in the home since her removal from Mother and that the Child was "very bonded" to the family. She acknowledged that Mother had made some progress but explained that Mother's progress occurred in the past few months. She claimed that Mother had not made sufficient progress on the permanency plans that would justify returning the Child to Mother. She related that the Child had been in custody for approximately 18 months and had ultimately found permanency in a stable home with a family that was committed to her.

Foster Mother testified that the Child had resided in her home since March 2012. She believed that the Child had bonded with the family, especially her children. She recalled that the Child was initially reserved when visiting with Mother but that the Child eventually adjusted to the visitations. She denied ever hearing the Child ask Mother to take her home. She acknowledged that she had not supervised the visitations in several months. She claimed that she was willing to adopt the Child and that she already considered the Child as part of her family.

Following the presentation of the above evidence, the trial court terminated Mother's parental rights on the statutory grounds of abandonment for failure to visit, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further held that termination of ...


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