Assigned on Briefs June 30, 2014
This is a termination of parental rights case, focusing on Anya G. (“the Child”), the minor child of Melisa G. (“Mother”). In October 2011, temporary custody of the Child was granted to the Tennessee Department of Children’s Services (“DCS”), and the Child was placed in foster care. DCS subsequently filed a petition to terminate the parental rights of Mother and the Child’s father, Michael G., on December 27, 2012.  The petition alleged as statutory grounds for termination abandonment by failure to visit, abandonment by an incarcerated parent who exhibited wanton disregard for the welfare of the child prior to incarceration, and substantial noncompliance with the permanency plans. Following a bench trial, the trial court granted the petition as to Mother upon finding that DCS had proven by clear and convincing evidence the grounds of (1) abandonment by engaging in conduct prior to her incarceration that exhibited a wanton disregard for the welfare of the child and (2) substantial noncompliance with the permanency plans. The court also found clear and convincing evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother has appealed. Discerning no error, we affirm.
Appeal from the Juvenile Court for Hamilton County No. 253263 Robert D. Philyaw, Judge
Berry Foster, Chattanooga, Tennessee, for the appellant, Melisa G.
Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.
Galen Pickard, Chattanooga, Tennessee, Guardian Ad Litem.
Thomas R. Frierson, II, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and D. Michael Swiney, J., joined.
Thomas R. Frierson, II, Judge
I. Factual and Procedural Background
Mother is a parent of two minor children: Samantha M., now age sixteen, and Anya G., now age four. On August 18, 2011, Mother and Samantha were involved in an argument regarding Mother's boyfriend. Mother took the Child, who was two years old at the time, and placed the Child in Mother's vehicle without a car seat. Mother indicated that she was upset and was leaving to "cool off." Fearing for her sister's safety, Samantha tried to stop Mother from departing. During the incident, Mother drove over Samantha's legs with her vehicle. Consequently, Mother was arrested and charged with reckless endangerment. Mother was placed on probation, and DCS began working with Mother regarding both children. Subsequently, a referral was made with regard to Samantha's cutting herself. Upon the DCS workers' interview of Samantha, the daughter allegedly disclosed that Mother was using drugs such as crack cocaine in the home and prostituting herself. Samantha informed DCS that she was the primary caretaker for the Child. Samantha also disclosed that Mother's boyfriend, T.B., was selling illegal drugs from Mother's home.
DCS visited Mother's home on October 3, 2011, finding it to be dirty and unsuitable. Mother failed a drug screen administered by DCS that day, testing positive for both crack cocaine and marijuana. Upon the filing of a petition, temporary custody of the children was awarded to DCS on October 6, 2011. The children were subsequently adjudicated dependent and neglected on December 29, 2011. Mother was arrested on December 7, 2011, and again on April 22, 2012; June 16, 2012; and July 12, 2012. She was incarcerated at the time the petition to terminate parental rights was filed on December 27, 2012.
DCS alleged in its petition, inter alia, that Mother had engaged in mere token visitation with the Child prior to her incarceration, thereby abandoning the Child pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2014). The petition further alleged that Mother had abandoned the Child by engaging in conduct prior to her incarceration that exhibited a wanton disregard for the welfare of the child, also pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv). As an additional ground for termination, the petition alleged that Mother had failed to substantially comply with the terms of her permanency plans, pursuant to Tennessee Code Annotated § 36-1-113(g)(2). Finally, the petition alleged that termination of Mother's parental rights was in the Child's best interest.
The trial court terminated Michael G.'s parental rights on June 4, 2013. The trial regarding Mother's parental rights was conducted over three non-consecutive days in August, September, and October 2013. Although Mother testified on the first day of trial, she failed to appear for the subsequent dates. Mother's attorney informed the court at the beginning of the second day of trial that he had received a message from Mother stating that she was unable to appear due to a medical emergency with a family member. The DCS worker subsequently stated that she had become aware that warrants were recently filed against Mother. The hearing proceeded in Mother's absence.
Following the trial, the court entered an order, finding that Mother's demeanor in court was "that everything was someone else's fault and she smiled and smirked in a way not appropriate for someone in her position as a parent facing the loss of her children." The court's order, inter alia, states:
Karen Tittsworth, DCS worker, testified of the mother's hostile attitude, profanity, and the great lengths to which she would go to be deceptive while this case was pending. Anya came into foster care in October 2011 and Ms. Tittsworth has had the case continually since that time. Mother's goals were to address her addiction, particularly to cocaine, and achieve stable housing and employment. Although she participated in the Transformation Project, testimony showed she was dishonest and deceptive regarding her drug screens and continued to test positive during the pendency of this case.
Partnership worker Yashica Baker likewise testified of the mother's hostility and refusal to submit to drug screens. [Mother] continued to live with her mother even though she and her mother have a volatile relationship. Mother was diagnosed with bi-polar disorder but did not comply with efforts to arrange a mental health assessment.
Mother has never shown proof of employment or any signs of forward progress on the goals on her plan of care. The DCS worker stated they were no closer to returning Anya at this or any other point than when she first came into care. Any meaningful or consistent parenting time was hindered by Mother's frequent periods of incarceration and it is believed she currently has two (2) outstanding warrants. [Mother] continued to maintain a relationship with a man who has a lengthy criminal record and who was, in some part, involved in the incident which led to the removal of the children from the mother's care.
From all of which the Court found the State carried the burden of proof by presenting clear and convincing proof that the mother abandoned Anya [G.] by incarceration, was in substantial non-compliance with the goals of the permanency plan, and that it was in the best interest of the child for the parental rights of the mother to be terminated.
The foster mother, [P.G.], testified of Anya's progress since coming into custody from the constant screaming, lack of communication skills, and inappropriate self-touching. Anya is now in a pre-kindergarten program doing well. She has some aggressive behaviors and suffers from speech problems but does not exhibit the former behaviors since she has not seen her mother for an extended period of time. [P.G.] and her husband are planning to proceed with adoption as soon as that becomes an option.
Following this initial order, the trial court entered a Termination of Parental Rights and Final Decree of Complete Guardianship, terminating Mother's parental rights to the Child. This decree erroneously lists the ground of persistent conditions, pursuant to Tennessee Code Annotated § 36-1-113(g)(3), as an additional basis for termination. Mother timely appealed. While the appeal was pending, DCS filed a motion seeking leave of court to have a corrected order entered. Mother's counsel consented to this action. This Court then remanded the matter to the trial court for entry of a corrected order.
The trial court thereafter entered an Amended Termination of Parental Rights and Final Decree of Complete Guardianship, which decree states in pertinent part:
3. Grounds for the termination of the parental rights of Melisa [G.] to the child, Anya [G.] exist, in that:
(A) Respondent Melisa [G.] abandoned the subject child in that she was incarcerated part of the four (4) months prior to the filing of this Petition which exhibits a wanton disregard for the welfare of the child. Specifically, the mother was arrested on December 7, 2011, April 22, 2012, June 16, 2012, and July 2, 2012, and has just recently been released. The child came into custody on October 5, 2011. The mother is repeatedly incarcerated and continues to test positive for drugs for which she has no prescription. Respondent continued to incur criminal charges and violate her probation by testing positive for cocaine.
(B) Respondent, Melisa [G.], has failed to comply in a substantial manner with the statement of responsibilities set out in periodic foster care plans prepared for and signed by said Respondent, following the subject child being found to be dependent and neglected by the Juvenile Court of Hamilton County. [DCS] has explained to Respondent those reasonable responsibilities, which are directly related and aimed at remedying the conditions, which necessitate foster care placement. Specifically, Respondent failed to: obtain stable housing, refused to complete a mental health assessment which was to be paid for by the Department, did not follow through with drug treatment as recommended by her alcohol and drug assessment, has continued to incur criminal charges and violate her probation, has tested positive for cocaine, has not addressed domestic violence issues, and has not participated in individual or family counseling. The mother later violated her probation in April 2012 because she was arrested again for vandalism and malicious mischief. The mother tested positive for cocaine on May 8, 2012 in her initial testing to restart probation and her levels were extraordinarily high.
4. Pursuant to T.C.A. § 36-1-113(i), it is for the best interest of the subject child and the public that all of the parental rights of the Respondent, Melisa [G.], to the child, Anya [G.] be forever terminated and that the custody, control and complete guardianship of said child should now be awarded to the State of Tennessee, Department of Children's Services with the right to place said child for adoption and to consent to any adoption in loco parentis, in that
(a) Respondent, Melisa [G.], has not maintained regular visitation or other contact with the child.
(b) There is no meaningful relationship between the Respondent and child.
(c) A change of caretakers and home is likely to have a highly negative effect on the child. The child is in an adoptive home ...